New Executive Orders Expedite the Need for Contractors to Go Green
August 22, 2022 —
Vince Calio - Construction ExecutiveThe importance of going green just became even more crucial for small construction companies, as President Joe Biden signed three executive orders on June 6, 2022, aimed at boosting clean energy construction projects and the use of domestically manufactured clean energy technology.
Specifically, the orders require the U.S. Department of Energy to deploy the use of the Defense Production Act of 1950 to expand American manufacturing of solar panel parts, environmentally friendly building insulation, heat pumps, equipment for making clean power-generating fuels and critical power grid infrastructure. Federal construction contracts will also require local contractors to use eco-friendly materials.
According to an announcement from the White House, the order will encourage the use of project labor agreements that offer wages “above and beyond the prevailing rate and include local hire provisions.” The order will also encourage clean construction projects in low-income areas burdened by legacy pollution.
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Vince Calio, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Court Rules on a Long List of Motions in Illinois National Insurance Co v Nordic PCL
May 10, 2012 —
CDJ STAFFThe case Illinois National Insurance Co. v Nordic PCL, et al. “involves a dispute about whether insurance benefits are available to a general contractor who built structures that allegedly have construction defects. Plaintiffs Illinois National Insurance Company (‘Illinois National’) and National Union Fire Insurance Company of Pittsburgh, PA (‘National Union’) (collectively, the ‘Insurers’), commenced this action for declaratory relief against Defendant Nordic PCL Construction, Inc., f/k/a Nordic Construction, Ltd. ("Nordic"), on August 23, 2011.”
The court was asked to rule on a long list of motions: “Counterclaim Defendants’ Request for Judicial Notice in Support of Their (1) Motion to Dismiss the Counterclaim and (2) Motion to Strike Portions of the Counterclaim, ECF No. 16 (‘Request for Judicial Notice’); Counterclaim Defendants’ Motion to Dismiss Counterclaim Filed October 24, 2011, ECF No. 14 (‘Motion to Dismiss Counterclaim’); Counterclaim Defendants’ Motion to Strike Portions of the Counterclaim Filed October 24, 2011, ECF No. 15 (‘Motion to Strike’); Third-Party Defendant Marsh USA, Inc.’s Motion to Dismiss or, in the Alternative, Stay Proceedings in Favor of Pending State Action, ECF No. 33 (‘Marsh’s Motion To Dismiss Or Stay’); Defendant and Third-Party Plaintiff Nordic PCL Construction, Inc., f/k/a Nordic Construction Ltd.’s Substantive Joinder to Third-Party Defendant Marsh USA Inc.’s Motion to Dismiss or, in the Alternative, Stay Proceedings in Favor of Pending State Action, ECF No. 36 (‘Nordic’s Joinder’); and Third-Party Defendant Marsh USA, Inc.’s Motion for Judgment on the Pleadings on Counts V and VI of Defendant/Third-Party Plaintiff Nordic PCL Construction, Inc.’s Third-Party Complaint, ECF No. 29 (‘Marsh’s Motion for Judgment on the Pleadings’).”
In result, the court reached the following decisions: “The court GRANTS IN RELEVANT PART the Insurers’ Request for Judicial Notice to the extent it covers matters relevant to these motions; GRANTS IN PART the Insurers’ Motion to Dismiss Counterclaim, but gives Nordic leave to amend the Counterclaim in certain respects; DENIES the Insurers’ Motion to Strike; DENIES Marsh’s Motion To Dismiss Or Stay and Nordic’s Joinder; and GRANTS Marsh’s Motion for Judgment on the Pleadings.”
The court provides a bit of background on the case: “This action arises out of alleged construction defects involving two projects on which Nordic acted as the general contractor. Nordic is a defendant in a pending state court action with respect to one of the projects and says it spent more than $400,000 on repairs with respect to the other project. Nordic tendered the defense of the pending state court action to the Insurers and sought reimbursement of the cost of repairs already performed. The Insurers responded by filing this action to determine their rights under the insurance policies issued to Nordic.”
Furthermore, the court presented a brief procedural history: “The Insurers commenced this declaratory action in this court on August 23, 2011. The Complaint asserts two claims, one seeking a declaration that the Insurers have no duty to provide a defense or indemnification regarding the Safeway Action, the other seeking such a declaration regarding the Moanalua Claims. Along with its Answer, Nordic filed a Counterclaim against the Insurers. The Counterclaim asserts breach of contract, breach of the covenant of good faith and fair dealing, misrepresentations and omissions of material fact, and bad faith, and seeks declaratory relief against the Insurers.”
