Michael Baker Intl. Settles Federal Pay Bias Allegations
February 26, 2024 —
James Leggate - Engineering News-RecordMichael Baker International Inc. agreed to pay $122,299 in back wages as part of an agreement with the U.S. Dept. of Labor to resolve allegations that the engineer-consultant paid women in four job titles less than their male counterparts.
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James Leggate, Engineering News-Record
Mr. Leggate may be contacted at leggatej@enr.com
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Sweet News for Yum Yum Donuts: Lost Goodwill is Not an All or Nothing Proposition
October 07, 2019 —
Josh Cohen - California Construction Law BlogLast month a California Court of Appeals clarified that a property owner facing eminent domain is only required to prove partial loss of goodwill, not total loss of goodwill, to be entitled to a trial on the amount of goodwill lost.
Yum Yum Donuts operated a shop in Los Angeles that was subject to eminent domain by the Los Angeles Metropolitan Transportation Authority (MTA) to make way for light railway track. At trial, Yum Yum sought loss of goodwill as part of its condemnation damages under Code of Civil Procedure section 1263.510.
At trial the MTA’s expert testified that Yum Yum could have reduced its goodwill loss if it relocated to one of three alternative locations rather than simply closing the shop. But the expert conceded that even if Yum Yum had relocated, it would have lost some goodwill. Yum Yum refused to relocate, arguing that its relocation costs would render the move unprofitable. The trial court found that Yum Yum’s failure to mitigate its damages barred Yum Yum from having a jury trial to recover any goodwill damages.
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Josh Cohen, Wendel, Rosen, Black & Dean LLPMr. Cohen may be contacted at
jcohen@wendel.com
COVID-19 Is Not Direct Physical Loss Or Damage
April 13, 2020 —
Joseph Blyskal, Dennis Brown & Michelle Bernard - Gordon & Rees Insurance Coverage Law BlogIs a cash register that is not being used damaged property? When you need to wash a table, a chair, or a section of flooring with readily available cleaning products to make them safe and useable, are you repairing damaged property? Is a spilled cup of coffee waiting to be wiped up actual damage to the premises? If your customers stay home to help stop the spread of a virus, has there been a physical loss inside your shuttered store or restaurant?
The insuring agreements typically found in commercial property insurance policies require “direct physical loss of or damage to” covered property as the triggering event. Without establishing direct physical loss or damage a policyholder cannot meet its burden to trigger coverage for a purely economic loss of business income resulting from shuttering its business due to concerns over exposure to—or even the actual presence of—COVID-19. Despite this well-understood policy language, it is already beyond question that insurers will confront creative—albeit strained—arguments from policyholder firms attempting to trigger coverage for pure economic loss. The scope of the human and economic tragedy we all face will be matched by the scope of the effort to force the financial harm onto insurance companies.
The plaintiffs in what appears to be the first-filed case seeking a declaratory judgment in the context of first-party insurance coverage rely on the assertion that “contamination of the insured premises by the Coronavirus would be a direct physical loss needing remediation to clean the surfaces” of its establishment, a New Orleans restaurant, to trigger coverage for business interruption.[1] See Cajun Conti, LLC, et. al. v. Certain Underwriters at Lloyd’s, London, et. al. Civil District Court for the Parish of Orleans, State of Louisiana. The complaint alleges that the property is insured under an “all risk policy” defining “covered causes of loss” as “direct physical loss.” The plaintiffs rely on the alleged presence of the virus on “the surface of objects” in certain conditions and the need to clean those surfaces. They go so far as to claim that “[a]ny effort by [the insurer] to deny the reality that the virus causes physical damage and loss would constitute a false and potentially fraudulent misrepresentation. . . .”
