When is an Indemnification Provision Unenforceable?
September 06, 2021 —
Christopher G. Hill - Construction Law MusingsVirginia Code Sec. 11-4.1 makes indemnification provisions in construction contracts that are so broad as to indemnify the indemnitee from its own negligence unenforceable. Of course, this begs the question as to what language of indemnification provisions make them unenforceable.
A case from the City of Chesapeake Virginia Circuit Court examined this question. In Wasa Props., LLC v. Chesapeake Bay Contrs., Inc., 103 Va. Cir 423 [unfortunately I can’t find a copy to which to link], Wasa Properties (“Wasa”) hired Chesapeake Bay Contractors (“CBC”) to perform utility work at Lake Thrasher in the Tidewater area of Virginia. Wasa then alleged that CBC breached the contract and caused over $400,000 in damages due to incorrectly installed water lines. Wasa used the following indemnification language as the basis for its suit:
To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and his agents and employees from and against all claims, damages, losses, and expenses, including but not limited to attorney’s fees arising out of or resulting from the performance of the Work.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Bert L. Howe & Associates Brings Professional Development Series to Their Houston Office
May 19, 2014 —
Beverley BevenFlorez-CDJ STAFFBHA’s Professional Development Series provides seminar attendees with a heightened level of knowledge and understanding on a wide range of subjects covering construction and construction defect litigation, tailored to the unique needs of local counsel and insureds.
The next seminar in this series, THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION, will be presented on June 13th.
This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.0 credit hours, of which 0.0 credit hours will apply to legal ethics/professional responsibility credit.
The seminar will be presented by Don MacGregor, general contractor and project manager, at BHA’s Houston office during the noontime hour, and luncheon will be provided. As with all BHA Professional Development activities, there is no cost for participation.
Water intrusion through doors, windows and roofing systems, as well as soil and foundation-related movement, and the resultant damage associated therewith, are the triggering effects for the vast majority of homeowner complaints today and serve as the basis for most residential construction defect litigation.
The graphic and animation-supported workshop/lecture activity will focus on the residential construction process, an examination of associated damages most often encountered when investigating construction defect claims, and the inter-relationships between the developer, general contractor, sub trades and design professionals.
Typical plaintiff homeowner/HOA expert allegations will be examined in connection with those building components most frequently associated with construction defect and claims litigation.
The workshop will examine:
* Typical construction materials, and terminology associated with residential construction
* The installation process and sequencing of major construction elements, including interrelationship with other building assemblies
* The parties (subcontractors) typically associated with major construction assemblies and components
* The various ASTM standard testing protocols utilized to field test buildings
* An analysis of exposure/allocation to responsible parties
Attendance at THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION seminar will provide the attendee with:
* A greater understanding of the terms and conditions encountered when dealing with common construction defect issues
* A greater understanding of contractual scopes of work encountered when reviewing construction contract documents
* The ability to identify, both quickly and accurately, potentially responsible parties
* An understanding of damages most often associated with construction defects, as well as a greater ability to identify conditions triggering coverage
* Assistance in the satisfaction of important continuing education requirements.
Course #: 901290467
Sponsor #: 14152
BHA Houston Office
800 Town & Country Blvd.
Suite 300
Houston, TX 77024
To register for the event, please email Don MacGregor at dmac@berthowe.com.
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A Court-Side Seat: May Brings Federal Appellate Courts Rulings and Executive Orders
June 29, 2020 —
Anthony B. Cavender - Gravel2GavelHere are a few interesting new rulings from the federal appellate courts.
COURT ORDERS
Like a Good Neighbor …? —
State of Maryland v. EPA
On May 19, 2020, the D.C. Circuit decided a Clean Air Act case involving the use of the “Good Neighbor Provision” of the Act, which is triggered when one state has a complaint about emissions generated in a neighboring upwind state that settle in the downwind state. Here, Maryland and Delaware filed petitions with EPA seeking relief from the impact of emissions from coal-fired power plants that allegedly affect their states’ air quality. EPA largely denied relief, and the court largely upheld the agency’s use and interpretation of the Good Neighbor Provision. The opinion is valuable because of its clear exposition of this complicated policy.
A Volatile Underground Issue —
Wayne Land and Mineral Group v. the Delaware River Basin Commission
Also on May 19, 2020, the U.S. Court of Appeals for the Third Circuit issued a ruling involving the Delaware River Basin Commission. Established in 1961, the Commission oversees and protects the water resources in the Basin. Not long ago, the Executive Director of the Commission, citing a rule of the Commission, imposed very strict limitations on fracking operations in the Basin. This decision has been very controversial with the Third Circuit opining that the Commission’s authority to regulate fracking operations—thought to be a province of state authority—was not clear-cut. In this case, three Pennsylvania state senators filed motions to intervene in the case, but the lower court rejected their request. The Third Circuit has directed the lower court to take another look at their standing to participate in this litigation. This is a volatile issue in Pennsylvania.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Former SNC-Lavalin CEO Now Set for Trial in Bribe Case
December 11, 2018 —
Debra K. Rubin - Engineering News-RecordPierre Duhaime, the former CEO of Canadian design-build giant SNC-Lavalin—who resigned from the firm in 2012 in the wake of a contracting bribery scandal in which he was arrested for his alleged role—is now set for a February trial start in Quebec Superior Court. The case relates to payoffs on one project, a multibillion-dollar Montreal hospital on which the firm led the public-private construction consortium.
