Seattle Washington Building Expert Directory

Private Project Payment Bonds and Pay if Paid in Virginia

January 05, 2017 — Christopher G. Hill – Construction Law Musings
One of the many items of construction law that has always been about as clear as mud has been the interaction between a contractual pay if paid clause and payment bond claims either under the Federal Miller Act or Virginia’s “Little Miller Act.” While properly drafted contractual “pay if paid” clauses are enforceable by their terms in Virginia, what has always been less clear is whether a bonding company can take advantage of such a clause when defending a payment bond claim. As always, these questions are very fact specific both under the Federal Act and the state statute. I wish that this post would answer this question, but alas, it will not. A recent case from the City of Roanoke, Virginia looked at the interaction between a payment bond and a “condition precedent” pay if paid clause as it relates to a private project that is not subject to the Little Miller Act. In the case of IES Commercial, Inc v The Hanover Insurance Company, the Court examined a contractual clause between Thor Construction and IES Commercial in tandem with the bond language between Hanover Insurance Company and Thor as it related to a surprisingly familiar scenario. The general facts are these: IES performed, Thor demanded payment from the owner for the work that IES performed and the owner, for reasons that are left unstated in the opinion, refused to pay. IES sues Hanover pursuant to the payment bond and Hanover moves to dismiss the suit because Thor hadn’t been paid by the owner and therefore Hanover could take advantage of the pay if paid language. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Builder and County Tussle over Unfinished Homes

November 13, 2013 — CDJ STAFF
Rivard, Florida has been trying to get rid of a group of unfinished homes destroyed. Now Hernando County officials have decreed that the partially-built homes are unsafe and must be demolished. However, after the building permits were withdrawn, Costa Homes filed a lawsuit asking that they be reinstated. The county had given the builder a deadline to file new permits, but were met with a lawsuit. Costa Homes seeks to be relived of the county’s requirement that each of the six homes be provided with $10,000 bond and also finds the county’s completion schedule to be “so short it constitutes a prescription for failure.” Building officials had declared the structures unsafe in August and had stipulated that they had to be made safe. Read the court decision
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Quick Note: Independent Third-Party Spoliation Of Evidence Claim

June 18, 2019 — David Adelstein - Florida Construction Legal Updates
In an earlier posting I discussed the difference between first-party spoliation of evidence and third-party spoliation of evidence. There is NO independent cause of action for first-party spoliation of evidence because that can be dealt with directly in the underlying lawsuit. This deals with the assertion that an actual party to a lawsuit spoiled evidence. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Strangers in a Strange Land: Revisiting Arbitration Provisions to Account for Increasing International Influences

July 16, 2023 — William Underwood - ConsensusDocs
Arbitration is nothing new. Neither is globalization. But the two are coming together in ways that have incrementally influenced the manner in which many arbitrations are now conducted. And this merits a re-examination of old arbitration clauses to account for some of these new influences. With that in mind, this article will examine some basic considerations when examining arbitration agreements within a construction industry that continues to see the increasing participation of foreign companies in domestic projects. Although this is not a comprehensive review of best drafting practices, nor is it a full survey of the differences between domestic and international arbitration, this article will nonetheless highlight a few basic concepts to keep in mind when reviewing arbitration clauses. As a basic starting point, the continuing globalization of the construction industry has led to distinct impacts on the ways in which parties conduct arbitrations in the United States. The increased participation of international companies in domestic construction projects has naturally led to the application of international legal concepts to domestic alternative dispute resolution. And the increasing prevalence of these international concepts has led to a number of important trends that can impact the way arbitrations are handled. Read the court decision
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Reprinted courtesy of William Underwood, Jones & Walker (ConsensusDocs)
Mr. Underwood may be contacted at wunderwood@joneswalker.com

