Volume 3 - Number 39 | September 26, 2005 - Construction Claims Advisor

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You are here: Home » Volume 3 - Number 39 | September 26, 2005

Volume 3 - Number 39 | September 26, 2005

EDITOR'S NOTES | Issue 3-39: Flexing judiciary muscle is a prerogative of each court. This includes considering extrinsic evidence, as we see in this week’s first case—LBL Skysystems v. APG-America. It also includes a court changing its mind about past rulings, as did Nebraska’s Supreme Court in Moglia v. McNeil Co. A court can apply contract limits on suing parties, as one did on a surety in an arson case. And, it can take a very narrow approach to interpreting statutes, which another did in a statute of limitations dispute for a bond claim. And finally, the judiciary as a whole can sometimes change its own rules, as the federal judiciary has done in voting to allow attorneys to cite unpublished appellate decisions in court.

COURT USES “EXTRINSIC” EVIDENCE TO RENDER DECISION: By Steven J. Koprince
When a contractor and its sub disagree on who should furnish structural steel for an airport renovation project, the court turns to extrinsic evidence and the prime contract to make a decision.

IMPLIED WARRANTY IS INCLUDED AS PART OF HOME SALE: A general contractor is not released from an implied warranty of workmanship when the owner sells the property, a state supreme court rules. The warranty stays with the property, not the owner.

CONTRACT WAIVER FORCES INSURANCE COMPANY TO PAY THE TAB: An appeals court extinguishes a surety’s attempt to recover monies paid in an arson case. The court says since the owner can’t sue the contractor for negligence and breach (thanks to a contract waiver), neither can the insurer.