The Construction Lawyer as Counselor
June 10, 2019 —
Christopher G. Hill - Construction Law MusingsIt’s been a while since I discussed the role that I believe a construction lawyer should serve. Back in 2013, I discussed how those of us that practice construction law are seen as “necessary evils.” I was thinking over the weekend about certain clients and matters (as I often do, particularly in the shower) and came to the conclusion that the best role for me as a Virginia construction attorney is that of counselor and sounding board for my clients. Sure I come from a litigation background, enjoy working with other construction lawyers here in the Commonwealth, and often the first contact that I have with clients is when there is a problem, but I enjoy my practice, and I believe clients are more satisfied with their interactions with me when I try and provide a more cost effective and pragmatic solution than that which litigation or arbitration provides.
The six years of solo construction practice since 2013 (yes, I’m close to the 9 year mark with my practice) has only served to cement the fact that construction professionals need and want the “counselor” portion of “attorney and counselor at law.” Working as a sort of “in house counsel” to various construction companies, as opposed to simply dealing with the litigation, allows me to better understand their businesses and assist them in avoiding problems through contract review, discussions of situations that come up short of claims, and general risk management. I also get to know these mostly small business owners on a more personal level (sometimes even resulting in a fishing trip or two).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Effective July 1, 2022, Contractors Will be Liable for their Subcontractor’s Failure to Pay its Employees’ Wages and Benefits
July 25, 2022 —
Edward O. Pacer & David J. Scriven-Young - Peckar & AbramsonOn June 10, 2022, Illinois Governor J.B. Pritzker signed two House Bills that amend the Illinois Wage Payment & Collections Act, 820 ILCS 115 et. seq. (“Wage Act”), to provide greater protection for individuals working in the construction trades against wage theft in a defined class of projects. Pursuant to this new law, every general contractor, construction manager, or “primary contractor,” working on the projects included in the Bill’s purview will be liable for wages that have not been paid by a subcontractor or lower-tier subcontractor on any contract entered into after July 1, 2022, together with unpaid fringe benefits plus to attorneys’ fees and costs that are incurred by the employee in bringing an action under the Wage Act.
These amendments to the Wage Act apply to a primary contractor engaged in “erection, construction, alteration, or repair of a building structure, or other private work.” However, there are important limitations to the amendment’s applicability. The amendment does not apply to projects under contract with state or local government, or to general contractors that are parties to a collective bargaining agreement on a project where the work is being performed. Additionally, the amendment does not apply to primary contractors who are doing work with a value of less than $20,000, or work that involves only the altering or repairing of an existing single-family dwelling or single residential unit in a multi-unit building.
Reprinted courtesy of
Edward O. Pacer, Peckar & Abramson and
David J. Scriven-Young, Peckar & Abramson
Mr. Pacer may be contacted at epacer@pecklaw.com
Mr. Scriven-Young may be contacted at dscriven-young@pecklaw.com
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Holding the Bag for Pre-Tender Defense Costs
February 02, 2017 —
John J. Kozak, Esq. - Florida Construction Law NewsFor a variety of reasons, additional insureds (and even named insureds) under commercial general liability policies will sometimes wait months, and even years, to tender the defense of a claim or lawsuit, incurring significant legal fees in the interim. When the claim finally is tendered, a dispute often arises over who should pay the pre-tender defense costs. Surprisingly, there is very little Florida legal authority specifically dealing with this issue. However, the recent federal 11th Circuit Court of Appeals case of EmbroidMe.com, Inc. v. Travelers Property Casualty Co. of America, No. 14-10616, 2017 U.S. App. LEXIS 368 (11th Cir. Jan. 9, 2017), applying Florida law, addresses the issue head-on and provides CGL carriers with a large hammer in refusing to pay pre-tender fees.
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John J. Kozak, Esq., Cole, Scott & Kissane, P.A.Mr. Kozak may be contacted at
john.kozak@csklegal.com
Construction Litigation Roundup: “Just Hanging Around”
August 14, 2023 —
Daniel Lund III - LexologyA subcontractor asserting a payment bond claim for “standby” time for its equipment on the Cline Avenue bridge project (over Indiana Harbor and Ship Canal in East Chicago, Indiana) received pushback from the payment bond surety.
