Fear Not Law Articles: Opinski Construction v. All West Construction

Opinski Construction v

Opinski Construction v. All West Construction

Filed 1/16/07 Opinski Construction v. All West Construction CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

GREG OPINSKI CONSTRUCTION, Inc. et al.,

Plaintiffs and Appellants,

ALL WEST CONSTRUCTION,

Defendant and Respondent.

F047689 & F047708

(Super. Ct. No. 329865)

O P I N I O N

APPEAL from a judgment of the Superior Court of Stanislaus County. Hurl Johnson, Judge.

Willoughby, Stuart & Bening, Randall E. Willoughby and Ellyn E. Nesbit for Plaintiffs and Appellants.

Wright, Robinson, Osthimer & Tatum, Stuart E. Jones and Jennifer A. Emmaneel for Defendant and Respondent.

-ooOoo-

Appellant, Greg Opinski Construction, Inc. (Opinski), was hired by the City of Modesto (City) as the general contractor for construction of a new police headquarters building. Opinski was insured by appellant, Pennsylvania General Insurance Company (Penn. General). When defects were found in the construction, the City made claims against Opinski which were referred to binding arbitration. Opinski and Penn. General settled the City's negligence claims in the arbitration for $500,000, and then filed the present action against the subcontractors on the project, including respondent, All West Construction (All West), seeking indemnity and subrogation. All West moved for summary judgment against both Opinski and Penn. General, and on the same day moved for terminating sanctions against Opinski. The trial court granted each of the motions. On appeal, Opinski and Penn. General contend it was error to grant the summary judgment motions because All West failed to meet its initial burden as the moving party. Additionally, Opinski contends the court erred in granting terminating sanctions against it. As more fully discussed below, we agree that the trial court should not have granted summary judgment against the appellants because All West failed to meet its burden of showing entitlement to judgment as a matter of law. At the same time, we conclude the trial court did not abuse its discretion in imposing terminating sanctions against Opinski. Accordingly, the judgment entered in favor of All West against Opinski will be affirmed, but reversed as to Penn. General.

FACTS AND PROCEDURAL HISTORY

Appellants Opinski and Penn. General filed their original complaint on January 17, 2003. The most recent version of appellants' pleading is the fourth amended complaint (complaint), filed on July 23, 2004. As indicated therein, the City of Modesto discovered a number of defects in the construction of its new police headquarters and claimed that Opinski, as general contractor, was negligent. Opinski and its insurance company, Penn. General, settled the City's claims for $500,000 during arbitration. As the complaint expressed it, â€

Description	Appellant, (Opinski), was hired by the City of Modesto (City) as the general contractor for construction of a new police headquarters building. Opinski was insured by appellant, Pennsylvania General Insurance Company (Penn. General). When defects were found in the construction, the City made claims against Opinski which were referred to binding arbitration. Opinski and Penn. General settled the City's negligence claims in the arbitration for $500,000, and then filed the present action against the subcontractors on the project, including respondent, All West Construction (All West), seeking indemnity and subrogation. All West moved for summary judgment against both Opinski and Penn. General, and on the same day moved for terminating sanctions against Opinski. The trial court granted each of the motions. On appeal, Opinski and Penn. General contend it was error to grant the summary judgment motions because All West failed to meet its initial burden as the moving party. Additionally, Opinski contends the court erred in granting terminating sanctions against it. As more fully discussed below, we agree that the trial court should not have granted summary judgment against the appellants because All West failed to meet its burden of showing entitlement to judgment as a matter of law. At the same time, court conclude the trial court did not abuse its discretion in imposing terminating sanctions against Opinski. Accordingly, the judgment entered in favor of All West against Opinski will be affirmed, but reversed as to Penn. General.
Rating	0/5 1 2 3 4 5 0/5 based on 0 votes.