Virginia Real Estate, Land Use & Construction Law : Virginia Construction Lawyers & Attorneys : Bean Kinney & Korman Law Firm : VA Real Estate, Land Use & Zoning

Here is a sampling of cases to watch for in 2010. The Virginia Supreme Court has granted appeals for these cases earlier this year, and will hear argument in 2010.

In May, the Court granted the appeal in W &W Partnership v. Prince William County BZA, et al., Record No. 090328, challenging the ruling of Judge Whisenant from the Prince William County Circuit Court. At issue in this case is whether a deed legally subdivided a parent tract of land, creating a separate lot and entitling the lot to its own GPIN and address. The Court will likely set the argument for this case in early 2010.

July was a busy month for the Court, accepting petitions and granting appeals in numerous real estate related cases. First up is Anton E.B. Schefer v. City Council of the City of Falls Church, Record No. 090803, contesting a ruling by Judge Newman of the Arlington County Circuit Court. This case will analyze whether a City of Falls Church zoning ordinance imposed height regulations on the appellant’s property that were more restrictive than regulations for other identically zoned properties, and whether the ordinance should be struck down on an equal protection theory.

The Virginia Supreme Court granted a second appeal from a ruling by Judge Newman in the Arlington County Circuit Court, TIR Conaill Properties, L.C. v. 2401 Wilson, LLC, Record No. 090855. This commercial lease dispute case will examine whether the plaintiff could sue using its trade name, and whether the trial court properly considered discovery deposition testimony.

Next, we have Bailey v. Town of Saltville, Record No. 090989, challenging the decision by Judge Lowe of the Circuit Court of Washington County. The Court will consider whether a 1909 agreement and a 1909 deed conveying a “right of way” for a “single track railway” granted a fee simple interest or only an easement to the railway company.

In September, the Court accepted the petition in Advanced Towing Co. LLC, et al. v. Fairfax County Board of Supervisors, Record No. 091180. This appeal disputes the ruling by Judge White of the Fairfax County Circuit Court, who refused to find that a Fairfax County Code provision contravened the Dillon Rule and was enacted ultra vires.

Stay posted as we keep an eye out for these cases and others!
 

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The economic loss rule defines that most basic of questions: who can sue whom and for what claims.  Virginia still sticks to an extremely Conservative judicial model and this philosophical thread is readily apparent in cases dealing with this question.  The Virginia economic loss rule provides that in order to sue a party for "economic losses", the plaintiff generally needs to have a contract with the defendant.

The rule is simply stated in isolation, but proves to be a source of continuing debate, especially in construction litigation.  The seminal Virginia case, Sensenbrenner v. Rust, Orling & Neale, sets the groundwork with its definition of "economic losses".  In the Sensenbrenner case, the plaintiffs purchased a home with an indoor pool from a builder.  The plaintiffs claimed that the pool was negligently designed and built on fill, settled, and caused leaking from broken pipes.  This water in turn was alleged to have caused the bottom of the pool and the foundation of the house to crack.

The court discussed the differences between contract and tort.  While tort law easily handles legally imposed duties, tort law "is not designed, however, to compensate parties for losses suffered as a breach of duties assumed only by agreement."  The court found that the plaintiffs entered into a single contract for construction of a home with a pool.  When one part of the home damaged another, the plaintiffs suffered nothing more than "disappointed economic expectations."  Thus, their remedy sounded in contract.  They had no contract with the architect or pool installation subcontractor, so their claims failed as a matter of law.

When all the parties are still standing, the economic loss rule basically forces parties to stick to the food chain for their remedies.  This naturally means that risk allocation provisions really have teeth under Virginia law because courts will often block plaintiffs from slipping away from these clauses by restating their contract claims in tort.  In today's quite risky economy, the economic loss rule means that a bankruptcy at some point in the contract chain of privity can often let a whole chain of potentially liable parties off the hook.

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The first trial in the infamous Chinese drywall litigation will apparently involve seven Virginia homeowners.  The first case is currently set for a bench trial on January 25, 2010. 