Editorial: Qatar Is Champion of Safety Hypocrisy in Migrant Worker Deaths

December 26, 2022 — ENR Editorial Board - Engineering News-Record
Once the World Cup soccer tournament concludes, decency dictates that someone should put a wrecking ball to Qatar’s Al Bayt and Lusail stadiums, where the opening ceremonies and matches were held. There’s no polite way to say it: bulldozing the World Cup sports facilities is the only way to amplify to the world the cost in migrant construction workers lives in all that was constructed. Reprinted courtesy of ENR Editorial Board, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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$109-Million Renovation Begins on LA's Willowbrook/Rosa Parks Station

October 02, 2018 — Greg Aragon - Engineering News-Record
The Los Angeles County Metropolitan Transportation Authority (Metro), along with the Los Angeles office of Stantec, recently began work on the $109-million Willowbrook/Rosa Parks Station Improvement Project in Los Angeles. Read the court decision
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Reprinted courtesy of Greg Aragon, ENR
ENR may be contacted at ENR.com@bnpmedia.com

ASHRAE Approves Groundbreaking Standard to Reduce the Risk of Disease Transmission in Indoor Spaces

July 10, 2023 — ASHRAE
ATLANTA, June 27, 2023 (GLOBE NEWSWIRE) -- ASHRAE announced the approval for publication of its highly anticipated standard to reduce the risk of airborne infectious aerosol transmission in buildings, bringing numerous benefits to occupants and promoting healthier environments. ASHRAE Standard 241, Control of Infectious Aerosols establishes minimum requirements to reduce the risk of disease transmission by exposure to infectious aerosols in new buildings, existing buildings, and major renovations. Infectious aerosols are tiny, exhaled particles that can carry pathogens that cause infections or disease. These particles are so small that they can remain in the air for long periods of time. Use of this standard could reduce exposure to the SARS-COVID-2 virus, which causes COVID-19, the flu virus and other pathogens. Standard 241 provides requirements for many aspects of air system design, installation, operation, and maintenance. Standard 241 available now for presale in the ASHRAE Bookstore. About ASHRAE Founded in 1894, ASHRAE is a global professional society committed to serve humanity by advancing the arts and sciences of heating ventilation, air conditioning, refrigeration, and their allied fields. For more information and to stay up-to-date on ASHRAE, visit ashrae.org and connect on Instagram, LinkedIn, Facebook, Twitter and YouTube. Read the court decision
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The Double-Breasted Dilemma

July 18, 2022 — Lauren E. Rankins & Saloni Shah - ConsensusDocs
What Is A Double-Breasted Operation? A double-breasted operation is when a firm has two entities, and one entity performs work under collective bargaining agreements and the other does not. While this type of operation is not outright prohibited, it is often subject to a variety of challenges and scrutiny. To legally run a double-breasted operation, the two companies must remain separate and distinct. If the companies are not sufficiently separate and distinct from one another, the National Labor Relations Board (“NLRB”) or a court may find that the two companies are operating as a single entity or that the non-union company, or also known as the open shop, is merely an alter ego of the union company and, therefore, bound by the terms of the collective bargaining agreement. In order to determine whether the companies are sufficiently separate and distinct, the two entities must pass either the single employer test or the alter ego test depending on the nature of the double-breasted operation. Typically, the single employer test is used when the two entities run parallel operations, and the alter ego test is used when the open shop replaces the union company. Under the single employer test, the NLRB or courts will generally consider four factors: (1) the interrelation of operations; (2) common management; (3) common control of labor relations; and (4) common ownership. The alter ego test does not require a finding that the companies are a single bargaining unit, but analyzes to what extent the two entities have substantially identical management, business operation and purpose, business equipment, customers, and ownership. While common ownership is a factor considered under both the single employer and alter ego tests, common ownership alone is not dispositive of whether the companies are sufficiently separate and distinct. In other words, the NLRB and courts do not simply look for common ownership to determine whether the double-breasted operation is lawful. It is merely one of many factors to consider. Read the court decision
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Reprinted courtesy of Lauren E. Rankins, Watt, Tieder, Hoffar & Fitzgerald, LLP (ConsensusDocs)
Ms. Rankins may be contacted at lrankins@watttieder.com

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