- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
1004 Palace Plaza, LLC v. Ebadom Food, LLC, 2019 U.S. Dist. LEXIS 118320 (E.D. Va. July 15, 2019)
1004 Palace Plaza, LLC (“Palace Plaza”) and Edabom Food, LLC (“Edam Food”) were parties to a 10-year lease for a commercial space that was to be used as a restaurant. The lease contained a 7-month rent grace period for the build-out of the space and required Edam Food to provide Palace Plaza with building plans within 14 days of executing the lease. Palace Plaza alleged that Edam Food did not provide building plans within the 14-day period, was not able to complete the build-out of the property on schedule in order to open the restaurant on time, did not get the required permits from the county, and ordered work to continue despite not having the required permits. Edam Food counterclaimed and asserted that Palace Plaza was responsible for certain aspects of the buildout and permitting which it failed to complete, hid issues from Edam Food regarding the buildout in order to have Edam Food begin paying rent and to foist additional costs on Edam Food.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Afresh Church v. City of Winchester, 2019 U.S. Dist. LEXIS 109975, 2019 WL 2746757 (W.D. Va. July 1, 2019)
Afresh Church (“Afresh”) has a leasehold interest in a building (the “Building”) owned by Farmont Avenue Holdings, LLC (the “Owner”) and located in an area designated as a “limited industrial district.” The City of Winchester (the “City”) has cited the Owner several times for allowing church services to be held in the Building because the area is not zoned for churches. While church uses are not expressly prohibited by the ordinances, they are not included in the list of allowed businesses and activities. Afresh sought a declaratory judgment that the City’s zoning ordinance and its enforcement action against the Owner violates Afresh’s rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and to enjoin the City from pursuing any enforcement or other action against the Owner that would affect Afresh’s ability to continue to use the Building.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
L-3 Communs. Corp. v. Serco, Inc., 926 F.3d 85 (4th Cir. 2019)
In 2004, the United States Air Force Space Command (“Air Force”) awarded Serco, Inc. (“Serco”) an indefinite delivery indefinite quantity contract (the “Prime Contract”). The Prime Contract required Serco to provide testing and upgrading services to certain Air Force facilities to protect those sites from high altitude electromagnetic pulse (“HEMP”) events. Under the Prime Contract, the Air Force would periodically provide Serco with a statement of work that outlined the requirements for a specific HEMP-related project. If Serco could not complete the work itself, Serco would issue a request for proposal (“RFP”). Serco entered into a subcontract for HEMP-related work (the “Subcontract”) with Titan Corporation, a predecessor to L-3 Applied Technologies, Inc. (“L-3 ATI”). The Subcontract stated that Serco was not required to issue any work to L-3 ATI and that L-3 ATI was still required to bid on HEMP-related work. Between 2004 and 2009, Serco awarded
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Morris v. DSA Roanoke, LLC, 2019 Va. Cir. LEXIS 204 (City of Roanoke Cir. Ct. May 31, 2019)
The Court granted Thomas Builders, Inc.’s (“Thomas Builders”) demurrer as to Count I of the Amended Complaint of Third-Party Plaintiff DSA Roanoke, LLC (“DSA”) because “a grant of demurrer is appropriate in an instance where an indemnification provision in a construction contract can only function to indemnify a party from damages caused by its own negligence.” Although the court held that the indemnification provision did not on its face violate Virginia Code § 11-4.1 (i.e. Virginia’s anti-indemnity statute) dismissal of the claim “accords with the public policy goals behind Virginia’s restriction against provisions that provide such indemnification.”
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Myers Controlled Power, LLC v. Gold (Truland Grp., Inc.), 2019 U.S. Dist. LEXIS 88127, 2019 WL 2251704 (E.D. Va. May 24, 2019)
The Washington Metropolitan Area Transit Authority (“WMATA”) engaged Clark Construction Group, LLC (“Clark Construction”) to serve as the prime contractor on the Orange and Blue Lines project. Clark Construction subcontracted with Truland Walker Seal Transportation, Inc. (“TWST”), one of several affiliated companies performing electrical contracting work under the name “Truland.” The subcontract between Clark Construction and Truland included a “flow-down” provision requiring TWST to pay all subcontractors and suppliers. TWST decided to use Myers Controlled Power, LLC (“Myers”) as a second-tier subcontractor to provide electrical equipment and switches. Myers did not contract with TWST directly; rather, it signed a supplier subcontract with Nationwide Electrical Services, Inc. (“NES”), a disadvantaged business enterprise. Myers sent all but one of its invoices to NES, but took its directions exclusively from TWST.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Hyde Park Free Will Baptist Church v. Skye-Brynn Enters., 2019 Va. Cir. LEXIS 163 (City of Norfolk Cir. Ct. May 24, 2019)