We have written several times regarding the Chinese drywall litigation, including several months ago in Mid Atlantic Construction.  While Virginia plaintiffs will apparently occupy the first position on the trial docket, our area in Northern Virginia has thus far been very quiet to silent on this front.  The Tidewater area has been a little different as a supplier there sold a fairly significant quantity of the drywall that was used locally.

The Chinese drywall is just the most recent wave of products liability litigation to erupt across the construction industry.  The past several waves, such as the fire retardant plywood, plumbing material, and EIFS systems litigation, each pointed out that getting around the economic loss rule in Virginia is extremely difficult.  The economic loss rule in Virginia provides that a party suing for "economic losses" is seeking a contractual remedy and must demonstrate privity of contract to recover.

The economic loss rule and its various permutations is one of the most important legal issues in construction litigation in Virginia.  As such, we are going to take the change to explore the economic loss rule and discuss it over several posts moving forward.

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After a 19 day bench trial, on Wednesday evening a federal judge ruled in favor of six plaintiffs seeking compensation against the United States under the Federal Tort Claims Act for damages flowing from Hurricane Katrina.  The court ruled that the United States was liable because the flooding leading to the homeowners' damages was caused by negligent maintenance of a significant navigation channel by the US Army Corps of Engineers.  The total verdict was for under $750,000 for the six plaintiffs; however, the result exposes the United States to liability claims for many other claimants who resided in the Lower Ninth Ward of New Orleans and St. Bernard Parish.

The 156 page opinion constitutes a detailed, highly technical history of the Corps' efforts to design and maintain shipping channels while still providing protection from storms and flooding.  The clear message in the case is that the judge found the Corps was far more concerned about shipping than safety.  The opinion is filled with not only a detailed technical history, but also a series of damning quotes which simply skewer the Corps.  Page 22: "[T]he Corps clearly took the position that its primary position was to keep the shipping channel open to deep draft traffic regardless of the consequences."

Page 26:  "... the sole focus of the Corps was the guarantee the navigability of the channel without regard to the safety of the inhabitants of the area or to the environment."

Page 32: "As to the north shore, the callous and/or myopic approach of the Corps to the obvious deleterious nature of the MRGO is beyond understanding."

Page 41:

Thus, as overwhelmingly demonstrated at trial, this subsequent erosion resulting in the width of the channel increasing by more than 3 times its authorized width was caused by the Corps' failure to armor the banks of the MRGO to prevent (1) boat wakes causing erosion of the banks; 2) excavation and maintenance dredging causing bank slumping; and 3) saltwater instrusion killing vegetation and promoting organic decay.

Page 111:  "The Corps' lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions.  The Corps' negligence resulted in the wasting of millions of dollars in flood protection measures and billions of dollars in Congressional outlays to help this region recover from such a catastrophe."

Turning to the legal arguments in the case, the court rejected the United States' argument that the Flood Control Act barred the suit.  The court further found that the plaintiffs were entitled to recover in tort under the Federal Tort Claims Act.  The court expressly found that the Corps had failed to use due care and that its actions were not policy decisions, but instead were technical and engineering functions.  As a result, the court rejected the government's arguments that it was entitled to escape liability for its negligence.

This decision is almost certainly not the end, even for these plaintiffs.  The government is expected to appeal.  Given the precedential impact of this litigation, this is easily a case that could garner the interest of the United States Supreme Court.  Nevertheless, the extensive ruling is a damning critique on the Corps of Engineers and its role in contributing to the Katrina disasater.

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Earlier this year, the Virginia Supreme Court decided Martin Brothers Contractors, Inc. v. Virginia Military Institute, taking the opportunity to revisit its decision in Blake Construction.

The Virginia Military Institute (“VMI”) contracted with Martin Brothers to renovate VMI’s main dining facility. During the project, VMI requested changes resulting in a 270-day delay. VMI agreed that it alone was responsible for the delay. Martin Brothers sought $430,242.56 in delay damages plus the costs of recovery.

VMI paid only a portion of Martin Brothers’ delay claim, relying on terms found in the contract’s General Conditions. General Condition 43(b) stated that Martin Brothers could recover damages for owner-caused delay, provided the delay was “unreasonable” [sound familiar?!]. In such a case, Martin Brothers would be permitted to submit a change order adding additional days for completion of work. The General Condition governing change orders allowed some, but not all, site direct overhead expenses for delay, and disallowed all home office expenses. The same General Condition contained a subsection allowing a fifteen percent markup for overhead and profit. Martin Brothers’ claim included $225,937.40 in site delay damages and $204,305.16 in home office delay damages. Based on the language in the relevant General Conditions, VMI agreed to pay only $99.646.20 in site damages and refused to pay any home office damages.

