Litigation

By: Donald C. Turner

Was your dealership terminated by GM/Chrysler?

The United States Congress, as part of a $1.1 trillion spending bill, has voted to give terminated General Motors and Chrysler dealers the right to challenge their terminations through arbitration. This legislation requires the arbitrator to balance the economic interest of the covered dealership against the economic interest of the manufacturer and the public at large and, on the basis of this balancing, to determine whether the dealership should remain open. Among other things, the arbitrator is to consider the dealer’s profitability over the period 2006 through 2009, the manufacturer’s overall business plan, the dealership’s current economic viability, its satisfaction of the manufacturer’s performance objectives, the length of experience of the covered dealership, and the demographic and geographic characteristics of the dealership’s market territory. Dealers electing to arbitrate must make a decision to do so within 40 days of the effective date of the Act. The Act became effective on December 16, 2009 and therefore the election to arbitrate must be made no later than January 22, 2010 (The 40-day period ends on Sunday, January 24, 2010 so to be safe, the arbitration should be requested no later than Friday, January 22, 2010). As a result, the dealer should, at this time, commence compilation of the evidence and documentation to support why it should be allowed to continue operations.

This arbitration is to be conducted by arbitrators with the American Arbitration Association and will be conducted in a quasi-judicial proceeding. As a result, careful planning and competent counsel (with automotive and arbitration experience) will be critical to success in these arbitrations, please contact if you are an affected dealer, Don Turner to discuss your options.

Also, see an earlier post on the car dealer arbitration process.

By: Donald C. Turner

If you are involved in the design, planning, supervision or construction of improvements to real estate in Pennsylvania, you should know that there are state laws that limit the time period to make claims based on defective design or construction and for injuries that arise out of design or construction defects. For more information on this 12-year statute of repose that provides significant protection to Pennsylvania construction and design businesses, read the full article that is posted on our website, or contact our office.

By: Daniel P. Dwyer

Are you bidding (or contemplating bidding) on state agency contracts? Do you know when a bidder on a construction contract can file a bid protest?

Recent court decisions raise questions about when a bidder on a construction contract with a Pennsylvania state agency can file a bid protest.

Prospective bidders who wish to challenge the state’s award of a bid must do so through certain procedures set forth in the law. A protest must be filed: 1) within 7 days of when the bidder knew of the facts giving rise to his protest, and; 2) no later than 7 days after the contract is awarded. It is clear that any protest filed more than seven (7) days after the award of the contract is too late. However, is there ever a time when it is too early? See this article for more specific information about when a bid protest might be too early.

For more information, contact Daniel Dwyer.

Update on coverage for claims involving faulty workmanship under commercial general liability policies

On December 30, 2008, the Pennsylvania Supreme Court denied the Petition for Allowance of Appeal from the Order of the Pennsylvania Superior Court in the case of Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., 941 A.2d 706 (Pa. Super. 2007). In Miller, the Pennsylvania Superior Court found no coverage under the insured builder’s commercial general liability (CGL) policy for claims made against it by homeowners who alleged that their homes were built with defective stucco exteriors, windows and other artificial seals, resulting in water damage to the interior of the homes.

The Pennsylvania Superior Court applied the Pennsylvania Supreme Court’s holding in Kvaerner Metals v. Commercial Union Ins. Co., 908 A.2d 888 (Pa. 2006), in which the Court held that a contractor’s alleged faulty workmanship in building a coke oven battery for a steel company was not an “accident” and, therefore, was not an “occurrence” within the meaning of the contractor’s CGL insurance policy. In doing so, the Court explained that faulty workmanship claims lacked the degree of fortuity contemplated by the ordinary definition of accident.

In light of the Court’s decision in Miller, there is no longer any uncertainty with respect to the exclusion of coverage for faulty workmanship claims under CGL policies. Builders and others who previously thought their CGL policies protected them against such claims should be careful in hiring and supervising the work of subcontractors as they may no longer look to their insurance carriers for protection. There is a “subcontractor exception” which may preserve coverage that would otherwise not exist.

More on the subcontractor exception next month…

Welcome to the Litigation Section’s blog. Our firm is located in West Chester, Chester County, Pennsylvania, and Phoenixville, Chester County, Pennsylvania. This blog is intended to provide a litigator’s perspective on a wide range of specific legal issues, along with commentary on emerging legal trends. The content is intended to be useful to individuals and small businesses wanting to learn more about exposure to liability, avoiding liability, the process of civil litigation, and alternative dispute resolution options.

Disputes arise in a variety of settings. Our team of litigators is experienced in contract and business disputes, employment, real estate, banking and creditor’s rights, construction, mortgage foreclosures, commercial leasing, and estate and orphan’s court matters.

We invite you to bookmark and visit this site regularly, or you may use the box on the right to subscribe and receive regular email updates as site content changes. You can choose to receive updates through RSS feed or regular email. Should you have a specific legal concern that you need legal assistance in resolving, you are encouraged to contact us for an appointment and consultation.

For more information on our practice, please click here.

Brian D. Boreman

James C. Dalton

Daniel P. Dwyer

Nancy J. Glidden

John K. Fiorillo

Daniel M. Hanifin

Stephen P. Lagoy

Shannon M. Reilly

Christopher L. Turner

Donald C. Turner