New York Assembly Reconsiders ‘Bad Faith’ Bill
May 31, 2021 —
Copernicus T. Gaza, Robert S. Nobel, Craig Rokuson, Eric D. Suben - Traub LiebermanThe New York State Assembly is considering A07285, which creates a private right of action for bad faith “if the insurer unreasonably refuses to pay or unreasonably delays payment without substantial justification.” The bill was first introduced in 2013 but was reintroduced on May 3, 2021 and has received some recent attention. According to the bill, an insurer acts unreasonably when it (among other things):
- Fails to provide the claimant with accurate information regarding policy provisions relating to the coverage at issue; or
- Fails to effectuate in good faith a prompt, fair, and equitable settlement of a claim or portion of a claim and where the insurer failed to reasonably accord at least equal or more favorable consideration to its insured's interests as it did to its own interests, and thereby exposed the insured to a judgment in excess of the policy limits or caused other damage to a claimant; or
- Fails to provide a timely written denial of a claimant's claim, or portion thereof, with a full and complete explanation of such denial, including references to specific policy provisions wherever possible; or
- Fails to act in good faith by compelling such claimant to initiate a lawsuit to recover under the policy by offering substantially less than the amounts ultimately recovered in such suit; or
- Fails to timely provide, on request of the policy holder or the policy holder's representative, all reports or other documentation arising from the investigation of a claim; or
- Refuses to pay a claim without conducting a reasonable investigation prior to such refusal.
Reprinted courtesy of
Copernicus T. Gaza, Traub Lieberman,
Robert S. Nobel, Traub Lieberman,
Craig Rokuson, Traub Lieberman and
Eric D. Suben, Traub Lieberman
Mr. Gaza may be contacted at cgaza@tlsslaw.com
Mr. Nobel may be contacted at rnobel@tlsslaw.com
Mr. Rokuson may be contacted at crokuson@tlsslaw.com
Mr. Suben may be contacted at esuben@tlsslaw.com
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New WOTUS Rule
November 13, 2023 —
David R. Cook Jr. - Autry, Hall & Cook, LLPThe U.S. Army Corps of Engineers amended the regulation to conform the definition of “waters of the United States” to conform to the Supreme Court’s ruling in
Sackett v. Environmental Protection Agency. See the prior blog post about the Supreme Court’s ruling:
Sackett v. Environmental Protection Agency – Construction and Utility Law | Atlanta | AHC Law
Federal Register :: Revised Definition of “Waters of the United States”; Conforming
Reprinted courtesy of
David R. Cook Jr., Autry, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com
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Construction Law Client Alert: California’s Right to Repair Act (SB 800) Takes Another Hit, Then Fights Back
February 25, 2014 —
Steven M. Cvitanovic and Whitney L. Stefko - Haight Brown & Bonesteel, LLPLast week, the California appellate courts decided two cases with ramifications under the Right to Repair Act. The first case, Burch, addresses whether the Right to Repair Act is the exclusive remedy for the homeowner. The second case, KB Home, addresses a situation where a homeowner or the homeowner's insurer fails to follow the procedures under the Right to Repair Act.
Last August, the Fourth Appellate District announced its decision in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 holding that SB 800 is not a homeowner’s exclusive remedy in situations where defects cause actual damage. Many lawyers believed that Liberty Mutual would be a one-off because of its facts – it was a subrogation case brought by an insurance company. So much for that.
Now the Second Appellate District is getting into the act.
In Burch v. The Superior Court of Los Angeles County, et al., the Second Appellate District overturned an order granting summary adjudication in favor of a developer, general contractor, and their respective owners, in a construction defect action brought by a residential homeowner. The trial court found that the Right to Repair Act precluded the homeowner’s negligence and implied warranty claims but the Court of Appeal reversed.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel, LLP and
Whitney L. Stefko, Haight Brown & Bonesteel, LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com, Ms. Stefko may be contacted at wstefko@hbblaw.com
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Brooklyn’s Industry City to Get $1 Billion Modernization
March 12, 2015 —
David M. Levitt – Bloomberg(Bloomberg) -- A late 19th century industrial complex on New York’s Brooklyn waterfront is slated for a $1 billion makeover that aims to transform the property into a modern hub for manufacturing and technology.
The owners of Industry City, Atlanta-based Jamestown and its partners, plan to invest about $890 million over the next 12 years, and anticipate tenants will put in about $150 million of their own money, according to a proposal announced Monday. The project will create one of the largest centers for the “innovation economy” in the U.S., and one of New York’s biggest engines of job growth, said Andrew Kimball, chief executive officer of Industry City.
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David M. Levitt, BloombergMr. Levitt may be contacted at
dlevitt@bloomberg.net
Congratulations to Las Vegas Team on Their Successful Motion for Summary Judgment!
May 06, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPThis case arose from an alleged trip and fall on an uneven surface in a parking lot outside of BWBO’s client’s restaurant. Plaintiff alleged more than $385,000 in past medical specials (with high potential for future care and treatment) with exposure in excess of $1,000,000.00. The Plaintiff named as Defendants BWBO’s client as well as several entities related to their landlord.
Early in the case, Las Vegas Partner Jeffrey W. Saab and Senior Associate D. Ryan Efros moved for summary judgment based on terms of the restaurant’s lease. They argued that based on the lease, the duty to maintain the surface of the parking lot fell exclusively to the landlord, rather than the restaurant’s client. Plaintiff opposed the motion arguing that the prevailing case law held that any agreement between a tenant and its landlord does not preclude a plaintiff from asserting either or both defendants breached their duties of care. Jeff and Ryan distinguished that case and successfully persuaded the Court that there could be no contractual duty and no common law duty to maintain the parking surface, clearing the way for the court to grant summary judgment.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
AB5 Construction Exemption – A Checklist to Avoid Application of AB5’s Three-Part Test
February 18, 2020 —
Blake Dillion - Payne & Fears LLPConstruction companies have a unique opportunity to avoid the application of the restrictive new independent contractors law that took effect this year. This article provides a checklist that will help construction companies determine whether their relationships with subcontractors qualify for this exemption.
