(See Architect Engineer Law for discussion of 10 year statute of repose enacted by the Ohio General Assembly in 2005)
About requirements for contractors on federal projects to verify citizenship and
immigration status of workers, see Business Law Developments.
Recent Construction Law Developments
See: Liquidated Damages in Public Contracts.
2. Will the Jones rule apply to home remodelers
or other home improvement trades?
3. May warranty obligations, although not waived, be defined and limited by contract
as long as the failure to construct in a workmanlike manner is reasonably
4. Can rights to recover consequential damages beyond the cost of repairs be waived by
5. Can the statute of limitations for claims between the homeowner and home builder be
limited by contract to one or two years, as is typical in construction
6. If the rights can be reasonably limited by contract between the home builder and
its customer, what happens if the original home buyer sells to a new
buyer? Will the limitation apply to the new buyer?
Ambiguity in Plans and Specifications
Suburban Maintenance & Constr., Inc. v. Ohio Dept. of Transp, 2016-Ohio-1253, a referee of
the ohio Court of Claims decided in favor of a contractor who made a claim for extras based upon an ambigutiy
in the plans and specifications. The contract involved the repair of 12 bridges. Item 202 of the specifications required
the removal of "8 CU. YD. PORTIONS OF STRUCTURE .. AS PER PLAN," and stated "the work consists of the removal
of top 2 to 3 feet of pier columns for repair." However the specdificaion also said, "the provisions of Item 202
apply except as specified in the following notes." The notes contained the statement that the dimensions are tentative and approximate
and that ODOT wil pay for all project work based upon actual dimensions whichh have been verified in the field." The
contractor based its bid on a field inspection by its own engineer who found that on the
pier columns in question, only patching would be required. ODOT insisted on removal and replacement
of the 8 cubic feet. The referee found the specification to be ambiguous and interpreted it against DOT.
Non-Waivable Duty to Build in Workmanlike Manner
In Jones v.
Centex Homes (March 14, 2012), Slip Opinion No. 2012-Ohio-1001, the Ohio Supreme Court plowed
new ground and created significant new legal issues in construction law that
will take years to sort out. In Jones,
the plaintiffs alleged that the residential homebuilder from whom they
purchased their homes had been negligently constructed using magnetized
structural steel that interfered with television reception, erased hard disks,
and otherwise engaged in various forms of magnetic mischief. The homebuilder defended
based upon a written limited warranty that disclaimed all implied warranties
and limited the homeowners remedies.
After analyzing previous case law, the Court
concluded that the duty to construct a house in a workmanlike manner using
ordinary care is a duty imposed by law and not an implied warranty which can be
waived. The previous cases that the court analyzed to reach its conclusion had recognized
an implied duty in tort. In Mitchem v. Johnson,
7 Ohio St.2d 66, 218 N.E.2d 594 (1966), home buyers sought compensation for water damage resulting from
their house having been built in a low portion of a lot with surface-water
problems and without a foundation drainage system. No warranty either covered or
disclaimed coverage for the alleged defect. The Court concluded that the home buyers were entitled to recover
damages if they could establish that the home builder had not constructed the
house in a workmanlike manner.
In Velotta v. Leo Petronzio Landscaping, Inc.
(1982), 69 Ohio St.2d 376, 433 N.E.2d 147, the Court
found that breach of the implied duty to construct in a workmanlike manner is a
tort claim rather than a contract claim, saying,
"The duty implied in the sale between the builder-vendor and
the immediate vendee is the
duty imposed by law on all persons to exercise ordinary care. In an action by a
vendee against the builder-vendor of a completed residence for failure to
construct in a workmanlike manner using ordinary care, the essential allegation
is, viz., the builder-vendor's negligence proximately caused the vendee's
damages. The action, therefore, arises ex delicto, and
the four-year statute of limitations set forth in R.C. 2305.09(D)
applies. The obligation to perform in a workmanlike manner using ordinary care
may arise from or out of a contract, i.e., from the purchase agreement, but the
cause of action is not based on contract; rather it is based on a duty imposed
by law." [Footnotes omitted, emphasis added.]
