New Evidence Code Requires Attorney to Obtain Written Acknowledgement that the Confidential Nature of Mediation has been Disclosed to the Client
January 02, 2019 —
Steven J. Pearse, Esq. & David A. Napper, Esq. – Chapman Glucksman Dean Roeb & BargerSenate Bill 954: MEDIATION CONFIDENTIALITY DISCLOSURES.
California regards mediation as a beneficial process for parties to resolve disputes in an expeditious and economical fashion. To assure open and candid participation, there is a longstanding policy in California to maintain confidentiality during the mediation process. However, the mediation confidentiality statutes have prevented some clients from suing their·attorneys for alleged malpractice that occurred during the mediation process. (see Cassel v. Superior Court, (2011) 51 Cal.4th 113). Senate Bill ("SB") 954, was recently passed and thereafter approved by the Governor on September 11, 2018 to address this concern.
SB 954, which will amend California Evidence Code section 1122 and add California Evidence Code section 1129, requires that an attorney representing a client participating in a mediation or a mediation consultation provide that client with a written disclosure and acknowledgement containing the mediation confidentiality restrictions as set forth in the California Evidence Code.
This written disclosure and acknowledgement requirement does not apply to class or representative actions. Additionally, the failure of an attorney to follow the new requirement will not be a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation. Any communication, document, or writing related to an attorney's compliance with the disclosure requirement will not be considered confidential and may be used in a disciplinary proceeding if the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.
California Evidence Code section 1129 sets forth the exact language that must be used in the disclosure. It even informs the client that all communications between the client and the attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if the client later decides to sue the attorney for malpractice because of something that happens during the mediation.
The new disclosure requirement will allow mediation to maintain the confidentiality that encourages open and candid communications during the process while ensuring that before clients agree to mediation that the clients are made aware of how that confidentiality can potentially impact them. SB 954, will take effect on January 1,2019.
Reprinted courtesy of
Stephen J. Pearce, Chapman Glucksman Dean Roeb & Barger and
David A. Napper, Chapman Glucksman Dean Roeb & Barger
Mr. Pearce may be contacted at dnapper@cgdrblaw.com
Mr. Napper may be contacted at jpaster@HuntonAK.com
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Insurance Policy Language Really Does Matter
August 19, 2015 —
Craig Martin – Construction Contractor AdvisorThe debate continues on whether a subcontractor’s faulty work constitutes property damage and an occurrence such that the insurer must cover the claim. The most recent court to weigh in on this issue is the New Jersey appellate court (one step down from the New Jersey Supreme Court) in Cypress Point Condominium Association, Inc. v. Adria Towers, LLC.
In this case, the condominium association sued the general contractor, who also acted as the developer, and subcontractors for faulty workmanship. The condominium association also sued the insurer for the general contractor, demanding payment of consequential damages caused by a subcontractor’s faulty work. The trial court granted summary judgment to the insurer, holding that the subcontractor’s faulty work was not property damage and thus not an occurrence under the Commercial General Liability (CGL) insurance policy, so no coverage.
The appellate court reversed the trial court’s decision, finding that the claims for consequential damages caused by faulty workmanship constituted property damage and an occurrence as defined in the policy. This was a shift from earlier opinions in New Jersey.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Traub Lieberman Partner Bradley T. Guldalian Wins Summary Judgment
November 19, 2021 —
Bradley T. Guldalian - Traub LiebermanOn September 14, 2021, Traub Lieberman Partner Bradley T. Guldalian secured summary judgment on behalf of a City which operated a park containing a natural bathing spring in Sarasota County, Florida. The underlying loss occurred when the Plaintiff went to the park, entered the spring without incident, swam for more than an hour, then exited the spring and was returning to the area where she had stored her belongings when she slipped and fell on mud and grass, sustaining an open angulated fracture of her right tibia and fibula. The Plaintiff was rushed to the hospital where she underwent open reduction, internal fixation surgery on her right leg which consisted of implantation of a metal rod into the medullary cavity of her tibia that was secured by two proximal and two distal interlocking screws. She was in the hospital for four days. Upon discharge, the Plaintiff was placed in a walking boot and confined to a wheelchair for several months. The Plaintiff incurred nearly $100,000 in medical expenses. The Plaintiff filed a premises liability action against the City claiming it failed to maintain its premises in a reasonably safe condition. The Plaintiff also alleged that the City failed to warn her that the area where she had stored her belongings had become saturated and slippery proximately causing her fall and resulting injuries.
After the close of discovery, Mr. Guldalian filed a Motion for Summary Judgment on behalf of the City arguing the wet grass and mud upon which the Plaintiff fell and injured herself was a byproduct of patrons going in and out of the water and walking to and from the area where they stored their belongings, was open and obvious, and did not constitute a dangerous condition as a matter of law. Citing to case law from the Florida Supreme Court which held that it is common knowledge that walks adjacent to, leading to, or surrounding a bathing area generally have water constantly thrown upon them and are in a slippery condition, as well as deposition testimony from the Plaintiff confirming she had been swimming at the spring for the past eighteen plus years and was “very familiar” with the park, the spring, and the area where she normally stored her belongings, Mr. Guldalian argued that some injury-causing conditions, like wet grass and mud surrounding a swimming area, are simply so open and so obvious that they cannot be held, as a matter of law, to give rise to liability as dangerous conditions.
