Not So Fast: Arizona Supreme Court Rolls Back Recent Expansion of Common Law Indemnification Claims

Just over a year ago, I authored a post on the Arizona Court of Appeals decision in Hatch Development, LLC, et al. v. Sol’s Construction Co., Inc., 240 Ariz. 171 (App. 2016), which addressed the concept of common law indemnification.  Just recently, however, the decision in Hatch Development was abrogated by the Arizona Supreme Court’s opinion in KnightBrook Ins. Co., v. Payless Car Rental System, Inc., 243 Ariz. 422 (2018).

The Abrogated Hatch Development Decision

In Hatch Development, homeowners sought indemnification from their contractor for damages suffered by a neighbor due to a defectively installed  sewer system.   The court ultimately ruled in the homeowners’ favor, holding that a common law “duty to indemnify may arise in at least two alternative circumstances:  First, when the party seeking indemnity has ‘extinguished an obligation owed by the party from whom it seeks indemnification,’ or second, when the indemnity defendant is ‘at fault.’”  The court noted that the first circumstance was grounded in Restatement (First) of Restitution § 76.  Conversely, the second circumstance, on which the Court’s decision turned, was predicated on Restatement (First) of Restitution § 78(b)(ii), which provides, in pertinent part, that a party is entitled to indemnification where: (1) he or she makes a payment on an obligation; (2) the obligation arises because of the fault of the indemnity defendant; and (3) the payment is made with the justifiable belief that the obligation was owed. read more

They’re Here: AIA Rolls Out 2017 Updates to Contract Documents

The American Institute of Architect’s (“AIA”) Contract Documents are among the most widely used form agreements in construction.  For purposes of keeping up with critical court decisions and industry trends, the AIA reviews and amends its core documents every ten years.  2017 marked a decade since the last updates, and like clockwork the AIA has released revised versions of its documents over the course of this year.    Several months ago, the AIA released new versions of 14 documents, including its flagship agreements for the design-bid-build delivery model.  And just recently, the AIA has released 20 additional new documents relating primarily to the scope of architects’ services. read more

Sirrah, Sirrah: Arizona Supreme Court Holds that Successful Party in Breach of Implied Warranty Lawsuit is Entitled to Attorneys’ Fees

It is well-established Arizona law that a warranty of habitability and workmanship is implied into all residential construction contracts.  In Sirrah Enterprises, LLC v. Wunderlich, 242 Ariz. 542 (2017), the Arizona Supreme Court recently decided “whether the successful party on a claim for breach of the warranty qualifies for an attorney-fee award under either a contractual fee provision or A.R.S. § 12-341.01.”  The Court held that the warranty is an imputed term of the construction contract, such that the prevailing party on a claim for breach of that term qualifies for an attorneys’ fee award under a controlling contractual fee provision or § 12-341.01. read more

Pool Change: Arizona Legislature Tweaks Mandatory Provisions For Swimming Pool Construction Contracts

I have previously addressed the required minimum elements of Arizona construction contracts, which are set forth in A.R.S. § 32-1158(A).  When it comes to contracts for the construction of residential in-ground swimming pools and spas, however, those minimum elements are not enough. Pursuant to A.R.S. § 32-1158.01(A), pool and spa contracts must also include several additional provisions.  These additional provisions were recently tweaked by the Arizona Legislature through Senate Bill 1116, which became effective on August 9, 2017. read more

Amberwood Development, Inc. et al. v. Swann’s Grading, Inc.: Persuasive Authority on the Scope of Indemnification Provisions

Division One of the Arizona Court of Appeals recently issued a decision addressing contractual indemnification provisions in Amberwood Development, Inc., et al. v. Swann’s Grading, Inc., 2017 WL 712269.  Given that Amberwood Development is an unpublished memorandum decision (and not an opinion), it will have no precedential effect on any subsequent Arizona cases.  It is, nevertheless, worth reviewing because it touches on two key aspects of indemnification provisions—(1) what acts or omissions are covered; and (2) whose acts or omissions are covered.  In Amberwood Development, the court ultimately found that the subcontractor, Swann’s Grading, Inc. (“Swann’s”), was obligated to indemnify the general contractor, Amberwood Development, Inc. (“Amberwood”), for: (1) Swann’s non-negligent actions; and (2) all claims “arising out of or connected to Swann’s work,” regardless of who caused them. read more