At the trial court level, VMI successfully convinced the Circuit Court that the contract's terms, including its markup provisions, amounted to “liquidated damages,” one of the specifically enumerated exceptions in Virginia Code Section 2.2-4335 (B). The Virginia Supreme Court didn’t buy this argument, going right back to its decision in Blake Construction. The Court reiterated that Section 2.2-4335 “means what it says”:

Any provision…to waive, release, or extinguish the rights of a contractor to recover costs or damages for unreasonable delay in performing [a public construction contract]…shall be void.

The only exceptions to this broad language are those specifically enacted by statute, including Section 2.2-4335 (B):

1. provisions allowing a public body to recoup costs for delay caused by the contractor, subcontractors, and their agents and employees;
2. notice requirements;
3. liquidated damages; and
4. arbitration or other forms of alternative dispute resolution.

In analyzing whether the terms of the contract were in fact a liquidated damages clause, the Virginia Supreme Court asked whether Martin Brothers and VMI had actually entered into an agreement for the calculation of delay damages. VMI argued that the claimed home office expenses and all site expenses beyond $99,646.20 were included in the markup provisions, amounting to an agreed method of calculating the delay damages, and therefore a valid and enforceable liquidated damages clause.

The Court saw past this argument, pointing out that the markup provisions compensate Martin Brothers for added work required by VMI’s change order, but provide no compensation at all for extra expenses resulting purely from the delay. For instance, if VMI issued a change order requiring extra work, and Martin Brothers was able to complete the extra work on time, Martin Brothers would be entitled to its fifteen percent markup. However, if the extra work delayed the project by a year, Martin Brothers would still be entitled only to its fifteen percent markup, and nothing at all for the delay.

The Court concluded that the General Conditions with its markup provisions were not actually an agreed formula to calculate delay damages, and therefore not covered by Section 2.2-4335 (B)'s liquidated damages exception. Because the terms of the contract that VMI relied up acted as an absolute bar to most of the delay expenses incurred by Martin Brothers, the Court declared those terms void and unenforceable as against public policy.

In the wake of Martin Brothers, public bodies will likely become more and more creative in drafting supposed “liquidated damages” provisions. Take comfort in the Virginia Supreme Court’s and the General Assembly’s strong protection of a contractor’s right to delay damages in public contracts, and carefully scrutinize these provisions before you sign a contract.
 

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The Washington Post reported on Sunday that the Obama administration will propose taking over safety regulation of subways and light rail, including the regional Metro system.  Metro has been taking a regular beating in the press recently for safety concerns and its anemic response to those concerns.  Metro has apparently gone so far to frustrate efforts to investigate its safety procedures and efforts that it has barred independent monitors from walking along its subway tracks, even escorted by Metro employees, to observe its procedures in practice. 

The frightening revelation is that the safety oversight is apparently imposted by a relatively powerless, "Tri-State Oversight Committee", "which has no employees, office or phone number.  It also has no direct regulatory authority over Metro."   Locally, concerns regarding Metro's safety have mushroomed following a June 22, 2009 crash that left nine people dead and injured 80.  Since then, the Washington Post has reported an another "dangerously close" near miss, an August 9 fatality when track repairman Michael Nash was struck and killed, and another fatality when a Metro technician John Moore was killed in a separate incident in September.

I believe that density based development around the Metro corridors is critical to long-term regional success, reduction of carbon footprint, reduction of use of non-renewable fossil fuels, and reversing or at least slowing down the traffic impacts of decades of sprawl.  A trusted, safe and reliable Metro system is a prerequisite to this entire style of development working.  In particular, the rail extension to Dulles Airport and the interconnected plans to redevelop Tyson's Corner into a more intelligently designed, denser urban center with improved walkability are crucial to the successful continued vitality of the entire region.  Leaving the success of these important ventures in the hands of a powerless committee with no direct regulatory authority is simply not acceptable.