Reprinted courtesy of Gordon & Rees attorneys
Joseph Blyskal,
Dennis Brown and
Michelle Bernard
Mr. Blyskal may be contacted at tblatchley@grsm.com
Mr. Brown may be contacted at dbrown@grsm.com
Ms. Bernard may be contacted at mbernard@grsm.com
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Massachusetts Pulls Phased Trigger On Its Statute of Repose
December 21, 2020 —
Kyle Rice - The Subrogation SpecialistIn D’Allesandro v. Lennar Hingham Holdings, LLC, 486 Mass 150, 2020 Mass. LEXIS 721, the Supreme Judicial Court of Massachusetts answered a certified question regarding how to apply the Massachusetts statute of repose, Mass. Gen. Laws ch. 260, § 2B, in regards to phased construction projects. The court held that, in this context, the completion of each individual “improvement” to its intended use, or the substantial completion of the individual building and the taking of possession for occupancy by the owner or owners, triggers the statute of repose with respect to the common areas and limited common areas of that building. Additionally, the court held that where a particular improvement is integral to, and intended to serve, multiple buildings (or the development as a whole), the statute of repose is triggered when the discrete improvement is substantially complete and open to its intended use.
In D’Allesandro, the action arose out of the construction, marketing, sale and management of the Hewitts Landing Condominium (the Condominium) project. Ultimately, 150 units were constructed over 24 phases of construction, enclosed in 28 different buildings. Throughout construction, the project’s architect submitted declarations to the Town of Hingham swearing that the individual units were “substantially complete” and could be occupied for their intended use. The Town of Hingham then issued certificates of occupancy for the unit or building.
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Kyle Rice, White and WilliamsMr. Rice may be contacted at
ricek@whiteandwilliams.com
Do Not Lose Your Mechanics Lien Right Through a Subordination Agreement
December 21, 2020 —
William L. Porter - Porter Law GroupIf you are a member of the California construction industry you might know that the right of a contractor, subcontractor or supplier to record a mechanics lien to protect the right to payment is well protected by state law. In fact, our California Constitution, article XIV, Sec. 3 specifically elevates the right to a mechanics lien to “Constitutional right”. The right to a mechanics lien is further protected by a statutory framework, including Civil Code sec. 8122 which states:
“An owner, direct contractor, or subcontractor may not, by contract or otherwise, waive, affect, or impair any other claimant’s rights under this part, whether with or without notice, and any term of a contract that purports to do so is void and unenforceable unless and until the claimant executes and delivers a waiver and release under this article.”
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Rebuilding the West: Construction Considerations After the Smoke Clears
December 21, 2020 —
Richard Glucksman & Ravi Mehta – Chapman Glucksman Dean & RoebWildfires have always been a part of life in the western United States, but, in recent years, the frequency and size of wildfires have become staggering. Oregon, Washington, and—in particular—California face drier conditions, making wildfire season longer and more intense.
In these states, among others, prescribed burns (designed to reduce wildfire ignition sources and spreading potential) have been limited or cancelled altogether as the air pollution emitted by these burns may worsen the impact of COVID-19, a respiratory illness in its essence, as noted recently by
Science magazine. These circumstances, further compounded by the severe shortage of housing, have created a “perfect storm” in California, which has seen new and denser construction deeper within wildfire-prone areas, prompting a number of key legislative proposals that will impact the rebuilding process after the smoke clears.
The infamous 2018 Camp Fire in northern California made international headlines for decimating the town of Paradise. While the cause of the Camp Fire was determined to be faulty electrical transmission equipment, unusually dry conditions allowed the fire to spread to just over 150,000 acres, and the fire took 17 days to contain.
Then, five of the 20 largest wildfires in California history occurred during the 2020 wildfire season, according to the California Department of Forestry and Fire Protection (Cal Fire). The Camp Fire was eclipsed by the August 2020 Complex Fire, which is the largest wildfire ever recorded in the state, growing to just over one million acres in size until it was finally contained on Nov. 15.
Legislative Response
The Camp Fire and other 2018 wildfires displaced hundreds of thousands of people from their homes throughout California. The unprecedented scale of both the 2018 and the 2020 wildfire seasons in California has spurred legislators in Sacramento to draft a number of important bills that will undoubtedly impact rebuilding efforts.
California AB 38 was prompted by the 2018 California wildfire season and was signed into law by Gov. Gavin Newsom in October 2019. It requires the state fire marshal, the Office of Emergency Services, and Cal Fire to work together to develop and administer a comprehensive wildfire mitigation program, including "cost-effective structure hardening and retrofitting to create fire-resistant homes, businesses, and public buildings."
