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DIRECTORY AND CAPABILITIES

Superintendent’s On-Site Supervision Compensable as Labor Under Miller Act

March 13, 2023 — David Adelstein - Florida Construction Legal Updates
A recent Miller Act payment bond decision out of the District of Columbia Circuit Court of Appeals, U.S. f/u/b/o Civil Construction, LLC v. Hirani Engineering & Land Surveying, PC, 58 F.4th 1250 (D.C. Circ. 2023), dealt with the issue of whether a subcontractor’s superintendent constitutes recoverable “labor” within the meaning of the Miller Act and compensable as a cost under the Miller Act that typically views labor as on-site physical labor. The issue is that the Miller Act covers “[e]very person that has furnished labor or material in carrying out work provided for in a contract.” Civil Construction, supra, at 1253 quoting 40 U.S.C. s. 3133(b)(1). The Miller Act does not define labor. The subcontractor claimed labor includes actual superintending at the job site. The surety disagreed that a superintendent’s presence on a job site constitutes labor as the superintendent has to actually perform physical labor on the job site to constitute compensable labor under the Miller Act. The subcontractor argued its subcontract and the government’s quality control standards required detailed daily reports that verified manpower, equipment, and work performed at the job site. It further claimed its superintendent had to continuously supervise and inspect construction activities on-site: “[the] superintendent had to be on-site to account for, among other things, hours worked by crew members, usage and standby hours for each piece of equipment, materials delivered, weather throughout the day, and all work performed. These on-site responsibilities reflected the government’s quality control standards, under which the superintendent as ‘the most senior site manager at the project, is responsible for the overall construction activities at the site…includ[ing] all quality, workmanship, and production of crews and equipment.” Civil Construction, supra, at 1253-54. 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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Texas Supreme Court Cements Exception to “Eight-Corners” Rule Through Two Recent Rulings

March 06, 2022 — Jeremy S. Macklin - Traub Lieberman Insurance Law Blog
The Texas “eight corners” rule precludes insurers from disclaiming a defense obligation based on facts not alleged in the underlying pleadings. Texas federal and appellate courts have been issuing rulings addressing exceptions to the eight corners rule and recently sought guidance from the Texas Supreme Court on whether Texas law recognizes such exceptions to the “eight corners” rule. The Texas Supreme Court has now spoken on the issue. Monroe Guar. Ins. Co. v. BITCO Gen. Ins. Corp., 65 Tex. Sup. Ct. J. 440 (2022). In Monroe, David Jones contracted with 5D Drilling & Pump Services in the summer of 2014 to drill a 3,600-foot commercial irrigation well on his farmland. In 2016, Jones sued 5D for breach of contract and negligence relating to 5D’s drilling operations on Jones’s property. Jones’s pleading was silent as to when the damage flowing from 5D’s alleged acts of misconduct occurred. BITCO and Monroe stipulated that 5D’s drill struck a bore hole during 5D’s drilling operations in or around November 2014. Read the court decision
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Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman
Mr. Macklin may be contacted at jmacklin@tlsslaw.com

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New NEPA Rule Restores Added Infrastructure Project Scrutiny

May 10, 2022 — Pam McFarland - Engineering News-Record
The White House Council on Environmental Quality has finalized a regulation that restores basic project environmental review practices that were in place prior to changes made during the Trump administration. The rule is the first of two that will have the Biden administration’s stamp on how such reviews are done under the National Environmental Policy Act (NEPA) for major federal construction projects. Reprinted courtesy of Pam McFarland, Engineering News-Record Ms. McFarland may be contacted at mcfarlandp@enr.com Read the full story... Read the court decision
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Construction Worker Dies after Building Collapse

November 18, 2011 — CDJ STAFF

A Bronx construction worker died when the pillars gave way in the basement where he was working. The two-story commercial building collapsed, burying Mr. Kebbeh under about six feet of rubble. The New York Times reports that firefighters dug him out with their bare hands. Mr. Kebbeh was taken to Jacobi Medical Center where he died. Two other construction workers escaped unharmed.