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There are three kinds of lies: lies, damned lies, and statistics.

Mark Twain, paraphrasing Benjamin Disraeli

We have a new and very interesting recent report on green building to examine, the Regional Green Building Case Study Project: A post-occupancy study of LEED projects in Illinois. The Illinois report studied a mix of projects of various certifications levels, certified under various versions of LEED, with various applications, that used various baselines, and that used various reporting methods for utilities. The small sample and disparate projects involved lends itself towards a scattershot of data.

The study found a range of cost premiums for green construction (after grants and incentives) at 0.6% to 6.9% of project cost with 3.8% increase as the mean. The Illinois report found that projects focusing on energy efficiency tended to have better energy efficiency (quite a V-8 moment I am sure). Interestingly, the Illinois report found no meaningful correlation between the level of LEED certification and the energy performance of the buildings involved … this may be an off-shoot of the limited sample size.

The most interesting point from the Illinois study was in the details regarding energy modeling. Sixteen projects used energy design models. Of these sixteen projects, twelve projects performed worse than design models … six of them using 100% to a whopping 250% more energy than anticipated in the model. Seventeen projects used at least baseline models and remarkably seven of the projects showed actual energy use above the baseline!

To me, to have energy use of these structures exceed the original baseline is flat out staggering. Looking into the project details, one big factor was more intensive use and occupancy figures than modeled. This continues to point out the flaw of expecting too much from energy modeling that we have previously discussed. In addition, we continue to see the problem of trying to draw averages from lumping apples and oranges together. As someone recently said in a meeting on green building, drawing statistically across these projects appears far less educational and valid than more in-depth case study analysis of the specific individual projects.

(Hat tip to our friend Heidi Schwartz for commenting on this and sending us the report)
 

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Mediation is often touted as a time and cost-saving method of dispute resolution in construction matters.  It is not without its critics.  Don Short recently posted a discussion,  "Why Bother with Mediation?".  Mr. Short's basic postion: "... mediation of a construction dispute is just an impediment to getting the matter resolved in a timely and cost efficient manner."  Mr. Short followed up in his piece "When Not to Use Mediation?" amplifying on the theme that time was money and that mediation clauses permitted a recalcitrant party to string the process out.

I have inserted pre-litigation and/or pre-arbitration mediation clauses into literally every single construction contract I draft.  The result has been overwhelmingly positive.  In my practice, I have seen very significant cases on very significant projects get resolved regularly at mediation with no lawsuit or arbitration demand filed.  The number of cases resolved compared to the number of useless exercise mediations like those described by Mr. Short is likely on a ratio of 20:1 or greater.  Even cases that do not settle initially often resolve soon thereafter based on the foundation established during mediation.  The cases that were going to be a waste of time to mediate had warning signs all over them and we gauged our approach and investment accordingly. 

Our good friend Victoria Pynchon had a slightly different view that being contractually required to mediate before the parties were ready would probably be another roadblock to eventual resolution. I agree that mediating before the parties are ready is a waste of time, money and resources and can be counter-productive.  I generally have been able to negotiate exchange of appropriate information prior to mediation to facilitate meaningful conversations.

I am mindful that it is somewhat counterintuitive to make a party mediate.  Utimately, mediation needs two parties that are open to discussion, risk evaluation and potential settlement talks.  Sometimes that cake needs to bake in the oven far longer before the parties are ready.  Generally, however, the mediation clause represents the parties agreeing that sitting down and talking to resolve issues is better than fighting in court or arbitration.  More often than not, it works.  Call me a cynic, but at times it feels like many lawyers only want to get to mediation when "their fee has fully matured".  By that time, much of the potential benefit of mediation has evaporated and the positions of the parties may have been hardened by the emotional and financial investment of litigation.  Getting lawyers and parties to mediation without such a clause often ends up taking far too long and involve ultimately wasted significant litigation expense. 

This viewpoint is admittedly anecdotal and developed over my years of practice and experience.  Do you see these clauses working to resolve cases efficiently or simply delaying the inevitable and costing time and money like Mr. Short?  Do you believe that placing the obligation rather than allowing the parties to mutually decide to mediate facilitates resolution or acts as an impediment?  Or do you think the quicker to the mediation table the better?

