Boys (and Girls) of Summer: New Residential Solar Energy System Disclosures Take Effect January 1, 2019
October 02, 2018 —
Garret Murai - California Construction Law BlogAs we come to the end of Summer, the California Contractors State License Board advises licensees that it has finalized its Solar Energy System Disclosure Document. The Solar Energy System Disclosure Document, required under Business and Professions Code Section 7169 as amended by Assembly Bill 1070 in 2017, requires that the disclosure language of the document be:
- Included in all contracts providing for the installation of a “solar energy system” on a residential building;
- Included on the front page or cover page of the contract;
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
New York Preserves Subrogation Rights
September 06, 2023 —
Lian Skaf - The Subrogation StrategistThe insurer’s right of subrogation is equitable in nature, even if not based in contract. However, since the insurer steps into the shoes of its insured and is limited to the rights of its insured, an integral part of the investigation process is determining what rights the insured has. Whether or not the insured can settle with the tortfeasor and that whether the settlement would also apply to the subrogated carrier is a question the Supreme Court of New York, a trial court, recently addressed.
In Utica First Ins. Co. v. Homeport I LLC, et al., No. 150448/2022, 2023 N.Y. Misc. LEXIS 3087 (N.Y. Sup. Ct.), the plaintiff insurance carrier’s insured, SI Waterfront Management Inc. (SI Waterfront), owned and operated a restaurant called Wynwood at 24 Navy Pier Court in Staten Island, New York. The owner of the property was Homeport I LLC (Homeport). Significant construction work pertaining to plumbing and draining lines at the property was done by Ironstate Holdings, LLC (Ironstate), the plumbing portion of which was conducted by subcontractor Claire Construction Corp. (Claire). As a result of the construction work, on June 8, 2021, SI Waterfront allegedly sustained property damage from flooding.
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Lian Skaf, White and Williams LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
Houston Office Secures Favorable Verdict in Trespass and Nuisance Case Involving Subcontractor’s Accidental Installation of Storm Sewer Pipe on Plaintiff’s Property
June 12, 2023 —
Lewis Brisbois NewsroomHouston, Texas (May 26, 2023) - Houston Partners Joelle Nelson and Matt Begley secured a defense verdict on behalf of a gasoline services company following a four-day trial in the 284th District Court of Montgomery County, Texas.
In this case, Lewis Brisbois represented a client who hired a contractor to install a storm sewer line to mitigate flood risks to the client’s property. The contractor, however, deviated from the engineering plans and installed the storm sewer line on a neighboring property owned by the plaintiff. The storm sewer line then remained on the plaintiff’s property for five years while the parties attempted to negotiate potential solutions to the situation. The plaintiff refused multiple reasonable settlement attempts and ultimately sued the client and the contractor for continuous trespass and private nuisance. The contractor’s carrier denied coverage, making the client the target defendant. The matter proceeded to trial.
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Lewis Brisbois
Federal Public Works Construction Collection Remedies: The Miller Act Payment Bond Claim
July 30, 2015 —
William L. Porter – The Porter Law Group BulletinFederal public work construction projects are unique in that there are no Stop Payment Notice or Mechanics Lien remedies available. Furthermore, although a remedy is available by proceeding against the original contractor’s payment bond under a federal law known as the “Miller Act” and its corresponding Federal Regulations (40 USCS 3131 et seq. and 48 CFR 28.101-1 et seq.), this remedy is not available to all subcontractors or suppliers. In addition, there are circumstances where a different form of security can be substituted for the payment bond (40 USCS 3131(b)(2)).
Among those who generally cannot sue on the Miller Act Payment Bond are third-tier subcontractors and suppliers to suppliers. (See J.W. Bateson Company v. Board of Trustees, 434 U.S. 586 (1978)). As a general rule, every subcontractor, laborer, or material supplier who deals directly with the prime contractor may bring a lawsuit against the bond company providing the Miller Act Payment Bond. Further, every subcontractor, laborer, or material supplier who has a direct contractual relationship with a first tier subcontractor may bring such an action.
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William L. Porter, The Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Florida Decides Against Adopting Daubert
January 28, 2019 —
Rahul Gogineni - The Subrogation StrategistIn Delisle v. Crane Co., 2018 Fla. LEXIS 1883, 43 Fla. L. Weekly S 459, the Supreme Court of Florida reaffirmed that the appropriate test for admissibility of an expert opinion about new or novel scientific evidence is the “Frye” test, not the “Daubert” test.
As result of developing mesothelioma, Richard Delisle sued sixteen defendants, including Crane Company (Crane) and R.J. Reynolds, claiming that each exposed him to asbestos, which is a leading cause of mesothelioma. At trial, Crane and R.J. Reynolds sought to preclude the expert opinions of Mr. Delisle’s causation experts. The trial denied the motions and the jury awarded Mr. Delisle $8 million.
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Rahul Gogineni, White and WilliamsMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
Be Sure to Dot All of the “I’s” and Cross the “T’s” in Virginia
August 02, 2017 —
Christopher G. Hill - Construction Law MusingsAs a construction company from outside of Virginia that wants to work here in the Commonwealth, there are numerous “hoops” that you need to jump through to be able to perform work and most importantly get paid. Among these are obtaining a Virginia contractors license, find a registered agent here in Virginia, hopefully find a local construction lawyer to help with your contracts, and (the subject of this post), register with the Virginia State Corporation Commission for the authority to do business in the Commonwealth of Virginia.
