Corps of Engineers to Prepare EIS for Permit to Construct Power Lines Over Historic James River
May 01, 2019 —
Anthony B. Cavender - Gravel2GavelOn March 1, the U.S. Court of Appeals for the District of Columbia decided National Parks Conservation Assoc. v. Todd T. Simonite, Lieutenant General, et al. The case involves an application to the U.S. Army Corps of Engineers (Corps) for a construction permit to build electric power lines over the “historic James River, from whose waters Captain John Smith explored the New World.”
The Corps concluded after reviewing the thousands of comments submitted to it in connection with this application, and after considering the views of several government agencies and conservation groups, that an Environment Impact Statement (EIS) was not required, and that its Environmental Assessment assured the Corps that the project would not result is significant environmental impacts. The Court of Appeals has concluded that, based on this evidence, the Corps’ refusal to prepare an EIS thoroughly discussing all these points was arbitrary and capricious. The Corps has been ordered to prepare the EIS and to take special note of its obligations under the National Environmental Protection Act (NEPA), the Clean Water Act (CWA) and its obligations under the National Historic Preservation Act.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Call to Conserve Power Raises Questions About Texas Grid Reliability
July 05, 2021 —
Autumn Cafiero Giusti - Engineering News-RecordWith the days getting hotter and tropical activity picking up in the Gulf of Mexico, concerns are mounting about the reliability of the Texas power supply after the state’s main grid operator asked residents to go on a five-day energy conservation diet.
Reprinted courtesy of
Autumn Cafiero Giusti, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Construction Company Head Pleads Guilty to Insurance and Tax Fraud
December 20, 2012 —
CDJ STAFFThe former head of Orients Construction Company and of Melrose Construciton Company, Herlindo Garcia-Merlos, has entered a guilty plea to charges that the gave false informoation to his insurer, New Jersey Manufacturers Insurance Group, for more than three years in order to lower his workers compensation payments. Mr. Garcia-Merlos was able to underpay by more than $315,000 as a result of this deception.
Mr. Garcia-Merlos additionally failed to file tax returns for his companies and underreported his wages on his own tax returns. The State of New Jersey is seeking an eight-year prison term and restitution of more than $400,000.
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Newmeyer Dillion Attorneys Named to 2022 Super Lawyers and Rising Stars Lists
July 11, 2022 —
Newmeyer DillionNEWPORT BEACH, Calif. – July 6, 2022 – Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that partner James Ficenec has been selected to the 2022 Norther California Super Lawyers list. Additionally, partner Tara Dudum and associates Brandon Clouse and Jacqueline McCalla have been selected to the 2022 Northern California Rising Stars list by Super Lawyers. Each year, no more than 5 percent and 2.5 percent, respectively, of the lawyers in the state are selected to receive this honor. The attorneys will be recognized in the July 2022 issues of Northern California Super Lawyers Magazine, San Francisco Magazine and Sactown Magazine.
James Ficenec is a partner in the Walnut Creek office. With incredible business acumen, Jim has counseled and defended clients across a variety of industries by advocating for their rights and legal protections as both a transactional attorney and business litigator.
Tara Dudum is a partner in the Walnut Creek Office. Tara's practice focuses primarily on business and employment law and her clients span across industries, including retail, e-commerce, real estate, manufacturing, hospitality, and beyond. She often acts as outside counsel for clients, providing day-to-day legal advice to owners, executives, supervisors, and human resource professionals.
Brandon Clouse is an associate in the Walnut Creek Office. As a part of the firm's construction and real estate litigation group, Brandon litigates disputes on behalf of clients concerning construction and real estate matters.
Jacqueline McCalla is an associate in the Walnut Creek Office. Jacqueline takes pride in assisting local businesses and entrepreneurs as well as Fortune 500 companies with all aspects of litigation, from inception through trial. Jacqueline's practice ranges across business, construction defect, employment and insurance disputes.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process evaluates candidates on 12 indicators of peer recognition and professional achievement, resulting in a comprehensive, credible and diverse listing of exceptional attorneys. The Rising Stars list is developed using the same selection process except candidates must be either 40 years old or younger, or have been in practice for 10 years or less.
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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Select the Best Contract Model to Mitigate Risk and Achieve Energy Project Success
October 17, 2022 —
Gregory S. Seador - Construction ExecutivePower and energy projects are inherently complex and risky. Therefore, management and proper allocation of risk among project participants are essential to success.
Careful drafting of the engineering, procurement and construction (EPC) contract is a critical first step in managing risk. The standard contract format used for power and energy construction projects is the EPC contract. In its traditional form, the EPC contract makes the EPC contractor responsible for the entire project, including engineering (design of the power plant), procurement (purchase, installation and performance of all equipment) and construction (construction of the plant).
EPC contracts can, however, employ different contract models and pricing structures, each of which carries differing levels of risk for project participants. Selecting the appropriate contract model and pricing structure to meet the unique needs of the project is important.