In Jones, the Ohio
Supreme Court went farther. Normally
parties may by contract waive duties between themselves, unless the legislature
has made a public policy declaration that the duty may not be waived. In Jones,
the Ohio Supreme Court is declared that the duty to build in a workmanlike manner
is non-waivable, saying in its syllabus,
"A home builder's duty to construct a house in a workmanlike
manner using ordinary care is a duty imposed by law, and a home buyer's right
to enforce that duty cannot be waived. Velotta
v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 433 N.E.2d 147 (1982),
paragraph one of the syllabus, and Mitchem
v. Johnson, 7 Ohio St.2d 66, 218 N.E.2d 594 (1966), (paragraph three of the syllabus, clarified
Nowhere in the opinion does the Supreme Court
explain how it concluded that the duty implied by law cannot be waived. It cites no precedent for that
Editorial Commentary. Strictly speaking, this surprising new rule of law as
stated so far applies only to homebuilders. However, the opinion may have a
much greater reach. The traditional duty
of any construction trade, residential or commercial, is the duty to perform
the construction trade in a workmanlike manner.
1.Will the Jones rule be eventually applied
to commercial construction? Typical
commercial written warranties are two years. Will this decisions effecitively allow
"workmanlike manner" claims outside the written warranty subject to Ohio's four years
statute of limitations in R.C. 2305.09?
All these (and no doubt more) seem to the author to be open
questions, and fodder for years of litigation.
Contract Claims Procedure
Ohio Farmers Ins. Co. v. Ohio School Facilities Comm.,
2012-Ohio-951, the 10th District Court of Appeals affirmed the grant of summary
judgment where a contractor sought additional compensation under its
contract, alleging a breach of contract, but had failed to follow the contract
procedure for presenting claims. The contract required claims to be
in writing and presented to the architect no more than 10 days after the
initial occurrence of the facts which are the basis of the claim. Failure
to timely submit a claim would constitute a waiver by the contract of any
claim for additional compensation.
Editorial Comment: it is sometimes difficult in the course of a construction project
to determine "the initial occurrence of the facts" which may later
become the basis of a claim. In this case, however, the contractor made no
claim under the procedure required by the contract, timely or otherwise.
Incorporation of Arbitration Clause
Acme Arsena Company, Inc., v. J. Holden Construction Co., Ltd.,
2008-Ohio-6501, the Cuyahoga County Court of Appeals held that the
incorporation by reference of the A201 general conditions in a contractor's subcontract
compelled the subcontractor to engage in arbitration for dispute resolution
in a dispute with the contractor for extra costs.
For a recent case on piercing the corporate veil for constructon
defects, see Business Law discussion of
Winegar v. Creekside Crossing Home Sales.
In Dugan &
Meyers Constr. Co., Inc. v. Ohio Dept. of Adm. Servs., 113
Ohio St.3d 226, 2007-Ohio-1687, the Ohio Supreme Court held
that a contractor's delay claims were barred by a "no damages for delay"
clause in the contract. The court also said that the
contractor was not excused from complying with the change order procedure
to get extensions of time. Ohio's Fairness in Contracting
Act, which voicds "no damages for delay" clauses, did not apply when this
contract was signed.
Wagner-Smith Co.v. Ruscilli Construction Co, 139 Ohio Misc.2d
101, 2006-Ohio-5463, a contractor in a multimillion dollar construction
project at the Ohio State University brought this action against the Ohio
State University's construction manager for intentional interference with
the contract between the contractor and the Ohio State University.
The Franklin County Court of Common Pleas held that the claim is barred
by the economic loss doctrine as set forth in Floor Craft Floor Covering
Inc. v. Park Community Gen'l. Hosp. Assn. (1990) 54
Ohio St.3d 1, 560 N.E. 2d 206. Furthermore, the construction manager
could not be liable for a tortious interference with contract claim
because of privilege: an agent cannot be liable for tortious interference
unless that agents actions benefited itself solely in a personal capacity.
Differing Site Conditions
Allied Environmental Servs., Inc. v. Miami Univ. (Ct. of Claims), 2006-Ohio-5668, an asbestos
removal contractor alleged differing site conditions from those set forth in the contract.