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Debra K. Rubin, ENRMs. Rubin may be contacted at
rubind@enr.com
Dealing with Hazardous Substances on the Construction Site
July 10, 2018 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Construction Law Musings, we welcome Vickie Lane. Vickie is the primary point of contact for Business Development with HAZMAT Plans & Programs, a consulting and training firm that also works under the name of HP&P Safety. Vickie’s functions with HP&P include extensive pre-project research and support though estimating, planning and cost administration. Vickie attended Ohio State University and now enjoys her role as a first time grandmother and spending free time up in the Colorado Rocky Mountains. Vickie can be reached at vlane@hppsafety.com or on Twitter @HAZMATPlans and @hpandpsafety.
Most of us perceive hazards on a construction site to be those that can be readily visualized or perhaps easily imagined, like trench cave-ins or falls from heights. These are the obvious, but what about the nocuous, microscopic hazards that can’t be seen by the human eye, but can destroy the health of your workers? Welcome to the world of hazardous materials.
The inherent danger associated with hazardous substances is workers might not be not aware of exposure. Think of a snake in the dark scenario. If it is a rattlesnake, you have warning before the bite. A cobra on the other hand gives no such warning and the bite can be fatal. So it can be with hazardous and toxic substances.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
COVID-19 Response: California Occupational Safety and Health Standards Board Implements Sweeping New Regulations to Prevent COVID-19 in the Workplace
December 14, 2020 —
Peter Shapiro, Drake Mirsch & Jade McKenzie - Lewis BrisboisOn November 19, 2020, the California Occupational Safety and Health Standards Board (OSHSB) proposed sweeping and significant new emergency standards to reduce employee exposure to COVID-19. These standards have been accepted by the Office of Administrative Law and are effective as of November 30, 2020. Accordingly, it is critical that employers familiarize themselves with these new requirements and begin to implement these standards as quickly as possible.
The standards include COVID-19 prevention in the workplace, multiple COVID-19 infections and outbreaks in the workplace, “major” COVID-19 outbreaks in the workplace, prevention in employer provided housing, and prevention in employer-provided transportation to and from work. They apply to all California employers and places of employment, except places with one employee who does not have contact with others, employees working from home, or employees in specified health care facilities, services or operations when covered by section 5199.
COVID-19 Prevention Program
Employers are required to establish, implement, and maintain an “effective” written COVID-19 Prevention Program. Under the Program, an employer is responsible for developing a system for communicating about COVID-19, identifying and evaluating COVID-19 hazards, investigating and responding to COVID-19 cases, correcting COVID-19 hazards, providing training and instructions to employees regarding COVID-19, ensuring all employees are physically distanced, providing face coverings, implementing policies regarding personal protective equipment and recordkeeping, ensuring COVID-19 cases are excluded from the workplace, and prohibiting symptomatic employees from returning to work unless certain requirements are met.
Reprinted courtesy of
Peter Shapiro, Lewis Brisbois,
Drake Mirsch, Lewis Brisbois and
Jade McKenzie, Lewis Brisbois
Mr. Shapiro may be contacted at Peter.Shapiro@lewisbrisbois.com
Mr. Mirsch may be contacted at Drake.Mirsch@lewisbrisbois.com
Ms. McKenzie may be contacted at Jade.Mckenzie@lewisbrisbois.com
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Florida SB 2022-736: Construction Defect Claims
February 07, 2022 —
Kelly A. Johnson - Saxe Doernberger & Vita, P.C.*Special thank you to SDV Law Clerk Iliriana Fteja for contributing to this article.
A new bill (SB 2022-736) was recently introduced to the Florida Senate. The proposed amendments to the statutes of limitations and repose could significantly impact construction defect claims by effectively creating additional exposure to contractors and insurance carriers.
The proposed bill requires all actions founded on the design, planning, or construction of an improvement to real property to be commenced within four years after the time to commence an action begins. Under the proposed amendment, the time to commence an action runs from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and their employer. This provision would effectively alter the time to commence an action to whichever triggering event is earliest instead of the latest triggering event per the previous statute.
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Kelly A. Johnson, Saxe Doernberger & Vita, P.C.Ms. Johnson may be contacted at
KJohnson@sdvlaw.com
Modified Plan Unveiled for Chicago's Sixth-Tallest Tower
February 15, 2018 —
Jeff Yoders – ENRThe Chicago Plan Commission on Jan. 18 approved a $700-million development that, as presented, would include the city’s sixth-tallest building.
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Jeff Yoders, Engineering News-RecordMr. Yoders may be contacted at
yodersj@enr.com