Reprinted courtesy of
Gregory S. Seador, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Seader may be contacted at
seador@slslaw.com
Pennsylvania’s Supreme Court Clarifies Pennsylvania’s Strict Liability Standard
January 14, 2015 —
William Doerler and Edward Jaeger, Jr. – White and Williams LLPIn Tincher v. Omega Flex, Inc., -- A.3d --, 2014 WL 6474923 (Pa. Nov. 19, 2014), the Supreme Court of Pennsylvania discussed the Commonwealth of Pennsylvania’s products liability law and, overturning prior precedent, clarified the law. In particular, the Court, overturned Azzarello v. Black Brothers Company, 480 Pa. 547, 391 A.2d 1020 (1978), clarified the role of the judge and the jury in products liability cases and settled the question of whether Pennsylvania would adopt the Restatement (Third) of Torts: Products Liability §§ 1, et. seq. (Third Restatement) as the standard for deciding Pennsylvania products liability cases. The Tincher decision makes clear that Pennsylvania will continue to apply § 402A of the Restatement (Second) of Torts (Second Restatement) in products liability cases and that jurors, not the court, will decide the question of whether a product is in a defective condition. Plaintiffs may prove that a product is defective using either the consumer expectations test or the risk-utility test.
Background
The Tincher case arose out a fire that occurred at the home of Terrance and Judith Tincher on June 20, 2007. The Tinchers alleged that the fire started when a lightning strike near their home caused a small puncture in corrugated steel tubing (CSST) carrying natural gas to a fireplace located in their home. The defendant, Omega Flex, Inc. (Omega Flex) manufactured the CSST.
Reprinted courtesy of
William Doerler, White and Willams LLP and
Edward Jaeger, Jr., White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com; Mr. Jaeger may be contacted at jaegere@whiteandwilliams.com
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California Joins the Majority of States in Modifying Its Survival Action Statute To Now Permit Recovery for Pain, Suffering And Disfigurement
January 03, 2022 —
Krsto Mijanovic & Elizabeth D. Rhodes - Haight Brown & BonesteelOn January 1, 2022, California Code of Civil Procedure (“CCP”)Section 377.30 et seq., as amended by Senate Bill 447, otherwise known as the “survival action” statute1, goes into effect. On that date, all plaintiffs filing new civil cases filed on or after January 1, 2022, and before January 1, 2026, and plaintiffs in any action or proceeding granted trial preference pursuant to CCP Section 36 before January 1, 2022, will be expressly allowed to recover damages for a decedent’s pain, suffering, or disfigurement in a survival action.2 This is a significant change in California law. In that regard, California is now the 46th state to permit this form of recovery.
As reported in the Legislative Counsel’s Digest3, Consumer Attorneys of California and Consumer Federation of California, which co-sponsored Senate Bill 447, opined to the Legislature that the prior law provided a “death discount” to defendants which incentivized bad faith delays in resolution, and caused unnecessary congestion of the already overburdened court system. These argued issues will be vetted by the Legislature using the four-year reporting requirement that is also part of the amendment to the statute, requiring plaintiffs who recover this newly permitted category of damages to report the valuation and details of the case to the Judicial Council within 60 days of the judgment or other operative court document being entered in the court’s docket.4 The amendment will be evaluated by the Legislature for amendment or extension on or before January 1, 2026.
Reprinted courtesy of
Krsto Mijanovic, Haight Brown & Bonesteel and
Elizabeth D. Rhodes, Haight Brown & Bonesteel
Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com
Ms. Rhodes may be contacted at erhodes@hbblaw.com
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Tenants Who Negligently Cause Fires in Florida Beware: You May Be Liable to the Landlord’s Insurer
May 13, 2019 —
Rahul Gogineni - The Subrogation StrategistIn Zurich Am. Ins. Co. v. Puccini, LLC, 2019 Fla. App. LEXIS 1487, 44 Fla. L. Weekly D 383, Florida’s Third District Court of Appeals considered whether a landlord’s carrier, Zurich American Insurance Company (Zurich), was precluded from pursuing a subrogation claim against the landlord’s tenant, Puccini, LLC (Puccini), for fire-related damages. After the fire, Zurich paid its insured, Lincoln-Drexel Waserstein, Ltd. (Lincoln), over $2.1 million. Zurich then proceeded with an action against Puccini. Puccini filed for summary judgment arguing that it was an additional insured under the Zurich policy. The trial court agreed with Puccini and dismissed the action. Zurich then appealed the case to Florida’s Third District Court of Appeals. Finding that the lease contemplated both liability on the part of the tenant and indemnification in favor of the landlord, the court held that the tenant was not an implied co-insured under Zurich’s policy. Thus, the court allowed Zurich’s subrogation action.
The Sutton Doctrine Extension of the Anti-Subrogation Rule
In the United States, most states have adopted an anti-subrogation rule either by statute or through common law. Under an anti-subrogation rule, an insurer may not pursue its insured for monies paid to the insured. While some states limit their anti-subrogation rule to apply only to the named insured, other states have expanded the rule to include parties listed as additional insureds, and even, in some instances, implied insureds (those parties not specifically listed, but still considered an insured under the applicable policy).
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Rahul Gogineni, White and Williams LLPMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
