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The Ninth Circuit Holds That The ADA Does Not Preempt A City’s State-Law Contribution Claims Against Designers And Builders Of Deficient Public Facilities.

City of Los Angeles v. AECOM Services, Inc. (April 24, 2017, Ninth Circuit No. 15-56606)  __ F.3d __,  2017 WL 1431084.  This landmark preemption decision will benefit municipalities across the country.  Two disabled persons sued GMSR’s client, the City of Los Angeles, under Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act (RHA), alleging that a bus facility was inaccessible to disabled persons.  The City filed a third-party complaint for breach of contract and express indemnity against the designer and the builder of the facility.  The district court found these state-law claims preempted by the ADA, relying on precedent indicating that the presumption against preemption does not apply to the ADA and that the ADA preempts indemnification claims.  The Ninth Circuit reversed.  GMSR argued, and the Ninth Circuit agreed, that the City’s “express indemnity” claim was actually a claim for de facto contribution because the City sought indemnity only for losses caused by the designer’s and the builder’s own misconduct.   GMSR also argued, and the Ninth Circuit agreed, that the presumption against preemption does apply to the ADA and RHA, and that nothing indicates that Congress intended to preempt municipalities from pursuing state-law contribution claims against contractors who design and build deficient facilities.

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