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Bradley T. Guldalian, Traub LiebermanMr. Guldalian may be contacted at
bguldalian@tlsslaw.com
No Third-Quarter Gain for Construction
November 18, 2011 —
CDJ STAFFThe Associated Builders and Contractors released their analysis of construction work under contract and found that there was no increase in construction backlog from the second quarter of 2011. There was still improvement, however, over 2010, as the third quarter backlog is 16.3 percent higher than that of a year ago.
The current backlog is 8.1 months, which according to Anirban Basu, the chief economist of the ABC, “is consistent with flat construction spending.” He noted that less than 8 months indicated a decline.
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Force Majeure, Construction Delays, Labor Shortages and COVID-19
April 06, 2020 —
Elizabeth J. Dye - Gravel2Gavel Construction & Real Estate Law BlogThe global effect of the Coronavirus disease (COVID-19) is still unknown, and the progress of many large-scale construction projects has been affected by “Shelter in Place” orders, although some states and localities have classified construction projects as “essential.” Just last Friday, New York shut down all construction, with few exceptions.
Several states have enacted gathering bans of all sizes (including Michigan, Oregon, New Mexico, Washington, New York, New Jersey, Wisconsin, Illinois, Indiana, Ohio, West Virginia, California) and more people are likely to be quarantined as widespread testing becomes available. These decisions will undoubtedly affect the supply of materials and labor necessary for construction projects.
Officials have turned to increasingly disruptive and measures to control the spread of the virus in addition to event prohibitions and school closures, including restricting people to their homes, and closing businesses that are not “essential.” While many companies have adopted mandatory telecommuting, this is an impossibility on the construction sites. Eventually, supply and labor shortages due to governmental restrictions or quarantines will affect the critical path of construction projects.
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Elizabeth J. Dye, PillsburyMs. Dye may be contacted at
elizabeth.dye@pillsburylaw.com
Construction Jobs Keep Rising, with April Gain of 33,000
June 10, 2019 —
Tom Ichniowski - Engineering News-RecordThe construction employment picture continues to brighten, as the industry gained 33,000 jobs in April and its jobless rate improved, the federal Bureau of Labor Statistics has reported.
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Tom Ichniowski, ENRMr. Ichniowski may be contacted at
ichniowskit@enr.com
Minnesota Civil Engineers Give the State's Infrastructure a "C" Grade for the Second Time
May 02, 2022 —
American Society of Civil EngineersSAINT PAUL, Mn. — The Minnesota Section of the
American Society of Civil Engineers (ASCE) today released preliminary findings from the 2022
Report Card for Minnesota's Infrastructure, with 10 categories of infrastructure receiving an overall grade of a 'C', meaning Minnesota's infrastructure is in mediocre condition. Minnesota has taken steps to make its infrastructure network more sustainable to withstand increasingly severe weather, but additional steps must be taken as the state's infrastructure is aging. Funding has been limited for systems throughout the state, particularly for surface transportation networks, and local and state funding must be increased to bring these critical systems up to speed. Civil engineers graded aviation (B), bridges (C), dams (C), drinking water (C-), energy (C), parks (B-), ports (C-), roads (D+), transit (C-) and wastewater (C).
"The ASCE report card serves as an important benchmark for where our infrastructure currently stands and lays out how we can make improvements," said Sen. Sandy Pappas, DFL-St. Paul. "Knowing that these systems play such a crucial role in economic progress and the safety of Minnesotan families, we have made infrastructure a topline issue and must continue to do so to secure a prosperous future here in Minnesota."
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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PFAS: From Happy Mistake to Ubiquity to Toxic Liability (But is there coverage?)
March 14, 2022 —
Michael S. Levine & Rachel E. Hudgins - Hunton Andrews KurthIn 1938, a DuPont chemist’s experiment yielded not—as he first thought—a lumpen, waxy mistake, but a new chemical with remarkable properties: heat-resistance, chemical stability, and low surface friction. Decades of continuing experimentation yielded a class of chemicals with the capacity to make non-stick, water-resistant coatings. In time, these chemicals, per- and polyfluoroalkyl substances (PFASs), would become a major component in thousands of consumer goods: food packaging, non-stick cookware, waterproof clothing, paint, stain-resistant carpets and furniture, and firefighting foams. The discovery of the toxicity of these remarkable chemicals lagged behind the widespread adoption, but eventually yielded a moniker that reflected PFAS’s stability and longevity: “Forever Chemicals.”
In October 2021, the Biden administration announced
a plan to address, among other concerns, PFAS’s migration to drinking water sources. EPA Administrator Michael S. Regan debuted the plan in Raleigh, North Carolina alongside Governor Roy Cooper.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Rachel E. Hudgins, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Hudgins may be contacted at rhudgins@HuntonAK.com
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