Faulty Workmanship an Occurrence in Iowa – as Long as Other Property Damage is Involved
November 30, 2016 —
Austin D. Moody – Saxe Doernberger & Vita, P.C.The Eighth Circuit recently weighed in on one of the more contentious issues in insurance coverage litigation: is faulty workmanship an occurrence? In Decker Plastics Inc. v. West Bend Mut. Ins. Co., the Eighth Circuit ruled that, under Iowa law, faulty workmanship is an occurrence – as long as it leads to other property damage.
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Austin D. Moody, Saxe Doernberger & Vita, P.C.Mr. Moody may be contacted at
adm@sdvlaw.com
San Diego Developer Strikes Out on “Disguised Taking” Claim
October 26, 2017 —
Michael C. Parme – Haight Brown & Bonesteel LLPIn Dryden Oaks, LLC v. San Diego County Regional Airport Authority et al.(D068161, filed 9/26/17, publication order 10/19/17), the California Court of Appeal, Fourth Appellate District held that the County of San Diego (County) and the San Diego Regional Airport Authority (Authority) were entitled to summary judgment on a developer’s “disguised taking” theory of inverse condemnation.
In 2001, the developer purchased two large lots (designated Lot 24 and Lot 25) adjacent to the end of a runway at the Palomar Airport in Carlsbad. Plaintiff obtained the necessary permits from the City of Carlsbad and successfully completed construction of an industrial building on Lot 24 in 2005. However, the plaintiff never began development of Lot 25 and the building permit for the property expired in 2012. The developer was then unable to renew the building permit because the Authority had adopted the Airport Land Use Compatibility Plan (ALUCP) in the interim period, which reclassified the Lots as part of a Runway Protection Zone (RPZ). The developer received a letter explaining that “despite the earlier approval the proposed development was no longer feasible because the ALUCP was more restrictive than the prior compatibility plan and the application's proposed use of ‘research and development’ was not permissible.”
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Michael C. Parme, Haight Brown & Bonesteel LLPMr. Parme may be contacted at
mparme@hbblaw.com
Georgia Court of Appeals Holds Lay Witness Can Provide Opinion Testimony on the Value of a Property If the Witness Had an Opportunity to Form a Reasoned Opinion
September 25, 2018 —
Gus Sara - The Subrogation StrategistIn Woodrum v. Ga. Farm Bureau Mut. Ins. Co., 815 S.E.2d 650 (Ga. Ct. App. 2018), the Court of Appeals of Georgia considered whether the lower court properly disqualified a contractor as an expert witness and excluded the contractor from offering lay opinion testimony regarding the value of a property. The Court of Appeals held that, while the lower court properly disqualified the contractor as an expert witness, it improperly excluded the general contractor’s lay opinion testimony regarding the value of the property. This case establishes that, in Georgia, a lay witness can provide opinion testimony on the value of a property if the proponent of the testimony demonstrates that the witness had an opportunity to form a reasoned opinion.
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Gus Sara, White and Williams LLPMr. Sara may be contacted at
sarag@whiteandwilliams.com
Florida Death Toll Rises by Three, Reaching 27 as Search Resumes
July 05, 2021 —
The Associated Press (Adriana Gomez Licon & Bobby Caina Calvan) - BloombergSurfside, Fla. (AP) -- Rescuers searched through fresh rubble Monday after the last of the collapsed Florida condo building was demolished, which allowed crews into previously inaccessible places, including bedrooms where people were believed to be sleeping at the time of the disaster, officials said.
But they faced a new challenge from thunderstorms that hit the area as Tropical Storm Elsa approached the state.
Four more victims were discovered in the new pile, Miami-Dade Assistant Fire Chief Raide Jadallah told family members, raising the death toll to 28 people. Another 117 people remain unaccounted for.
The demolition late Sunday was crucial to the search-and-rescue effort, officials said, and raised the prospect that crews could increase both the pace of their work and the number of searchers at the site, although the chance of finding survivors 12 days after the June 24 collapse has diminished.
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The Associated Press, Bloomberg
California Supreme Court Shifts Gears on “Reverse CEQA”
February 23, 2016 —
Garret Murai – California Construction Law BlogThe California Supreme Court has shifted gears on so-called “reverse CEQA” under the California Environmental Quality Act (“CEQA”).
The Supreme Court, in a much-anticipated decision, in California Building Industry Association v. Bay Area Air Quality Management District, Case No. S213478 (December 17, 2015), held that public agencies subject to CEQA are not required to analyze whether existing environmental conditions may impact a proposed project’s future users or residents – also known as “reverse CEQA” or “CEQA in reverse” – as opposed to the more traditional analysis of a proposed project’s impact on the environment, unless:
1. The proposed project risks exacerbating existing environmental hazards – in which case, it is the proposed project’s impact on the environment not the environment’s impact on the proposed project, which compels the evaluation; or
2. A reverse CEQA analysis is already required under statute, for example, on certain airport, school and housing projects.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Texas Approves Law Ensuring Fair and Open Competition
August 20, 2019 —
Nick Steingart - Construction ExecutiveGov. Greg Abbott signed into law Neutrality in State Government Contracting (H.B. 985), which ensures Texas’ entire skilled construction workforce--96% of which does not belong to a labor union--can compete on a level playing field for public works contracts to build projects utilizing state funding or credit. The law, introduced by Rep. Tan Parker and sponsored by Sen. Kelly Hancock, prohibits project labor agreements from being mandated on certain taxpayer-funded construction projects.