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Stucco Contractor Trying to Limit Communication in Construction Defect Case

November 13, 2013 — CDJ STAFF
South Carolina State Plastering claimed in the South Carolina Court of Appeals that communication between attorneys and residents of a retirement community could undermine the judgment in the case. Residents of Sun City had filed a class action lawsuit over problems with stucco in the community. Phillip Segul, the plaintiffs’ attorney, noted that plasterer was “directly communicating with the class members and getting them to sign opt-outs and releases of their claims,” although this was something that Everett Kendall, the plasterer’s attorney denied. The lawsuit has been grinding along for six years. Some residents fear they won’t outlive the construction defect lawsuit. Read the court decision
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Delaware Strengthens Jurisdictional Defenses for Foreign Corporations Registered to Do Business in Delaware

April 28, 2016 — Randall MacTough, Timothy Martin & Christian Singewald – White & Williams LLP
The days of companies being sued in Delaware based solely upon their compliance with Delaware’s registration statutes appear over. Recently, the Delaware Supreme Court, in Genuine Parts Co. v. Cepec[1], held that Delaware Courts cannot exercise jurisdiction over a foreign corporation registered to do business in Delaware for claims unrelated to its conduct in Delaware. In Delaware, foreign corporations must register to do business and designate a registered agent in Delaware to accept service of process to sell its products or services.[2] Since 1988, Delaware has construed these registration laws as foreign corporations’ express consent to general jurisdiction.[3] Reprinted courtesy of White & Williams LLP attorneys Randall MacTough, Timothy Martin and Christian Singewald Mr. MacTough may be contacted at mactoughr@whiteandwilliams.com Mr. Martin may be contacted at martint@whiteandwilliams.com Mr. Singewald may be contacted at singewaldc@whiteandwilliams.com Read the court decision
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"Ongoing Storm" Rules for the Northeast (Connecticut, Massachusetts, New Jersey, New York & Rhode Island)

February 22, 2021 — Angeline Ioannou, Kenneth Walton, Colin Hackett, Gregory Katz & Lauren Motola-Davis - Lewis Brisbois
The winter storm that recently brought several feet of snow to the Northeast signaled that we are, indeed, in the middle of winter. Moreover, our nation’s favorite groundhog, Punxsutawney Phil, saw his shadow on Groundhog Day this year, indicating that winter will be with us for six more weeks. As we move through the remainder of this snowy season, it is important for businesses to understand their legal obligations concerning snow removal and the defenses that are available to them in the event that an injury occurs on their premises. This alert summarizes the ongoing storm rules in Connecticut, Massachusetts, New Jersey, New York, and Rhode Island, and analyzes property owners’ snow removal responsibilities as well as related premises liability issues under these states’ laws. Connecticut It is well settled in Connecticut that, in the absence of unusual circumstances, in fulfilling their duty to invitees on their property, property owners may wait a reasonable time after the conclusion of a storm to perform ice and snow removal from outside walkways and steps. Kraus v. Newton, 211 Conn. 191, 197-198 (1989). A property owner’s duty to perform reasonable snow and ice removal of outside walkways does not arise until after a reasonable period of time has passed after a storm ends. Umsteadt v. G.R. Realty, 123 Conn. App. 73, 83 (2010). The ongoing storm doctrine does not apply, however, if the defective condition arises from preexisting ice or snow, and not from the ongoing storm. Whether the alleged defective condition was caused by preexisting ice or snow and whether a storm has concluded are both questions of fact that may be decided by a jury. Kraus at 197-198. Reprinted courtesy of Angeline Ioannou, Lewis Brisbois, Kenneth Walton, Lewis Brisbois, Colin Hackett, Lewis Brisbois, Gregory Katz, Lewis Brisbois and Lauren Motola-Davis, Lewis Brisbois Ms. Ioannou may be contacted at Angeline.Ioannou@lewisbrisbois.com Mr. Walton may be contacted at Ken.Walton@lewisbrisbois.com Mr. Hackett may be contacted at Colin.Hackett@lewisbrisbois.com Mr. Katz may be contacted at Greg.Katz@lewisbrisbois.com Ms. Motola-Davis may be contacted at Lauren.MotolaDavis@lewisbrisbois.com Read the court decision
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Connecticut Supreme Court Further Refines Meaning of "Collapse"

January 13, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Connecticut courts have been inundated with collapse cases the past couple of years due to insureds' living in homes that were constructed with defective concrete manufactured by J.J. Mottes Concrete Company. In a duo of cases, the Connecticut Supreme Court responded to a certified question from the U.S. District Court, holding that collapse required that the building be in imminent danger of falling down. Vera v. Liberty Mut. Fire Ins. Co., 2019 Conn. LEXIS 339 (Conn. Nov. 12, 2019). Plaintiffs had resided in their home since 2009. The home was built in 1993. In August 2015, after learning about the problem of crumbling basement walls affecting homes in their community due to cement manufactured by Mottes, they retained a structural engineer to evaluate their basement walls. The engineer found spider web cracking approximately 1/16 of an inch wide in the basement walls and three small vertical cracks. There were no visible signs of bowing. The engineer did not find that the walls were in imminent danger of falling down, but recommended that the basement walls be replaced. Plaintiffs submitted a claim under their homeowners policy to Liberty Mutual. The claim was denied. The policy did not define collapse, but stated that collapse did not include "settling, cracking, shrinking, bulging or expansion." Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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