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DIRECTORY AND CAPABILITIES

Overview of New Mexico Construction Law

June 25, 2019 — Walter F. Crowson - Snell & Wilmer Under Construction Blog
We’ve seen an uptick in out-of-state companies working on construction projects in New Mexico. The following is an overview of some of the nuances of New Mexico construction law about which companies may want to be aware. Construction Contract Issues Limitation of Liability Clauses are usually Enforceable, but Anti-Indemnity Clauses Are Not New Mexico courts have enforced limitation of liability clauses included in construction contracts. See Fort Knox Self Storage, Inc. v. W. Techs., Inc., 140 N.M. 233, 237 (N.M. Ct. App 2006). New Mexico law recognizes the difference between contracts that insulate a party from any and all liability and those that simply limit liability. Fort Knox Self Storage, Inc., 140 N.M. 233 at 237. An exculpatory clause immunizes a party from liability, whereas a limitation of liability clause merely curtails liability. Id. A limitation of liability clause has been held not to violate New Mexico public policy because the party “still bears substantial responsibility for its actions.” Id.; see also Cowan v. D'Angelico, 2010 WL 11493789, *6 (D. N.M. Apr. 26, 2010). Read the court decision
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Reprinted courtesy of Walker F. Crowson, Snell & Wilmer
Mr. Crowson may be contacted at wcrowson@swlaw.com

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Obama Says Keystone Decision May Be Announced in Weeks or Months

March 05, 2015 — Justin Sink – Bloomberg
(Bloomberg) -- President Barack Obama said a decision on whether to approve the Keystone XL pipeline is possible in weeks or months. The president told Reuters in an interview Monday that the decision definitely “will happen before the end of my administration.” Asked to be specific, he said, “Weeks or months.” Read the court decision
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Reprinted courtesy of Justin Sink, Bloomberg
Mr. Sink may be contacted at jsink1@bloomberg.net

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BOO! Running From Chainsaw Wielding Actor then Falling is an Inherent Risk of a Haunted Attraction

December 10, 2015 — Laura C. Williams, R. Bryan Martin & Lawrence S. Zuckerman – Haight Brown & Bonesteel LLP
In Griffin v. The Haunted Hotel, Inc. (filed 10/23/15; certified for publication 11/20/15), the California Court of Appeal, Fourth Appellate District, affirmed summary judgment in favor of the defendant haunted attraction operator holding that the risk of a patron being frightened, then running away and falling is inherent in the fundamental nature of a haunted house attraction. The Court further determined there was no evidence the operator acted recklessly or unreasonably increased such risks beyond those inherent in the attraction. In October 2011, Plaintiff attended The Haunted Trail attraction, which featured actors in costumes jumping out holding prop weapons to scare patrons walking along a trail through Balboa Park. The Haunted Trail also employed a scare tactic known as the “Carrie” effect, in which the patrons walk through a fake exit and suddenly a chainsaw wielding actor appears and charges at the patrons for one final jolting scare. It was during this final scene of The Haunted Trail’s “Carrie” effect that Griffin became frightened by an actor brandishing a chainsaw causing him to suddenly run away in fear. As he was fleeing, Griffin fell and injured his wrist. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Laura C. Williams, R. Bryan Martin and Lawrence S. Zuckerman Ms. Williams may be contacted at lwilliams@hbblaw.com Mr. Martin may be contacted at bmartin@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Rio Olympics Work Was a Mess and Then Something Curious Happened

April 06, 2016 — Jonathan Levin, Tariq Panja & David Biller – Bloomberg
In early 2014, a senior Olympic Committee official returned from a trip to Rio de Janeiro and declared Brazil’s preparations for the Summer Games to be the worst he’d ever seen. In the two years since, a crippling recession set in, dozens of construction executives were ensnared in a nationwide corruption scandal and the president has been pushed to the brink of impeachment. And the preparations? They’re basically fine now, actually. In what is emerging as a rare bright spot in a country buffeted by crisis on all sides, the organizing committee is saying that more than 95 percent of the venues are complete some four months ahead of the opening ceremony and, what’s more, data shows spending has largely remained under control. Reprinted courtesy of Bloomberg reporters Jonathan Levin, Tariq Pania and David Biller Read the court decision
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“Genuine” Issue of “Material” Fact and Summary Judgments