Based on the latest data available from the Census Bureau, state and local governments in Texas spent more money on public construction projects than any other state in 2017.
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Nick Steingart, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Steingart may be contacted at
steingart@abc.org
Where There's Smoke...California's New Emergency Wildfire Smoke Protection Regulation And What Employers Are Required To Do
August 26, 2019 —
Michael Studenka – Newmeyer DillionCalifornia employers need to pay heed to the recently announced California Division of Occupational Safety and Health Standards Board (Cal/OSHA) emergency regulation related to their duty to protect employees from the potential harm caused by wildfire smoke. As of July 29, 2019, employers are required to actively monitor their local Air Quality Index (AQI) and take steps to protect their employees from the harmful particulate matter contained within wildfire smoke.
Which Workplaces Are Impacted?
The regulation applies to all workplaces exposed to wildfire smoke with an AQI level of 151 or greater (ranging from "unhealthy" to "hazardous"). "Exposed" workplaces are those that are not in enclosed buildings, structures, or vehicles with mechanical ventilation and the ability to close all windows and doors. Outdoor occupations including construction, agriculture, landscaping, maintenance, commercial delivery, and others that expose the worker to the outside air for more than one hour will be the most impacted by this new regulation, although firefighters engaged in fighting wildfires are expressly exempt from the statute.
What If I Have A Potentially Exposed Workplace?
Employers with outdoor workplaces that are exposed to wildfire smoke are required to monitor the AQI before each shift, and "periodically throughout the day," all to ensure that the Air Quality Index for PM2.5 (particulate matter with an aerodynamic diameter of 2.5 micrometers or smaller) remains below 151. This can be done by visiting certain governmental websites, including U.S. Environmental Protection Agency's AirNow website (www.airnow.gov), which allow for regular email alerts to be issued to the employer. An employer with a potentially exposed workplace must also set up a communication system capable of communicating to all affected employees (in a language readily understood) the status of wildfire smoke hazards. The communication system must also provide the employees a process to inform the employer of worsening air quality and/or any adverse symptoms that they may be experiencing (e.g., asthma or chest pain).
Finally, employers are required to add to their Injury and Illness Protection Program (IIPP) the provision of effective training and instruction (i.e., approximately 15 minutes) regarding:
- the health effects of wildfire smoke;
- the right to obtain medical treatment without fear of reprisal;
- how employees can obtain the current AQI for PM2.5;
- the requirements of this regulation;
- the employer's communication system regarding wildfire smoke;
- the employer's methods for protecting employees from wildfire smoke;
- the importance, limitations, and benefits of using a respirator when exposed to wildfire smoke; and
- the proper use and maintenance of respirators.
The Required Provision of Respiratory Protective Equipment
Employers with exposed workplaces are required to provide effective NIOSH-approved respirators (e.g., N95 filtering facepiece respirators) when AQI for PM2.5 levels are 151-200 (unhealthy), 201-300 (very unhealthy), or 301-500 (hazardous). The N95 respirator typically costs less than a dollar per mask and can be easily purchased online. Employers are also required to clean, store, and maintain these respirators for times of need. Employees are free to decide whether to use a respirator when the AQI for PM2.5 level is between 151-500, although employers must be prepared to offer the equipment at an AQI level of 151 or higher. Use of the respirator by an employee exposed to an AQI for PM2.5 level that exceeds 500, however, is required by law.
What Should Potentially Exposed Employers Do Now?
Employers should immediately begin supplementing their IIPP platforms to include this regulation's prescribed training regarding wildfire smoke. Companies should also develop an adequate monitoring and communication plan regarding wildfire smoke hazards and effectively train their supervisors on the same. Finally, acquiring an adequate supply of N95 filtering respirators now will help ensure that employers are prepared for the next wildfire.
Michael Studenka is a partner in Newmeyer Dillion's Labor & Employment practice group. His practice focuses on the life cycle of Employment law. Mike advises and trains companies on proactive measures to keep them protected and in compliance, and leverages his significant trial experience when faced with litigation. You can reach out to him at michael.studenka@ndlf.com.
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Keeping Your Workers Safe When Air Quality Isn't
August 21, 2023 —
Kim Ritchie - Construction ExecutiveKim Ritchie, Vice President, Canada, ISN
Construction Executive Q&A
What risks do wildfires and poor air quality pose to workers?
Exposure to smoke caused by wildfires can have significant health risks, especially for those with preexisting medical conditions. Smoke exposure and poor air quality can trigger immediate effects such as coughing, difficulty breathing and irritation of the throat, eyes and lungs. However, despite smoke dissipating, it could have long-term health complications with cardiovascular impacts, such as heart attacks and stroke.
With the lasting impacts caused by exposure to wildfire smoke and poor air quality, it's essential for organizations to look out for their workers’ long-term health.
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Kim Ritchie, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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