The procedural history continues: “Nordic also filed a Third-Party Complaint against Marsh, the broker that had procured the Policies from the Insurers for Nordic. Nordic alleges that it reasonably believed that the Policies would provide completed operations insurance coverage for the types of construction defects alleged in the Safeway Action and Moanalua Claims. The Third-Party Complaint asserts breach of contract, negligence, promissory estoppel, breach of fiduciary duties, implied indemnity, and contribution and equitable subrogation.”
In conclusion, “The court GRANTS IN RELEVANT PART the Insurers’ Request for Judicial Notice. With regard to the Insurers’ Motion to Dismiss Counterclaim, the court GRANTS the motion as to Count I (breach of contract), Count II (duty of good faith and fair dealing), Count III (fraudulent and negligent misrepresentation), the portion of Count IV (bad faith) premised on fraud, and Count IV (declaratory relief). The court DENIES the motion as to Count IV (bad faith) that is not premised on fraud. Except with respect to the "occurrence" issue, which the court disposes of here on the merits, and Count V, which concerns only a form of relief, Nordic is given leave to amend its Counterclaim within three weeks of the date of this order. The court DENIES the Insurers’ Motion to Strike, DENIES Marsh’s Motion to Dismiss or Stay and Nordic’s Joinder, and GRANTS Marsh’s Motion for Judgment on the Pleadings with respect to Counts V and VI of the Third-Party Complaint.”
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Blurred Lines: New York Supreme Court Clarifies Scope of Privileged Documents in Connection with Pre-Denial Communications Prepared by Insurer's Coverage Counsel
September 17, 2015 —
Greg Steinberg – White and Williams LLPIn a recent decision, the New York Supreme Court clarified the scope of privileged documents with respect to communications prepared by an insurer’s counsel prior to issuing a denial of coverage letter. The coverage litigation at issue arose out of MF Global Inc.’s claims under fidelity bonds for losses incurred as a result of large trades made by former MF Global employee, Evan Dooley. The trades cost MF Global, Dooley’s former clearing firm, $141 million after it had to reimburse the CME Group, Inc. futures clearinghouse that handled the trade. The insurers that issued the fidelity bonds contested coverage and sued MF Global in 2009.
The opinion underscores the fact that there is no “bright line” rule in New York with respect to disclosure of communications in the insurance context prior to the issuance of a coverage determination – the disclosure requirement will instead turn on what’s actually privileged. In addition, while retention of counsel may not serve as an automatic shield for all documents prepared prior to the coverage decision, insurers will not be required to disclose, among other things, communications which include an “indicia of the provision of legal services.”
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Greg Steinberg, White and Williams LLPMr. Steinberg may be contacted at
steinbergg@whiteandwilliams.com
“Time Is Money!” In Construction and This Is Why There Is a Liquidated Damages Provision
February 01, 2022 —
David Adelstein - Florida Construction Legal UpdatesIn construction, the adage “Time is Money!” rings true for all parties involved on a project. This includes an owner of a project that wants a project completed on time, i.e., by a substantial completion date. While substantial completion is often defined as when an owner can use a project for its intended purpose, this intended purpose typically equates to beneficial occupancy (in new construction) and other factors as identified in the contract.
The best mechanism for an owner to reinforce time and the substantial completion date is through a liquidated damages provision (also known as an LD provision) that includes a daily monetary rate for each day of delay to the substantial completion date.
A liquidated damages provision is not designed, and should NEVER be designed, to serve as a penalty because then it would be unenforceable. Instead, it should be designed to reasonably compensate an owner for delay to the substantial completion date that cannot be ascertained with any reasonable degree of certainty at the time the contract is being negotiated and executed. (Liquidated damages are MUCH easier to prove than actual damages an owner may incur down the road.) As an owner, you don’t really want to assess liquidated damages because that means the project is not substantially completed on time. And, in reality, a timely completed and performing project should always be better and more profitable than a late and underperforming project. However, without the liquidated damages provision, there isn’t a great way to hold a contractor’s feet to the fire with respect to the substantial completion date.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Excess Policy Triggered Once Retention Paid, Even if Loss Not Covered By Excess
July 23, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe Fifth Circuit determined that the Umbrella policies took effect once the primary insurance was exhausted by claims not covered by the Umbrella policies. Indem. Ins. Co. of N. Am. v. W&T Offshore, 2014 U.S. App. LEXIS 11775 (5th Cir. June 23, 2014).