December 18, 2022 — David Adelstein - Florida Construction Legal Updates
This is short article on summary judgments. A motion for summary judgment, as you may already know, is a procedural vehicle to try to dispose of issues or claims in a lawsuit, either partially or fully. The objective is that the moving party claims that there is no genuine issue of material fact and that they are entitled to a judgment (partially or finally) as a matter of law. See Florida Rule of Civil Procedure 1.510. In May of 2021, Florida adopted the federal summary judgment standard which theoretically means trial courts should grant more summary judgments, not less, based on the more rigorous standard. There have been many articles that discuss Florida’s new summary judgment standard including how the standard used to be versus how it is supposed to be now that it is modeled after the federal standard. That isn’t the point of this posting. (Here is an article published in the Florida Bar Journal that provides a primer on summary judgments in case you are interested.) The point of this posting is to understand the words “genuine” and “material” as underlined above when moving for or defending against a summary judgment. These words have important meaning in the context of motions for summary judgment. In other words, what is a genuine issue of material fact? This is a question that should not be overlooked because these are the facts you want to focus on and frame your arguments on when moving for or defending against a summary judgment. Notably, these are also the facts you want to introduce and emphasize at trial. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Accident/Occurrence Requirement Does not Preclude Coverage for Vicarious Liability or Negligent Supervision

June 06, 2018 — Christopher Kendrick & Valerie A. Moore - Haight Brown & Bonesteel, LLP
In Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co., Inc. (No. S236765, filed 6/4/18) (L&M), the California Supreme Court ruled that the liability insurance requirement that injury be caused by an “occurrence,” defined as an “accident,” does not preclude coverage of an employer’s independent tort liability for injury deliberately caused by its employee. In L&M, Liberty insured a construction company that contracted to manage a construction project at a middle school in San Bernardino, California. A 13-year-old student subsequently sued the company in state court, alleging that she had been sexually molested by a company employee, Hecht. Among others, she alleged a cause of action for negligent hiring, retention and supervision of the employee. The construction company tendered to Liberty, which defended the employer under a reservation of rights while seeking declaratory relief in federal court. The district court granted summary judgment for Liberty, ruling that the injury was not caused by an “occurrence.” On appeal, the 9th Circuit Court of Appeals certified the question to the California Supreme Court as a matter of state law. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Double-Wide World Cup Seats Available to 6-Foot, 221-Pound Fans

June 18, 2014 — Tariq Panja – Bloomberg
Some of the double-wide seats that Brazilian law guarantees for obese World Cup fans are being occupied by people who don’t need that much extra space, and FIFA said it can’t do anything to prevent that from happening. Soccer’s governing body said it is using World Health Organization and official Brazil Ministry of Health guidelines on who can be classified as obese. Those with a body mass index, or BMI, of 30 or higher can purchase a special-needs ticket at half price and get one of the special seats. Someone who is 6 feet tall and weighs 221 pounds (1.8 meters, 100 kilograms) would qualify. “There are cases where a person doesn’t look obese but meets the guidelines,” Federico Addiechi, head of corporate hospitality, said after a briefing yesterday at Rio de Janeiro’s Maracana stadium, where the World Cup’s July 13 final will be held. “We cannot decide you are not obese if the law says you are obese.” Read the court decision
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Reprinted courtesy of Tariq Panja, Bloomberg
Mr. Panja may be contacted at tpanja@bloomberg.net

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Construction Contract Basics: Attorney Fee Provisions

November 13, 2023 — Christopher G. Hill - Construction Law Musings
I have discussed the need for attorney fee provisions in your construction contracts in prior posts here at Construction Law Musings, but thought it merited a restatement of the reasons for the inclusion of such fee provisions (and changing of such provisions when presented) here with the second of my construction contract basics posts. Why would you want such a provision? The answer is that without it, or a statute specifically allowing for such fees, a Virginia court will not award your attorney fees without such a provision. Virginia, and a lot of other states, follow the so-called “American Rule” when it comes to attorney fees and costs. In short, that rule states that the parties to litigation pay their own way unless they agree otherwise. While it may seem unfair to make a successful litigant pay for the privilege of being right, that is the rule in Virginia. Throw in the fact that Virginia courts strictly construe construction contracts and voila we have a situation where without a provision in the contract stating that one party or both will be able to collect attorney fees should that contractor or subcontractor prevail, a construction professional that gets sued (whether rightly or wrongly) will be left with a hefty attorney fees bill and no way to recoup those fees through the courts or any other method. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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