Unfortunately, the well-intentioned program has yet to be funded, and may be relying on federal hazard funds from the Federal Emergency Management Agency at a future date. In light of the crippling economic impact of the COVID-19 pandemic, federal funding is likely the only viable source for this important item of legislation.
California SB 182 would enact new building regulations in high fire-risk areas (as determined by the state fire marshal), including new standards for fire-resistive construction, evacuation routes, defensible space, and available water and firefighting resources. It would also prohibit municipalities from approving new construction in high fire-risk areas unless wildfire reduction standards are satisfied. In effect, the bill would discourage new construction in high fire-risk areas.
After passing through both legislative houses, Newsom vetoed the bill, citing its negative impact on the state's strained supply of affordable housing. However, the bill is likely to be revisited in the 2020-2021 legislative session.
California AB 1516 is a comprehensive bill that would:
- Create new defensible-space requirements for both new and existing construction in high fire-risk areas.
- Create a grant-assistance program for fire-prevention education, inspections, and technical assistance.
- Direct Cal Fire to develop vegetation management recommendations to minimize flammability.
Additionally, the bill would allow insurers providing course of construction coverage for a project to request, from the owner, municipal certification that the structure to be built complies with existing and new building standards. Newsom vetoed this bill, cautioning that a "one size fits all" approach to wildfire management may not be appropriate, given that each individual community's needs differ.
California AB 2380 focuses on the development of standards and regulations for a relatively new and growing phenomenon: the rising use of private firefighting personnel, particularly by wealthy homeowners. Several prominent and well-known carriers offer homeowners-insurance policies that provide for private firefighting personnel, as well as preventative services (wildfire hazard inspections and clearing defensible space), and expected post-incident services (clean up and removal of fire retardant and similar substances).
AB 2380 was signed into law by Newsom at the tail end of the 2018 wildfire season, and it now requires Cal Fire, the governor's Office of Emergency Services, and the board of directors of the FIRESCOPE Program (designed to coordinate firefighting resources among different agencies) to develop standards and regulations for privately contracted fire fighters.
Housing Shortage and New Construction
These legislative efforts are underscored by the worsening housing crisis, which has both strained existing supply and increasingly pushed new construction into areas known as the Wildland Urban Interface (WUI).
WUI areas are designated as either "interface" or "intermix:” Interface WUI areas have little to no wildland vegetation, but are near large wildlands. By contrast, in intermix WUI areas, structures are mixed with wildland vegetation.
A recent study by the U.S. Forest Service found that, as expected, WUI areas are the hardest hit by wildfires. However, the study also found that, contrary to popular belief, wildfires cause greater damage in interface WUI areas than intermix WUI areas- in other words, wildfire damage is greatest where there is little to no wildland vegetation. The study concludes that wildfires in WUI areas are fueled more by human-made fuels as opposed to natural vegetation. These human-made fuels include building materials and landscaping.
It may not come as a surprise that a growing body of scientific literature has ascribed more severe and frequent wildfires to climate change. However, what may be less appreciated is the profound impact of building in the WUI. By 2050, an estimated one million new homes are projected to be built in California WUI areas.
In light of this, as well as the recognition that wildfire risk is determined, in large part, by construction standards and the fire resistivity of materials as opposed to natural vegetation, California has developed a special building code for WUI areas: Chapter 7A of the California Building Code- Materials and Construction Methods for Exterior Wildfire Exposure. California is one of the few states to have a unique building code for WUI areas, and, in light of the recent wildfires, California officials are developing stricter WUI building standards.
The constituents of State Sen. Bill Dodd in Napa County and surrounding areas have faced some of the state's most devastating wildfires. Dodd is at the forefront of significant fire-related legislation, and was responsible for the passage of the Insurance Adjuster Act of 2019, which sets regulations for insurance-claim adjusting in emergencies.
