Anatomy of a Construction Dispute- An Alternative
February 05, 2015 —
Christopher G. Hill – Construction Law MusingsOver the past three weeks, I’ve discussed three “stages” of a construction dispute from the claim, to how to increase the pressure for payment, to the litigation. While these three steps are all too often necessary tools in your construction collection arsenal, they are expensive and time consuming. No well run construction business can or should budget for litigation. The better practice would be to engage a construction attorney early in the process and avoid the dispute altogether if possible. Unfortunately, even the best of planning can lead to the need to hire a construction lawyer for the less pleasant task of assisting you in getting paid.
This post is about an alternative to the scorched earth of stage 3 of the process that can and should be at least considered either before or after the complaint or demand for arbitration has been filed. I am of course speaking about voluntary mediation. Why did I emphasize “voluntary?” Because to me mandatory mediation (as required in many construction contracts) is a bit like forced volunteerism, it is something that the parties will go through to “check a box” but will not have their hearts in it. Remember, by the time the mandatory mediation clause kicks in, the parties are likely at an impasse in their construction dispute and are ready to fight. Being forced to mediate, especially from the party seeking payment, can (and in my experience often does) make the parties just go through the motions at best and be hostile to the process at worst. Neither of these attitudes are conducive to resolving a dispute.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Part II: Key Provisions of School Facility Construction & Design Contracts
July 21, 2018 —
David R. Cook - Autry, Hall & Cook, LLPIn
Part I of this article, published in late April, we discussed the performance risk and time risk involved with construction and design contracts, and in Part II, we will cover cost risk and political risk.
Cost Risk
School budgets are limited for many reasons, and the construction budget is no exception. As a result, contracts should guard against unwarranted cost increases and claims. In the absence of a written change order signed by the appropriate officer, the contract should absolutely prohibit additional compensation for changes in the work. It should forbid claims for all events except those within the school authority’s sole control. Even for permitted claims, the contractor must provide written notice so that the authority might alleviate the problem and control its costs. To encourage the contractor to limit costs and claims, the contract could include a shared-savings clause, which grants an incentive payment for completion within the budget.
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David R. Cook, Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
ASCE Statement on Devastating Tornado Damages Throughout U.S.
December 20, 2021 —
Tom Smith, Executive Director - American Society of Civil Engineers (ASCE)WASHINGTON, DC. – We are deeply saddened by the tragic tornado storms that ravaged six states across the Midwest and Southeastern portions of the U.S. last Friday evening, resulting in loss of life in five of those six states. Even though warnings were issued throughout the region, storms of this magnitude can be difficult to prepare for. Nevertheless, as civil engineers, our mission is to continually advance the design and construction of safe, reliable, and resilient building structures and infrastructure systems to mitigate the damage caused by storms.
ASCE 7 — a nationally-adopted, consensus-based engineering standard that is the primary reference of structural design requirements in all U.S. building codes — was recently updated to include a new chapter for tornado loads in the 2022 edition. The new tornado provisions in ASCE 7-22 were a result of a decade-long effort in partnership with the National Institute of Standards and Technology following the 2011 Joplin, MO Tornado. ASCE 7-22 provides updated design requirements for a variety of structures, including many of the types impacted by Friday's storms.
In an effort to assist, the Structural Engineering Institute of ASCE is currently offering free access to a report issued after the Joplin, MO tornado in 2011 that killed more than 150 people.
Joplin, Missouri, Tornado of May 22, 2011: Structural Damage Survey and Case for Tornado-Resilient Building Codes presents the observations, findings, and recommendations of an engineering reconnaissance team that surveyed residential structures and schools in the tornado path shortly after the event. The EF 5 tornado cut a seven-mile swath through Joplin, Missouri; it destroyed more than 5,000 buildings and killed more than 150 people.
We will continue to keep those who have been affected in our hearts and thoughts, and we share our heartfelt sympathies.
For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Newmeyer & Dillion Selected to 2017 OCBJ’s Best Places to Work List
July 26, 2017 —
Newmeyer & Dillion LLPProminent business and real estate law firm Newmeyer & Dillion LLP is proud to be one of the selected companies in the
Best Places to Work in Orange County – 2017 Survey in the category of medium sized companies. This marks the sixth consecutive year Newmeyer & Dillion LLP has made the list, affirming that its profound commitment to professionalism and client service is shared among its workforce. The firm was honored in the July 24 issue of the Orange County Business Journal.
Jeff Dennis, Newmeyer & Dillion's Managing Partner, commends the effort and commitment of each employee in achieving this result. "We strive to make Newmeyer & Dillion a great place to be, but we only set the goal. It is our employees and their ongoing loyalty and commitment to our mission that makes it happen. Together, we create a culture here that cannot be matched anywhere else."
Created in 2009, the awards program evaluates entries based on workplace policies, practices, demographics, and also collects employee surveys to measure overall satisfaction and experience. The Best Companies Group worked alongside the Orange County Business Journal in collecting and analyzing the data and is a partner in the project.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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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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Construction Litigation Roundup: “You Have No Class(ification)”
May 13, 2024 —
Daniel Lund III - LexologyIn fact, you didn’t even have a license.
A federal court in Alabama was tasked with determining whether an unlicensed contractor could recover from an Alabama project owner for in excess of $1.7 million in construction infrastructure and site work performed. In fact, the contractor “did not have a valid general contractor’s license” in the state of Alabama when it “assumed work on the project from its predecessor company.”
During the course of work on the project, the principals of an original contractor decided to go their separate ways, whereupon one of those principals announced that his new company would take over ongoing work. Roughly two months after the new company began working at the project, the contractor applied for a license with the Alabama Licensing Board of General Contractors – the license was issued within about 45 days. Then, some eight months later, the contractor added a “municipal and utilities” classification to its contractor license.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Finalists in San Diego’s Moving Parklet Design Competition Announced
September 03, 2014 —
Beverley BevenFlorez-CDJ STAFFThe city of San Diego together with the Downtown San Diego Partnership sponsored the Moving Parklet Design competition, and the winning design will be built and “used in public areas and legally permitted parking spaces throughout downtown San Diego to add a new and unique gathering space for the community,” according to the San Diego Source.
A mobile parklet “is a small, innovative park that can move from location to location.” The winning team is chosen by facebook voters and will receive $5,000.
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Premises Liability: Everything You Need to Know
September 09, 2019 —
Bremer Whyte Brown & O'Meara LLPPremises liability is a relatively simple concept: landowners, lessors, and occupiers of land must keep their property safe and avoid causing harm to others. Premises liability lawsuits can arise from an array of circumstances including a slip and fall by an individual, a construction site accident, or an accident at occurs on a residential or commercial property. Under California law, everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property. California Civil Code 1714 (a). When an individual is injured on a property, the person harmed generally brings a lawsuit based upon a theory of negligence. Under this theory, an injured Plaintiff must prove the following:
- The defendant owned, leased, occupied, or controlled the property;
- The defendant was negligent in the use or maintenance of the property;
- The plaintiff was harmed; and
- The defendant’s negligence was a substantial factor in causing the plaintiff’s harm.
California Civil Jury Instructions 1000.
When evaluating a negligence claim under the theory of premises liability, there are several key elements for both a Plaintiff and a Defendant to consider. First, the landowner, occupier, or lessor of a premises is under a duty to exercise ordinary care in the use or maintenance of the premises to avoid exposing persons to an unreasonable risk of harm. Rowland v. Christian, 69 Cal. 2d 108 (1968). Essentially, a landowner or occupier is required to take steps to keep individuals on the property free from harm.
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