Aside from it being a requirement of state law, the real world consequence of failing to register to do business is that, while you could file a lawsuit to enforce a claim (such as a mechanic’s lien), failure to register could cost you the ability to enforce or obtain any judgment on that lien. In other words, you could go through the costly litigation process, “win” and then be barred from any recovery simply because you did not follow this step.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Damron Agreement Questioned in Colorado Casualty Insurance v Safety Control Company, et al.
February 10, 2012 —
CDJ STAFFSafety Control and EMC appealed the judgment in Colorado Casualty Insurance Company versus Safety Control Company, Inc., et al. (Ariz. App., 2012). The Superior Court in Maricopa County addressed “the validity and effect of a Damron agreement a contractor and its excess insurer entered into that assigned their rights to sue the primary insurer.” Judge Johnsen stated, “We hold the agreement is enforceable but remand for a determination of whether the stipulated judgment falls within the primary insurer’s policy.”
The Opinion provides some facts and procedural history regarding the claim. “The Arizona Department of Transportation (“ADOT”) hired DBA Construction Company (“DBA”) to perform a road-improvement project on the Loop 101 freeway. Safety Control Company, Inc. was one of DBA’s subcontractors. As required by the subcontract, Safety Control purchased from Employer’s Mutual Casualty Company (“EMC”) a certificate of insurance identifying DBA as an additional insured on a policy providing primary coverage for liability arising out of Safety Control’s work.”
A collision occurred on site, injuring Hugo Roman. Roman then sued ADT and DBA for damages. “Colorado Casualty tendered DBA’s defense to the subcontractors, including Safety Control. Safety Control and EMC rejected the tender. Roman eventually settled his claims against DBA and ADOT. DBA and ADOT stipulated with Roman for entry of judgment of $750,000; Roman received $75,000 from DBA (paid by Colorado Casualty) and $20,000 from ADOT, and agreed not to execute on the stipulated judgment. Finally, DBA, ADOT and Colorado Casualty assigned to Roman their rights against the subcontractors and other insurers.”
Colorado Casualty attempted to recover what “it had paid to defend DBA and ADOT and settle with Roman. However, Roman intervened, and argued that “Colorado Casualty had assigned its subrogation rights to him as part of the settlement agreement.” The suit was not dismissed, but the Superior Court allowed Roman to intervene. “Roman then filed a counterclaim against Colorado Casualty and a cross-claim against the subcontractors.”
All claims were settled against all of the defendants except Safety Control and EMC. “The superior court ruled on summary judgment that EMC breached a duty to defend DBA and that as a result, ‘DBA was entitled to settle with Roman without EMC’s consent as long as the settlement was not collusive or fraudulent.’ After more briefing, the court held the stipulated judgment was neither collusive nor procured by fraud and that EMC therefore was liable to Roman on the stipulated judgment and for his attorney’s fees. The court also held Safety Control breached its subcontract with DBA by failing to procure completed-operations insurance coverage and would be liable for damages to the extent that EMC did not satisfy what remained (after the other settlements) of the stipulated judgment and awards of attorney’s fees.” Safety Control and EMC appealed the judgment.
Four reasons were given for the decision of the ruling. First, “the disagreement between Roman and Colorado Casualty does not preclude them from pursuing their claims against EMC and Safety Control.” Second, “the settlement agreement is not otherwise invalid.” Third, “issues of fact remain about whether the judgment falls within the EMC policy.” Finally, “Safety Control breached the subcontract by failing to procure ‘Completed Operations’ coverage for DBA.”
In conclusion, the Superior Court affirmed in part, reversed in part, and remanded . “Although, as stated above, we have affirmed several rulings of the superior court, we reverse the judgment against EMC and remand for further proceedings consistent with this Opinion to determine whether the stipulated judgment was a liability that arose out of Safety Control’s operations. In addition, we affirm the superior court’s declaratory judgment against Safety Control but remand so that the court may clarify the circumstances under which Safety Control may be liable for damages and may conduct whatever further proceedings it deems appropriate to ascertain the amount of those damages. We decline all parties’ requests for attorney’s fees pursuant to A.R.S. § 12-341.01 without prejudice to a request for fees incurred in this appeal to be filed by the prevailing party on remand before the superior court.”
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$1.9 Trillion Stimulus: Five Things Employers Need to Know
March 15, 2021 —
Matthew C. Lewis & Rana Ayazi - Payne & FearsOn March 11, 2021, President Biden signed H.R.1319 - American Rescue Plan Act of 2021 (“Rescue Plan”) into law—a $1.9 trillion stimulus bill. Here are five things every employer should know about the bill.
1. FFCRA Tax Credits Have Been Extended
The Rescue Plan extends the Families First Coronavirus Response Act (FFCRA) tax credit provisions—again—through September 30, 2021. (The ability to recoup the cost of FFCRA leave was previously extended in December 2020 through March 31, 2021: See related article here. Employers that opt to voluntarily provide FFCRA leave will be credited 100 percent for all qualifying wages paid under the FFCRA.
Any employer already providing FFCRA-like leave to employees under state, county, and/or local paid sick leave ordinances, especially if their business is located in California (e.g.,
Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards) should consider opting to voluntarily provide FFCRA-compliant leave, as by doing so they may be able at least partially to recoup the cost of leave they are otherwise already required to provide.
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Matthew C. Lewis, Payne & Fears and
Rana Ayazi, Payne & Fears
Mr. Lewis may be contacted at mcl@paynefears.com
Ms. Ayazi may be contacted at ra@paynefears.com
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