Maybe Supervising Qualifies as Labor After All
May 22, 2023 —
Christopher G. Hill - Construction Law MusingsRemember back in 2021 when I
“mused” about Dickson v. Fidelity and Deposit Company of Maryland et al.? Remember how the Eastern District of Virginia held that mere supervision does not qualify as “labor” under the federal
Miller Act? Well, the 4th Circuit recently weighed in on the appeal of that case and had some interesting things to say about the definition of labor.
As a quick reminder, Plaintiff worked as a project manager on a project to repair and upgrade certain stairs at the Pentagon. Plaintiff subcontracted with prime contractor Forney Enterprises Inc. on this project. On Dec. 20, 2018, the prime contract was terminated. Plaintiff filed the Miller Act suit on Feb. 5, 2020. Dickson alleged that Fidelity and Deposit Company of Maryland, or F&D, must pay him, pursuant to the Miller Act, the amount he is owed for the labor he performed on the project. Now before the district court were cross-motions for summary judgment. In evaluating Plaintiff’s claims, the district court examined the defendant’s claims that (1) Dickson’s work did not qualify as “Labor” under the Miller Act, and (2) that the suit was not timely filed. The Eastern District of Virginia court agreed with both arguments.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Liability Cap Does Not Exclude Defense Costs for Loss Related to Deep Water Horizon
May 01, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe Texas Supreme Court found that Lloyd's endorsement imposing a cap on liability for a joint venture did not exclude coverage for defense costs. Anadarko Petroleum Corp. v. Houston Cas. Co. et al., 2019 Texas LEXIS 53 (Texas Jan. 25 2019j.
Pursuant to a joint venture agreement, Anadarko held a 25% ownership interest in the Macondo Well in the Gulf of Mexico. When the well blew out, numerous third parties filed claims against BP entities and Anadarko. Many of the claims were consolidated into a multi-district litigation (MDL). The MDL court granted a declaratory judgment finding BP and Anadarko jointly and severally liable. BP and Anadarko reached a settlement in which Anadarko agreed to transfer its 25% ownership interest to BP and pay BP $4 billion. In exchange, BP agreed to release any claims it had against Anadarko and to indemnify Anadarko against all other liabilities arising out of the Deepwater Horizon incident. BP did not agree, however, to cover Anadarko's defense costs.
Anadarko had a policy through Lloyd's. The policy provided excess-liability coverage limited to $150 million per occurrence. Lloyd's paid Anadarko $37.5 million (25% of the $150 million limit) based upon Anadarko 25% ownership in the joint venture. Anadarko argued that Lloyd's still owed all of Anadarko's defense expenses, up to the $150 million limit.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Hold on Just One Second: Texas Clarifies Starting Point for Negligence Statute of Limitations
July 11, 2022 —
Lian Skaf - The Subrogation StrategistIn construction or similar ongoing projects, problems often pop up. Sometimes they can pop up again and again. Making things even more complicated, one problem may affect another, seemingly new problem. When these construction problems result in property damage, timelines tend to overlap and determining when a statute of limitation begins to run for a particular claim can be difficult. Especially in states with short statute of limitations for tort claims like Texas, knowing when a statute begins to run is crucial for a subrogation professional.
In Hussion St. Bldgs., LLC v. TRW Eng’rs, Inc., No. 14-20-00641-CV, 2022 Tex. App. LEXIS 2193, 2022 WL 1010313, the Court of Appeals of Texas provided clarity on when the two-year statute of limitations for tort claims begins to run. Reversing the judgment from the lower court, the appellate court denied summary judgment to the defendant, holding that, despite there being existing issues with the ongoing construction project, the negligence cause of action for Hussion Street Buildings, LLC (Hussion) did not begin to run more than two years prior to filing suit.
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Lian Skaf, White and Williams LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
Florida Duty to Defend a Chapter 558 Right to Repair Notice
July 30, 2015 —
Scott Patterson – CD CoverageIn Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Co., 2015 WL 3539755 (S.D. Fla. 2015), Altman was the general contractor for a residential condominium project. The condominium association served Altman with Chapter 558 notices. A Chapter 558 notice is a statutory prerequisite to a property owner’s construction defect lawsuit and provides the contractor with an opportunity to respond and avoid litigation. Altman demanded that its CGL insurer, Crum & Forster, provide a defense to the Chapter 558 notices by hiring counsel to represent Altman’s interests. While not disputing that the claimed defects may be covered under the policy, Crum & Forster denied any duty to defend against the notices on the basis that they did not constitute a “suit.” Altman filed suit.
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Scott Patterson, CD Coverage
FEMA Fire Management Assistance Granted for the French Fire
July 08, 2024 —
The Federal Emergency Management AgencyOAKLAND, Calif. – The Federal Emergency Management Agency's (FEMA) Region 9 Administrator authorized the use of federal funds on July 4 at 11:37 p.m. PDT / 2:37 a.m. EDT to assist the state of California to combat the French Fire burning in Mariposa County.