California’s Assembly Bill 5 (“AB5”), which went into effect Jan. 1, 2020, enacts into a statute last year’s California Supreme Court decision in
Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor.
Certain professions and industries are potentially exempt from this standard, including the construction industry. The ABC test does not apply to the relationship between a contractor and an individual performing work pursuant to a subcontractor in the construction industry, if certain criteria are met. In order for the “construction exemption” to apply, the contractor must demonstrate that all of the following criteria are satisfied.
- The subcontract is in writing;
- The subcontractor is licensed by the Contractors State License Board and the work is within the scope of that license;
- If the subcontractor is domiciled in a jurisdiction that requires the subcontractor to have a business license or business tax registration, the subcontractor has the required business license or business tax registration;
- The subcontractor maintains a business location that is separate from the business or work location of the contractor;
- The subcontractor has the authority to hire and to fire other persons to provide or assist in providing the services;
- The subcontractor assumes financial responsibility for errors or omissions in labor or services as evidenced by insurance, legally authorized indemnity obligations, performance bonds, or warranties relating to the labor or services being provided; and
- The subcontractor is customarily engaged in an independently established business of the same nature as that involved in the work performed.
The contractor must be able to establish each of the above criteria for the construction exemption to apply. If the contractor is successful, the long standing multi-factor test for determining independent contractor vs. employee status as described in
S.G. Borello & Sons, Inc. v. Dep’t of Industrial Relations, 48 Cal. 3d 341 (1989) will apply.
You should review your processes and procedures for engaging subcontractors to ensure that you can satisfy the above criteria. If you have questions about the application of AB5, the construction exemption, or the
Borello factors, you should speak with an attorney.
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Blake A. Dillion, Payne & FearsMr. Dillion may be contacted at
bad@paynefears.com
ASCE's Architectural Engineering Institute Announces Winners of 2021 AEI Professional Project Award
April 19, 2021 —
American Society of Civil EngineersRESTON, Va. – The
American Society of Civil Engineers' (ASCE) Architectural Engineering Institute (AEI) is pleased to announce the 100 Mount Street project by Skidmore, Owings & Merrill and Billie Jean King Main Library, also by Skidmore, Owings & Merrill as Best Overall Projects winners for AEI's Professional Project Awards. The 100 Mount Street project won the award Best Overall Project Over $100 Million, while the Billie Jean King Main Library won the award for Best Overall Project Under $100 Million. Traditionally, AEI announces project winners during its in-person annual Awards Banquet; however, ASCE held the banquet virtually this year to follow CDC guidelines which suggest avoiding large gatherings.
The AEI Professional Project Award recognizes outstanding achievements in design and construction by honoring the art and science of an integrated approach to architectural engineering. The program focuses on high performance buildings including structural, mechanical, electrical and lighting systems as well as construction management and architectural engineering integration. Projects are evaluated on originality and innovative character, integration and collaboration, sustainability, energy efficiency and economics, effective use of technology and constructability and site logistics.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
About ASCE's Architectural Engineering Institute
Established in 1998, AEI is the premier organization for architectural engineering, promoting an integrated, multi-disciplinary approach to planning, design, construction and operation of buildings, by encouraging innovation, collaboration and excellence in practice, education and research of architectural engineering. For more information, visit www.asce.org/aei.
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American Society of Civil Engineers
BIM Legal Liabilities: Not That Different
February 10, 2020 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Musings, we welcome Scott P. Fitzsimmons. Scott is an attorney with the construction law firm Watt, Tieder, Hoffar & Fitzgerald, where he represents contractors, subcontractors, owners, and engineers. He is also a LEED AP and an instructor for AGC of D.C., where he teaches BIM Contract Negotiation and Risk Allocation as part of AGC’s Certificate of Management, Building Information Modeling program.
When a new technology is introduced to the construction industry, contractors inevitably ask themselves one question “Great, how can this new gadget get me into trouble?” Building Information Modeling (BIM) is exactly the kind of technology that raises this fear. But, BIM has been around for a few years now, and the construction industry has done a good job of curtailing the fear of unanticipated legal liability.
Nevertheless, contractors should be aware of the pitfalls BIM introduces and should know how to limit their risk arising from this new “gadget.”
Often described as “CAD on Steroids,” BIM is truly much more than a simple design program. Along with early clash detection, BIM provides time and cost integration; calculates energy efficiency; and assists building maintenance long after project completion. Unlike CAD, BIM also modifies the collaborative nature of a construction project. Thus, subcontractors no longer review a design, submit shop drawings, and go to work. Rather, subcontractors are brought into the design process early in the project and often are asked to contribute to the design long before construction begins.
Asking a contractor or subcontractor to provide design services appears to shift the roles of an architect and a contractor. So, the questions abound: Is a contractor now responsible for design? Can the contractor be held responsible for defective design? Do not fret. To date, there has been only one advertised case addressing BIM liability. The reason is simple. For almost a hundred years, the United States Supreme Court has held that contractors are not responsible for defective design on a traditional design-bid-build project. Using BIM, therefore, should not modify a contractor’s responsibility. But, to ensure that your obligations do not extend beyond construction, all BIM requirements should be in writing and made part of your contract.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
