Construction Law Insights

Appalachian Power Co. v. Wagman Heavy Civil, Inc., 2018 U.S. Dist. LEXIS 201259, 2019 WL 6188303 (W.D. Va. Nov. 20, 2019)

Wagman Heavy Civil, Inc. (“Wagman”) and the Virginia Department of Transportation (“VDOT”) contracted for the design and construction of a highway interchange project (the “Project”). Wagman and the Appalachian Power Company (“APCO”) entered into a written contract (the “Written Contract”) for APCO to remove and relocate its utility structures (the “Work”) in order to facilitate construction for the Project.

Radiance Capital Receivables v. Foster, 2019 Va. LEXIS 135 (Va. Oct. 24, 2019)

On February 21, 2006, Robert D. Foster (“Foster”) and Wilson Building, LLC (“Wilson Building”) executed a promissory note in favor of New South Federal Savings Bank (“New South”) based on a construction loan. On March 2, 2006, Foster and James M. Wilson (“Wilson”) executed a Continuing Guaranty agreement (“Guaranty”) with New South in which they personally guaranteed and promised to pay all of Wilson Building’s debt. In the Guaranty, Foster and Wilson agreed to “waive[] the benefit of any statute of limitations or other defenses affecting the … Guarantor’s liability” under the agreement. Wilson Building eventually defaulted on the promissory note and notice of default and demand for payment was sent to Foster and Wilson on August 27, 2010. On November 23, 2015, Radiance Capital Receivables Fourteen, LLC (“Radiance Capital”), the assignee of New South and holder of the promissory note and Guaranty, filed a complaint against

Faneuil, Inc. v. 3M Co., No. 181202, 2019 WL 4891274 (Va. Oct. 3, 2019)

Plaintiff Faneuil, Inc. (“Faneuil”) entered into a subcontract with 3M Company (“3M”) to provide customer services in support of 3M’s contract with Elizabeth River Crossings Opco, LLC (“ERC”) to assess and collect tolls at facilities between Norfolk and Portsmouth, Virginia. Under the contract between Faneuil and 3M, 3M agreed to pay Faneuil $2.52 million in annual base compensation in equal monthly payments; 3M could reduce those base payments for a fiscal quarter if the previous quarter included fewer than expected toll transactions; 3M must reimburse Faneuil for

James River Stucco, Inc. v. Monticello Overlook Owners’ Ass’n, No. CL16-408, 2019 Va. Cir. LEXIS 468 (Cir. Ct. Sep. 30, 2019)

In the case-in-chief, plaintiff, James River Stucco, Inc. (“James River”), alleged that defendant, Monticello Overlook Owners’ Association (“Monticello”), breached their Agreement (“Agreement” or “Contract”) by failing to pay its outstanding balance. Monticello counterclaimed that James River had itself breached first by hiring subcontractors, thereby failing to staff the job with a sufficient number of appropriately skilled “employees” as the Contract provided. Id. The Court held that the Contract did not require James River to use only workers who were on its own payroll.

W. C. English, Inc. v. Rummel, Klepper & Kahl, LLP, 934 F.3d 398 (4th Cir. 2019)

W.C. English, Inc. (“English”) contracted with Virginia Department of Transportation (“VDOT”) to construct a bridge over Interstate 81 near Lexington, Virginia. English subcontracted with Rummel, Klepper, & Kahl, LLP (“RK&K”) to provide project quality assurance services and with CDM Smith, Inc. (“CDM”) to provide project quality control services.

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