SSCM is pleased to announce another client win by partner Kevin Cauley. Client McCullough Plumbing was recently on a federal project, and sued the prime contractor and payment bond surety, alleging it had not been paid in full.
In United States ex rel. McCullough Plumbing, Inc. v. Halbert Construction Company, Inc., 2018 U.S. Dist. LEXIS 212121 (S.D. Cal. December 17, 2018), a subcontractor on a federal project sued the prime contractor and payment bond surety, alleging that it had not been paid in full. The defendants moved for partial summary judgment with respect to the damages the subcontractor was seeking. In particular, the defendants argued that the “no damages for delay” clause in the subcontract precluded recovery of delay damages. The court analyzed whether the “no damages for delay” clause complied with the Miller Act. The court rejected the defendants’ argument that such a clause concerned only the measure of recovery and was not a waiver of the subcontractor’s right of recovery. The defendants asserted that the measure of recovery was limited to an extension of time. The court stated, “The No Damage for Delay clause plainly affects McCullough’s right of recovery of increased out-of-pocket costs caused by construction delays under the Miller Act.” The court held that the clause was an unenforceable waiver of the subcontractor’s rights under the Miller Act. The court denied the motion for partial summary judgment.
Schwartz Semerdjian partner John Moot recently won a long-standing property right dispute, overturning a City of Chula Vista Planning Commission decision to put in a car wash that would have negatively impacted the neighbors and nearby business owners with the traffic and noise of the proposed project. The Chula Vista City Council voted 4-1 to accept the appeal and deny the Conditional Use Permit much to the relief of the 82-year-old neighbor who first opposed the project. Congratulations, John! To view KUSI News recent coverage of the story click here.
Schwartz Semerdjian partner Sarah Evans begins her two-year term as vice chair of the Friends of Balboa Park’s board of directors. The nonprofit whose mission is to preserve and enhance the park for future generations, is celebrating its 20th anniversary this year, during which Sarah will also serve as chair of its governance committee. For more information about the Friends and their latest projects, visit www.FriendsofBalboaPark.org.
Schwartz Semerdjian partner John Moot, after a three week land use trial, won a convincing verdict against the Metropolitan Transit Authority after a long battle over public access to an intercity bus terminal at the world’s busiest land port of entry in San Ysidro. The story has been followed by several news outlets including the San Diego Union Tribune which reported on the verdict. Congratulations, John! To view the San Diego Union Tribune article click here.