On May 14, 2015, Hyde Park Free Will Baptist Church (“Hyde Park”) contracted with Skye-Brynn Enterprises, Inc. (“Skye-Brynn”) for Skye-Brynn to install a liquid roof membrane system on top of the existing church roof to repair the leaking roof. Around October 2015, Skye-Brynn informed Hyde Park that the roof was completed and Hyde Park paid Skye-Brynn the remainder of the contract price. However, some of the roof’s existing leaks were worse than before and some new leaks developed. Hyde Park notified Skye-Brynn of the leaks shortly after its completion of the roof work and provided Skye-Brynn with the opportunity to correct the roof leaks.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Balfour Beatty Infrastructure, Inc. v. Precision Constr. & Mgmt. Grp., LLC, 2019 U.S. Dist. LEXIS 86832, 2019 WL 2216470 (E.D. Va. May 22, 2019)
Balfour Beatty Infrastructure, Inc. v. Precision Constr. & Mgmt. Grp., LLC, 2019 U.S. Dist. LEXIS 87692, 2019 WL 2224966 (E.D. Va. May 6, 2019)
On July 14, 2016, Balfour Beatty Infrastructure, Inc. (“Balfour Beatty”) and Precision Construction and Management Group, LLC dba Precision Electrical & Instrumentation (“Precision”) entered into a firm lump sum subcontract (the “Subcontract”) in the amount of $1,266,171.00 for Precision to perform the electrical work for the Broad Run WRF Biosolids Project for Loudoun Water (the “Project”). The Subcontract provided that Precision was liable to Balfour Beatty for all damages and liability associated with Precision’s default, including attorney’s fees, enforcing the
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Hensel Phelps Constr. Co. v. Perdomo Indus., LLC, 2019 U.S. Dist. LEXIS 82636, 2019 WL 2111530 (E.D. Va. March 14, 2019)
Hensel Phelps Constr. Co. v. Perdomo Indus., LLC, 2019 U.S. Dist. LEXIS 81623, 2019 WL 2112955 (E.D. Va. May 14, 2019)
On May 12, 2016, Hensel Phelps Construction Co. (“Hensel Phelps”) and Perdomo Industrial, LLC (“Perdomo”) entered into a subcontract for the Freedom Plaza Project (the “Subcontract”). As of December 19, 2016, Perdomo was in default under the Subcontract. If a party defaults, the Subcontract requires that such claims or disputes be arbitrated pursuant to the AAA’s Rules for Construction Industry (“AAA Rules”) and that the arbitrator’s decision is final, conclusive, and binding on the parties and enforceable in a court of competent jurisdiction. On February 27, 2017, Hensel Phelps filed a Demand for Arbitration against Perdomo and its surety, Allied World Insurance Company (“Allied”). On May 21-25 and June 4-7 of 2018, an evidentiary hearing was conducted before an arbitration panel, which Perdomo failed to appear at the hearings. On August 21, 2018, the arbitration panel issued an award in Hensel Phelps favor in the amount of
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Fluor Enters. v. Mitsubishi Hitachi Power Sys. Ams., Inc., 2019 U.S. Dist. LEXIS 65470, 2019 WL 1620755 (E.D. Va. April 16, 2019)
In February of 2012, Mitsubishi Hitachi Power Systems Americas, Inc. (“Mitsubishi”) entered into a Turbine Supply Agreement (“TSA”) with Virginia Electric and Power Company (“VEPCO”) to sell turbine generators to VEPCO for a power generating facility (the “Brunswick Project”). In July of 2012, VEPCO contracted with Fluor Enterprises, Inc. (“Fluor”) for Fluor to construct the Brunswick Project (the “Fluor Contract”). Around the same time, VEPCO assigned the TSA to Fluor through a Partial Assignment, Assumption, and Coordination Agreement (“Assignment Agreement”), but VEPCO retained the obligation to pay Mitsubishi per the terms of the TSA. Both the TSA and the Assignment Agreement contained jury trial waiver provisions.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
Henderson v. Senior Living Choices of Va., Inc., No. CL17-1634 (Chesterfield Cnty. Cir. Ct. Apr. 4, 2019)
Defendant owner Senior Living Choices of Virginia, Inc. (“SLC”) retained plaintiff contractor Henderson, Inc. (“Henderson”) to manage a major $42 million expansion and renovation of the Brandermill Woods assisted living facility in Chesterfield County, Virginia. In June 2017, Henderson sued SLC for breach of contract in the amount of $1.4 million, including “failing to obtain the required permits and respond to requests and proposed change orders.” SLC counterclaimed for Henderson’s alleged “failing to obtain required permits, failing to properly manage the project” and for unnecessary charges. SLC alleged its damages for delay in completion, loss of revenue, and other costs in the amount of $7.1 million.
- Written by: Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith
W. World Ins. v. Air Tech, Inc., 2019 U.S. Dist. LEXIS 53683, 2019 WL 1434666 (W.D. Va. Mar. 29, 2019)
In February of 2015, Air Tech, Inc. (“Air Tech”) entered into a subcontract with Hall’s Construction Corp. (“Hall’s Construction”) to supply a Solvent Recovery Chiller (the “Chiller”) as part of a construction project Hall’s Construction had undertaken for BAE Ordinance Systems, Inc. The Chiller was delivered and installed. Thereafter, the Chiller failed, which resulted in Hall’s Construction having to replace the Chiller. In February of 2017, Hall’s Construction sued Air Tech in state court (the “State Court Action”). In August of 2017, Hall’s Construction amended its complaint to add Johnson Controls, Inc. (“Johnson Controls”) as a defendant. Western World Insurance Company (“Western World”) had issued a commercial insurance policy to Air Tech with