W&T had primary and Umbrella/Excess coverage to protect its offshore oil rigs from hurricane damage. The primary policies covered property damage and third party claims. The Umbrella policies only covered third-party claims. All policies covered Removal of Debris (ROD).
In September 2008, Hurricane Ike caused damage to 150 offshore platforms in which W&T had an interest. W&T submitted over $150 million in claims for property damage to the primary carriers. The primary policies had a $10 million self-insured retention (SIR). The primary policies covered $150 million in coverage over the $10 million SIR. Anticipating that W&T would submit all of its ROD claims, which were estimated to exceed $50 million, the Umbrella carriers filed suit for a declaratory judgment.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Business Interruption Claim Granted in Part, Denied in Part
February 16, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe court granted portions of the business interruption claim, while denying other portions. Phoenix Ins. Co. v. Infogroup, Inc., 2015 U.S. Dist. LEXIS 162810 (S. D. Iowa Nov. 30, 2015).
Phoenix insured Infogroup's business buildings and personal business property, including data and data processing equipment. In late May 2011, warnings were issued of possible flooding from the Missouri River. On June 1, 2011, Infogroup moved and relocated its business operations and data centers away from the river and did not intend to return to the facilities. On July 19, 2011, Phoenix advanced $500,000 to Infogroup for anticipated claims under the policy. On August 22, 2011, heavy rain left surface water in the parking lot at Infogroup's facilities. Infogroup claimed that it suffered minor property damage during July and August, 2011, including damage to an uninterruptable power source and damage to a server.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Construction Executives Should Be Dusting Off Employee Handbooks
January 03, 2022 —
Adam E. Richards & Andrew Zelman - Construction ExecutiveFor most businesses—large and small—the importance of maintaining and updating an employee handbook that sets forth a uniform set of company policies cannot be understated. The construction industry, which is seemingly plagued by a never-ending labor shortage, necessitating construction executives having to grapple with pandemic-related workplace issues and challenges, is not exempt from the benefits of a thorough, well-formed handbook.
The employee handbook should be a window into the soul of a business. Even though annual updates are appropriate, they seldom occur. To say a lot has happened over the last few years barely begins to scratch the surface. Particularly, during the COVID-19 pandemic, construction executives and human resources professionals within construction-related businesses throughout the country have been forced to evaluate business models, values and cultures in furtherance of deciding where and how to evolve.
Once those decisions are made, the employee handbook is deserving of time and attention. Reflecting the evolution of your construction business is only part of the overall plan; however, demonstrating compliance with new laws is equally important.
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Adam E. Richards & Andrew Zelman, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Newmeyer Dillion Named 2022 Best Law Firm in Multiple Practice Areas By U.S. News-Best Lawyers
November 08, 2021 —
Newmeyer DillionNEWPORT BEACH, Calif. – November 5, 2021 – Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that U.S. News-Best Lawyers® has recognized the firm in its 2022 "Best Law Firms" rankings, in six practice areas earning the highest ranking possible - Tier 1 in the Orange County Metro area. The practices recognized include:
Commercial Litigation
Insurance Law
Real Estate Law
Litigation - Real Estate
Construction Law
Litigation – Construction
Additionally, the firm has been recognized as Tier 2 in Employment Law - Management and Tier 3 in Litigation - Insurance.
"Our firm was built on the culture of excellent personalized service and achieving the best results possible. Knowing that our clients and peers continue to value the offerings we provide showcases our ability to deliver business-oriented solutions across a wide range of practice areas."
Firms included in the 2022 "Best Law Firms" list have been recognized by their clients and peers for their professional excellence. Firms achieving a Tier 1 ranking have consistently demonstrated a unique combination of quality law practice and breadth of legal expertise.
To be eligible for the "Best Law Firms" ranking, a firm must have at least one attorney recognized in the current edition of The Best Lawyers in America for a specific practice area. Best Lawyers recognizes the top 4 percent of practicing attorneys in the U.S., selected through exhaustive peer-review surveys in which leading lawyers confidentially evaluate their professional peers.
About Newmeyer Dillion
For over 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 60 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's operations, growth, and profits. 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 Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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