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A general contractor’s application for attorneys’ fees granted pursuant to a subcontract agreement on a bridge rehabilitation project.

January 3, 2017
In re: Bridge Construction Services of Florida, Inc., Hughes Bros., Inc., and Tutor Perini Corp., Civil Nos. 12-3536, 12-6285, and 13-3123 (S.D.N.Y. Sep. 5, 2016)

The United States District Court for the Southern District of New York granted the application of Tutor Perini Corp., general contractor on a bridge rehabilitation project, for attorneys’ fees pursuant to its Subcontract Agreement with a tug operator, Bridge Construction Services of Florida, Inc. (BCSF). The Subcontract Agreement, which was governed by New York law, established BCSF’s liability to Tutor Perini for indemnification and defense. Specifically, Section 11.1 of the agreement, which established what claims, damages and expenses were recoverable, expressly included attorneys’ fees and disbursements. Section 11.3 of the Agreement established that BCSF’s obligation to defend, indemnify and hold Tutor Perini harmless was triggered upon making a claim against Tutor Perini arising out of the acts or omissions of BCSF, even where the subcontractor, BCSF, disputes such an obligation. The court determined that the triggering event was the filing of the underlying plaintiff’s, Jose Ayala, lawsuit against Tutor Perini. The court then distinguished the New York Court of Appeals’ decision in Hooper Associates, Ltd. v. AGS Computers, Inc., 548 N.E.2d. 903 (N.Y. 1989), and held that BCSF was also required to pay for attorneys’ fees incurred by Tutor Perini after its settlement of the underlying third-party claim made by Jose Ayala. Next, the court rejected BCSF’s argument that Tutor Perini’s fees should be reduced by its percentage of fault based upon the Subcontract Agreement’s broad and unequivocal language obligating BCSF to defend Tutor Perini irrespective of Tutor Perini’s fault. Lastly, the court held that, in view of the fact that the Subcontract Agreement called for the application of New York law, interest should accrue at the rate of 9%. Our New York office represented Tutor Perini in this matter.

 

Case Law Alerts, 1st Quarter, January 2017. Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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