To prove that type of claim, the contractor must show: (1) that its contract contains an
affirmative indication regarding the subsurface or latent physical condition that forms
the basis of the claim; (2) that the contractor interpreted the contract as would a reasonably
prudent contractor; (3) that the contractor reasonably relied upon the contract indications r
egarding the subsurface or latent physical condition; (4) that the contractor encountered
conditions at the job site which differed materially from the contract indications regarding
the subsurface or latent physical condition; (5) that the actual conditions encountered by the
contractor were reasonably unforeseeable; and (6) that the contractor incurred increased costs
which are solely attributable to the materially different subsurface or latent physical condition.
In this case, the contractor failed to exercise due care in evaluating the work which it underbid.
Also, the contractor failed to give timely notice of the allegedly differing condition as required
by the contract.
In Trucco Constr. Co., Inc. v. Columbus, 2006-Ohio-6984,
the Franklin County Court of appeals held that the contract did not contain a representation of the site conditions,
to the excess groundwater claim of the contractor was properly decided against it on summary judgment. Another interesting portion of the case involved
Ohio municipal home rule powers. The court said that the Columbus City Charter authorized the adoption
of procedures that differed from those contained in RC 153.12 that requires a public owner to pay a "reasonable sum for
overhead" if the public entity fails to execute publicy with contracts within 60 days of the bid opening.
O'Donnell Constr. Co. v. Stewart, 2006-Ohio-1838, an owner and a contractor settled a
dispute in mediation, by which the owner agreed to pay the contractor $100,000 in exchange
for the delivery of certain materials within 30 days. The owner refused to make payment
alleging that during the course of the mediation, the contractor had made fraudulent
statements inducing the settlement. At trial, the owner sought to compel the deposition
testimony of the mediator. The trial court issued a protective order to protect the
confidentiality of mediation communications. On appeal, the Court of Appeals affirmed
saying that the trial court did not abuse its discretion in applying the statutory
confidentiality for mediation communications.
Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, the Ohio Supreme
Court said that when performing a governmental function, people have no right to rely on
what the government tells them or promises them, without a contract in writing. The
Hortmans alleged that they had suffered damage to trees during a road improvement
project by the City of Miamisburg, Ohio. Before the work started, the Miamisburg City
Engineer promised them that certain trees would not be touched or destroyed. When those
trees were destroyed, the Hortmans brought suit. Reversing the court of appeals, the
Ohio Supreme Court found that the City of Miamisburg was immune from liability for the
property damage, holding that the doctrines of equitable estoppel and promissory estoppel
are inapplicable against a political subdivision when the political subdivision is
engaged in a governmental function.
Remedy for Low Bidder
Cementech, Inc. v. Fairlawn, 109 Ohio St.3d 475, 2006-Ohio-2991, the Ohio
Supreme Court, reversing the court of appeals, refused to permit a disappointed low
bidder on a public project, who was not awarded the contract despite the low bid,
from recovering lost profits as damages. Ohio R.C. section 735.05 requires municipalities
to select the "lowest and best" bidder. In dictum, the court stated that a wrongly
rejected bidder is limited to injunctive relief.
Pay-If-Paid Clause Upheld
According to Ohio's 10th District Court of Appeals in B.I.
Chipping Co. v. R.F. Scurlock Co., (12/20/05) 2005-Ohio-6748,
Ohio's Fairness in Contracting Act, RC 4113.65 does not invalidate a contract
provision in a subcontractor's contract that limits the subcontractor's delay damages recovery to whatever
recovery the contractor is able to secure from the owner. BI Chipping ("Chipping") was a subcontractor
to RF Spurlock ("Spurlock") on a highway job. When Chipping arrived on the job, the DOT
had failed to secure the relocation of telephone lines. Chipping requested $25,000
additional compensation. Spurlock took the claim to DOT who settled Chipping's portion
of the claim for $10,000. Dissatisfied with only $10,000, Chipping sued Spurlock. The
trial court dismissed on summary judgment and the 10th District Court
of Appeals affirmed, saying the parties had a right to and did enter into a contract that limited
Chipping from recovering anything from Spurlock that Spurlock could not recover from DOT.
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Ohio's Trap: Make Enforceable Contracts with Public Entities. Are Your Local Government Contracts Valid? Are they enforceable?
Ohio law is very strict.
To Arbitrate or Not to Arbitrate?
When deciding whether to include an arbitration clause
in your contracts or to engage in arbitration voluntarily,
there are several factors to consider.
Ohio's Fairness in Contracting Act.
Some common "form contract" provisions are now against public policy.
What are your rights?
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