Dodd also spearheaded the passage of SB 190, which was enacted in late 2019. The law requires, among other things, the state fire marshal to develop suitable materials and products for building in WUI areas with respect to exterior wall siding and sheathing, exterior windows, doors and skylights, vents, decking, treated lumber and ignition-resistant materials, and roofing materials. The state fire marshal's office found that roofing material is among the most important factors in a structure's fire resistivity, and slate, metal, and tile roofs have the highest fire resistance rating of "A:”
As of July 1, 2021, wood-shake roofs will no longer be allowed by the California Fire Code. The state fire marshal also cites non-combustible siding as an important building element.
Wildfire-Resistant Construction
A recent study prepared by Headwaters Economics and commissioned by the U.S. Forest Service, WR Foundation, and Insurance Institute for Business & Home Safety analyzed cost differentials between traditional construction and wildfire-resistive construction as they relate to the four most fire-critical assemblies of a structure: roofs, exterior walls (including windows and doors), decks, and landscaping. Wildfire-resistant roofing, vents, fascia, and gutters were estimated to cost about 27 percent more than traditional components. However, the wildfire-resistant roofing materials feature lower maintenance requirements and longer lifespans.
Wildfire-resistant exterior walls were estimated to cost 25 percent less than traditional components, due in large part to the substitution of true wood siding with fiber cement siding.
Wildfire-resistant decking involves the use of composite boards, foil-faced bitumen tape on support joists, and the creation of non-combustible space beneath decking. This type of construction was estimated to cost approximately 19 percent more than traditional decking construction. Wildfire-resistant landscaping has the most significant cost difference as compared to traditional landscaping construction, with the former costing about double the latter. Landscaping fabric can minimize the growth of weeds and thus reduce fire hazard, as does the use of rocks instead of mulch.
While certain components of fire-resistant construction may have increased costs, the benefits far outweigh these increases: longer life cycles and less maintenance of the components, and, most importantly, greatly increased fire resistivity of the structure itself and thus its life cycle.
As construction in WUI areas is expected to grow substantially in the coming years, so too are fire-resistive construction standards and material requirements. These standards and requirements are part and parcel of a more comprehensive and deliberate set of land use planning, vegetation management, and emergency-response regulations and policies that California will develop by necessity to meet the growing demand for housing in WUI areas, and also to rein in the staggering costs of wildfire suppression. Thus, construction in WUI areas, and, to a lesser degree, in non WUI areas, will be subject to more exacting standards in the years to come.
As the science of wildfire prevention and suppression advances, so too will the technological innovations that will allow for safer, longer-lasting and ecologically sensitive construction. As in many other fields, California is expected to emerge as a leader in wildfire resistant building and material requirements, and will undoubtedly play a key role in shaping fire policy throughout the United States.
Richard Glucksman is a partner, and Ravi Mehta is senior counsel, at Chapman Glucksman Dean & Roeb. rglucksman@cgdrlaw.com; rmehta@cgdrlaw.com
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Business Risk Exclusions Bar Faulty Workmanship Claim
December 21, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe manufacturer of roofing and waterproofing systems was unsuccessful in securing coverage for alleged faulty workmanship due to the "your work" and "your product" exclusions. Siplast, Inc. v. Emplrs Mut. Cas. Co., 2020 U.S. Dist. LEXIS 176539 (N.D. Texas Sept. 25, 2020).
Siplast was sued in New York by the Archdiocese for work done at Cardinal Spellman High School. The Archdiocese purchased a Siplast Roof System for the high school. Vema Enterprises installed the roof system. The roof system was covered by a guarantee.
After completion, school officials noticed water damage in the ceiling tiles throughout the school. A consultant hired by the Archdiocese concluded that the leaks were caused by the workmanship and the materials that were compromising the entire roof membrane and system. Siplast determined the guarantee was not applicable. The Archdiocese informed Siplast that it would repair the roof and hold Siplast liable for the costs. Siplast gave notice of the claim to Employers, but coverage was denied.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Dallas Condo Project to Expand
November 20, 2013 —
CDJ STAFFCooper & Stebbins has announced that they are building additional units at Southlake Town Square. One set of additions will expand the Garden District Brownstones, which were built in 2006. There will additionally be a five-story building to be called The Residences.
Southlake Town Square is a mixed-use development, combining retail and residences.
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