Image by Judepics

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Today we tip our toe, quite gingerly we might add, into the ugly place where preliminary statistics and politics meet. In the last week, print news and the internet have been awash with reports on stimulus spending today and estimates of the impact that spending has had a jobs created or saved. In particular, Chris Thorman and Don Fornes of Construction Software Advice have culled through the quarterly reports which are publicly available at www.recovery.gov and provided a detailed state-by-state breakdown of construction stimulus spending amounts awarded, amounts "received", jobs created and the cost per job (this article was also posted to ENR's blog and both have separate comments).

In general, the "cost per job" analysis of stimulus funding has triggered political ugliness reaching internet meme proportions. The "Usual Suspects" have regularly weighed in to the debate. In January, Rep. John Boehner (R-OH) ripped into the stimulus spending arguing that "the plan would spend a whopping $275,000 in taxpayer dollars for every new job it aims to create". In reply, economist Paul Krugman called Boehner's approach a "bogus talking point" that "involves taking the cost of a plan that will extend over several years, creating millions of jobs each year, and dividing it by the jobs created in just one of those years." With the latest quarterly numbers, the political machines for both sides have cranked up and marched out the latest updated versions of the talking points. We will leave it to our individual readers to decide whether the "Usual Suspects" refers to the motley line-up crew from Casablanca or Keyser Soze.

On a regional level, the data from Construction Software Advice provides some real points of interest. First, comparing amounts awarded to amounts received, there is a huge divergence amongst Maryland, Virginia and the District of Columbia in the flow of money. Maryland has "received" close to half the awarded funding. Virginia has received only 34%. The District has only received 5.5% of the $1,900,000,000 awarded (the most regionally). This tells us that in terms of the DC region, a huge amount of the money has not even been "received" yet and we can expect continuing economic impact, particularly from the DC projects. The underlying data may also face significant adjustment over time as corrections and changes are made, a reality that even the Recovery.gov site recognizes on-going data correction impacts the analysis. The precise measurement of jobs "created or saved", especially indirect jobs, appears to very difficult if not impossible.

It strikes us that at some point, a post mortem on cost per job will be appropriate and necessary, but at this stage it is difficult if not impossible for that exercise to be meaningful. Construction jobs in particular involve significant ramp up and as such stimulus funding that may have initiated the project will likely not see full employment fruition of jobs created or saved for some time. The Construction Software Advice report expressly recognizes these limitations stating, "With 76,214 jobs created/saved during this reporting period, the number will undoubtedly go up in future months as more projects begin and as more projects enter more labor-intensive phases." What we take from this information is that there are a lot of stimulus dollars, in particular construction stimulus dollars, in particular in this region, that have yet to be spent.  (Hat tip to our friend Rob Geedra from Geedra.com for passing along this link).

Image by Ereneta

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As announced previously, we were very happy to participate in a recent seminar on government contracting in connection with the Associated Builders and Contractors - Metro Washington Chapter.  The seminar, which took place last week, was a great success with a room that was filled to capacity, some great speakers and information, and very enjoyable and educational experience for me as a participant and speaker.  The response is certainly indicative of the interest in government contracting topics right now.

For those interested, here is a copy of our presentation materials which addressed different contract vehicles and bidding methods, common procurement issues, and the process of bid protests in particular.

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In the recent case of Martin Brothers Construction, Inc. v. Virginia Military Institute [pdf], the Virginia Supreme Court was confronted with whether Martin Brothers was able to claim delay costs, re-examining its 2003 opinion, Blake Construction Company, Inc./Poole & Kent v. Upper Occoquan Sewage Authority [pdf]. This post will review the Blake Construction opinion, and set the stage for the next blog post on Martin Brothers.

Blake Construction presented the Court with its first opportunity to examine a contract limiting delay damages in light of Virginia Code Section 2.2-4335 (A) [pdf], which states in part:

Any provision contained in any public construction contract that purports to waive, release, or extinguish the rights of a contractor to recover costs or damages for unreasonable delay in performing such contract, either on his behalf of on behalf of his subcontractor if and to the extent the delay is caused by acts or omissions of the public body, its agents or employees and due to causes within their control shall be void and unenforceable as against public policy.

