The 1st District Publishes Two New Construction Negligence Opinions

Posted on March 10, 2008 by Ashley Brandt

In two interesting cases involving construction negligence on the jobsite, the first district has reversed and upheld directed verdicts for third-party defendants who were subcontractors and the employers of the plaintiffs. 

  • In Oldenstedt v. Marshall Erdman and Assoc. Inc., the first district upheld a directed verdict for the third-party employer and also addressed the issue of prejudice in closing statements (finding that failure to object at the time of closing resulted in waiver.)
  • In Jones v. DHR Cambridge Homes, Inc., the court found that a directed verdict for the third-party defendant would be overturned, but because the consequence of the directed verdict had been to prevent the third party from presenting both liability and damages evidence, the third-party defendant would be allowed to address both at retrial.

An additional similarity and two interesting discussions involving the use of special interrogatories are contained in both opinions.

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Subrogee to the general or to the subs?

Posted on February 8, 2008 by Ashley Brandt

            This is an interesting decision from the Northern District, the plaintiff, a surety company paid out on bonds to subcontractors when the bank that a general had deposited the money into took the funds the general had for payment to the subs to satisfy the general's obligations to the bank.

            The surety had three theories, conversion, a claim for a trust under the mechanic's lien act, and constructive trust.  The court found that because the surety was not suing as subrogee to the general, but rather as subrogee on the funds it paid out to the subs and because it had failed to allege that the bank had knowledge that the funds were for the subcontractors none of the counts could lie.  The Court also held that the bank was not implicated or obligated under the terms of the mechanic's lien act.

            While it initially looks like the failure of the plaintiff to properly plead the facts necessary to maintain the claim resulted in the dismissal, much of the language used implied that in order to maintain the actual claims, the surety should step in as subrogee to the general and not to the sub. 

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