In fact, the duration of the standby time occurred after the surety’s principal, the general contractor, had been placed in default and terminated on the general contract. According to the surety: “After termination of the contract… it is impossible for labor, materials, and equipment to have been furnished for use in performing the terminated contract.” The surety filed a motion for summary judgment.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Safety, Compliance and Productivity on the Jobsite
November 18, 2019 —
Matthew Ramage - Construction ExecutiveWith any project, managing a large contingency of workers—all with varying levels of security clearance—can be a logistical headache.
On the majority of construction sites, managers lack the resources to quickly and accurately identify all onsite personnel and ensure the right labor, equipment and materials are in the right place at the right time. Equally important, construction managers need to know if worker certifications are current and only allow access to authorized areas.
Multiple factors compound the need for better transparency across the workforce, including:
- Safety. Construction work is inherently dangerous. In 2017, nearly 1,000 fatalities occurred on construction sites. This means that the industry accounted for more than 20% of private sector fatalities across all industries.
- Regulatory. The Federal government has a heightened awareness of jobsite dangers and is targeting companies that are not making every effort to maximize the workers’ safety.
- Security. Sites in urban environments require round-the-clock protection from urban explorers, thieves and the general public.
- Employee wage disputes. Lawsuits and disputes over wages and hourly employment are increasing.
- Reduced productivity. It can be difficult to measure and track productivity in construction.
Reprinted courtesy of
Matthew Ramage, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Defense Owed for Product Liability Claims That Do Not Amount to Faulty Workmanship
December 30, 2013 —
Tred Eyerly — Insurance Law HawaiiThe trial court's holding that there was no occurrence based on claims from faulty workmanship was reversed by the appellate division of the Pennsylvania Superior Court. The underlying claims were based on product liability tort claims, not faulty workmanship. Indalex Inc. v. National Union Fire Insurance Co. of Pittsburgh, PA., 2013 Pa. Super. LEXIS 3186 (Pa. Superior Court Dec. 3, 2013).
The underlying lawsuits claimed that the insureds' windows and doors were defectively designed or manufactured, which resulted in water leakage causing physical damage, such as mold and cracked walls. There were also personal injury claims.
The insureds had a primary policy with OneBeacon Insurance Group, but the policy limits were exhausted. The insureds turned to their commercial umbrella policy issued by National Union. The policy defined occurrence as "an accident, including continuous or repeated exposure to conditions, which results in Bodily Injury or Property Damage neither expected nor intended from the standpoint of the Insured."
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
Landmark San Diego Hotel Settles Defects Suit for $6.4 Million
March 04, 2011 —
Beverley BevenFlorezCDJ STAFFAfter five years of legal battles, the condo owners of the El Cortez Hotel building in downtown San Diego settled for $6.4 million, as reported by The San Diego Union-Tribune on March 28, 2011. The Homeowners Association will net just over $3 million from the settlement.
The litigation may have had an adverse effect on the value of the condos within the El Cortez Hotel building. According to an article by Kelly Bennett of Voice of San Diego, “Many condos in the building originally sold for more than $600,000. Currently, the three units on the market are asking for just more than $200,000, the U-T said.”
Andrew Berman, the owners’ attorney, told The San Diego Union-Tribune that the five years of litigation included six lawsuits, 200 depositions, and multiple construction tests.
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Breach of a Construction Contract & An Equitable Remedy?
September 22, 2016 —
David Adelstein – Florida Construction Legal UpdatesIn payment or collection-type lawsuits, the party suing for money sometimes asserts a claim for unjust enrichment or quantum meruit as an alternative equitable remedy to a breach of contract claim. Frankly, sometimes a party will do this as a means to throw everything against the wall hoping something, just something, sticks. However, if there is a contract by and between the parties, equitable claims such as unjust enrichment or quantum meruit will invariably fail. They will fail because a party cannot circumvent a contract simply because their recourse may prove better under an equitable theory. It doesn’t work like that! And, it should not!
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David M. Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com