On July 4, the state of California submitted a request for a Fire Management Assistance Grant (FMAG). At the time of the request, the fire threatened approximately 1,019 homes in and around Mariposa, CA, population 1,300. 95% of the threatened homes are primary residences and 5% are secondary residences.
The fire started on July 4, 2024 and had burned more than 790 acres of State and private land. The fire was 0% contained. There are five large fires burning uncontrolled within the State.
FMAGs provide federal funding for up to 75 percent of eligible firefighting costs. The Disaster Relief Fund provides allowances for FMAGs through FEMA to assist in fighting fires that threaten to become a greater incident.
Eligible costs covered by FMAGs can include expenses for field camps, equipment use, materials, supplies and mobilization, and demobilization activities attributed to fighting the fire.
For more information on FMAGs, visit https://www.fema.gov/assistance/public/fire-management-assistance.
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Labor Under the Miller Act And Estoppel of Statute of Limitations
May 08, 2023 —
David Adelstein - Florida Construction Legal UpdatesIf you want a case that goes into history of the federal Miller Act, check out the Fourth Circuit Court of Appeal’s opinion in U.S. ex rel. Dickson v. Fidelity and Deposit Company of Maryland, 2023 WL 3083440 (4th Cir. 2023). While I am not going to delve into this history, it’s a worthwhile read. It is also a worthwhile read for two other points.
First, it discusses what constitutes “labor” under the Miller Act.
Second, it discusses doctrine of estoppel to prevent a surety from raising the statute of limitations to bar a Miller Act payment bond claim, which is a doctrine you do NOT want to rely on, as this case reinforces.
Both of these points applicable to Miller Act claims are discussed below.
This case dealt with a prime contractor renovating staircases that was terminated by the federal government. The prime contractor hired a professional engineer as its subcontractor to serve as its project manager and supervise labor on the project. The engineer/subcontractor also had “logistical and clerical duties, taking various field measurements, cleaning the worksite, moving tools and materials, and sometimes even watering the concrete himself.” Dickson, supra, at *1.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Because I Haven’t Mentioned Mediation Lately. . .
November 23, 2020 —
Christopher G. Hill - Construction Law MusingsAny regular reader of Construction Law Musings knows that I am both a great believer in mediation and a certified Virginia mediator. After the last few weeks in which I participated in mediation by Zoom, a Judicial Settlement Conference (read, court-ordered mediation with a retired judge), and will be participating in another mediation in person next week, it seems as if others believe in the process as well.
After all of this mediation activity, all of which related to construction project-related disputes, I am more convinced than ever that almost every construction case should at least be submitted for mediation. The list below gives my reasons for saying this:
- The parties are in control. In litigation or arbitration, the parties present their evidence to a third party or parties with no familiarity with the “boots on the ground” reality of the construction project at issue. This third party gives a cold review of what evidence court rules allow them to consider and gives a final ruling that one side “wins” and the other side “loses.” This decision has monetary consequences for the losing party, not the least of which is a large attorney fee bill after potentially several years of legal wrangling. With mediation, those closest to the project, the parties, can say what they want, present what they feel to be the best case, and work for a solution. The solution can be flexible and allow the two sides to reach a business decision that is at least better than a large monetary judgment against one of the parties that is only further enforceable in court.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Antidiscrimination Clause Required in Public Works and Goods and Services Contracts –Effective January 1, 2024
January 22, 2024 —
Travis Colburn - Ahlers Cressman & SleightIn July 2023, the Washington legislature passed Senate Bill 5186, which mandates inclusion of select antidiscrimination clauses in every state contract and subcontract for public works, goods, or services executed after January 1, 2024.
[i] RCW 49.60.530(3) codifies the now-required antidiscrimination clauses, which prohibit four categories of discrimination against any person because of age, sex, marital status, sexual orientation, gender identity, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability (the “Protected Class”).
Under the new law, public contractors and subcontractors (“Public Contractor”) may not refuse to hire a person because that person is a member of the Protected Class, unless that refusal is based upon a bona fide occupational qualification or if a person with a particular disability would be prevented from properly performing the particular work involved.
[ii] Similarly, Public Contractors may not discharge or bar a person from employment or discriminate against any person – either in terms of compensation or other terms and conditions of employment – because that person is a member of the Protected Class.
[iii] Last, Public Contractors may not print or circulate (or cause to be printed or circulated) any statement, advertisement, publication, form of application for employment, or make inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to the Protected Class.
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Travis Colburn, Ahlers Cressman & SleightMr. Colburn may be contacted at
travis.colburn@acslawyers.com