The Court analyzed two contractual provisions, easily finding that the first was directly contrary to Section 2.2-4335 and therefore void as against public policy. That provision stated that an extension of time would provide the sole remedy for delay, and that the contractor agreed to make no claim for delay damages for “any sort of delay…for any reason, including but not limited to delay occasioned by any act or failure to act of the Owner.”

The rub in the case was the second provision, which tried to temper the blanket prohibition on delay damages. The second provision allowed the contractor to recover “additional compensation for the actual and direct costs” from unreasonable delay caused by the owner or engineer, provided that the contractor complied with notice and submission requirements. The provision also included a definition of “unreasonable delay” as amounting to bad faith, malice, gross negligence or abandonment.

As it should have, the Court began with the plain language of Section 2.2-4335, and the sweeping language by the General Assembly declaring any provision limiting delay damages as void. Viewed through that lens, the Court was not concerned about the language limiting delay damages to those within the owner’s control and requiring the contractor to give notice, because these were specific exceptions included in Section 2.2-4335 (A) and (B)(2). The Court was less forgiving about the bar for unreasonable delay damages except upon the owner’s bad faith, malice, gross negligence or abandonment, concluding that such a bar was void and unenforceable as against public policy under Section 2.2-4335.

The lesson to take from Blake Construction is to carefully compare any delay provisions in a public contract to Section 2.2-4335. A court is likely to find unenforceable and void delay provisions that go beyond Section 2.2-4335 (B), which specifically allows: (1) provisions allowing a public body to recoup costs for delay caused by the contractor, subcontractors, and their agents and employees; (2) notice requirements; (3) liquidated damages; and (4) arbitration or other forms of alternative dispute resolution.

Two more things to know about Section 2.2-4335: Under Subsection (C), a contractor making a delay claim is liable for a percentage of the public body’s costs to investigate, analyze, negotiate, litigate or arbitrate the claim. Under Subsection (D), a public body denying a delay claim is liable to the contractor for a percentage of the same kinds of costs, but only if determined in litigation or arbitration to have been in bad faith.

Stay tuned for the outcome of Martin Brothers in Part II of this post! I’ll give you a hint – we’ll look at Section 2.2-4335 (B)’s liquidated damages exception.
 

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A post this weekend by our friend Andrea Goldman raises the interesting question of “why bother with LEED certification”? The post highlights a recent profile on the highly sustainable Hutton Hotel project in Nashville which elected to forego seeking LEED registration and certification. In particular, Hutton Hotel representatives are quoted as saying:

Doing the government documents alone cost $50,000. Also, the paperwork is so complicated you have to hire an expert to do it. They make the certification a little onerous so everyone won’t pile on. You also need engineers that do testing. It’s a whole process.

If the goal truly is to develop more sustainable, energy efficient and better performing buildings, perhaps that is where a project’s generally limited resources should be directed. The question is how less technically savvy owners, developers, and even perhaps government officials are able to evaluate how “green” are these buildings. USGBC has been able to carve out a niche and indeed expand that niche into widespread identification of LEED being synonymous with green building and presenting LEED as the most credible source of third party validation of green design and construction.

The questions raised by Hutton Hotel are not unique. Indeed, last week I had a long conversation with a longtime client who builds very upscale homes. He remarked that their design and building practice had “been what people are calling green now” for years. He added that LEED did not make sense for them because of its lack of teeth regarding energy performance.  These comments echo the themes of our earlier discussions regarding critiques of LEED and energy performance, its efforts to incorporate post-occupancy energy reporting, and the changes in credit emphasis in LEED 3.0.

In the end, the ability of LEED to succeed relies upon its stance as an accepted source for third party validation is critically dependent on its ability to maintain credibility. It is for this reason that the recent critiques of energy performance of LEED certified buildings and the USGBC’s efforts to address energy performance issues are so important to USGBC’s long term success.  It seems to us that in addition, third party validation relies in part on the market necessity to "prove" a project is green rather than having a knowledgeable marketplace already in position to make that evaluation on its own.  As marketplace knowledge and information improves, perhaps the need for third party validation begins to erode over time.
 

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