Who Would Face Liability For Oroville Dam Management: Brett Moore Authors Law360 Article
February 23, 2017 —
Brett G. Moore - Haight Brown & Bonesteel LLPOn February 12, 2017, the Butte County Sheriff ordered the evacuation of more than 180,000 people in the communities surrounding California’s Oroville Dam after officials spotted severe erosion in the dam’s emergency spillway. The Oroville Dam facilities are managed on by the Federal Energy Regulatory Commission, which licenses the project to California’s Department of Water Resources (DWR). In his Law360 article “Who Would Face Liability For Oroville Dam Management,” Attorney Brett Moore discusses the liability of the agencies involved in managing the Oroville facilities should the dam fail again.
Read the court decisionRead the full story...Reprinted courtesy of
Brett G. Moore, Haight Brown & Bonesteel LLPMr. Moore may be contacted at
bmoore@hbblaw.com
Contractual Fee-Shifting in Litigation: Who Pays the Price?
December 31, 2024 —
Caitlin Kicklighter - ConsensusDocsWhen disputes on a construction project escalate to litigation, general contractors may find themselves entangled in a costly and time-consuming legal battle. One important concept to understand is contractual fee-shifting under a “prevailing party” provision, which can significantly impact damages recovered in litigation. The general rule, known as the “American Rule,” requires each party to pay its own legal costs, including attorney’s fees, expert witness expenses, and other court-related costs. This differs from other legal systems where the losing party typically pays the winning party’s fees. One exception to the American Rule is contractual fee-shifting, specifically through “prevailing party” provisions, which allows for the award of attorney’s fees and costs when explicitly provided for in a contract.
This article explores this exception to the American Rule, delves into the challenges posed by prevailing party provisions, and shares tips to consider for drafting these clauses to improve clarity and minimize uncertainty in the face of litigation.
Read the court decisionRead the full story...Reprinted courtesy of
Caitlin Kicklighter, Jones Walker LLPMs. Kicklighter may be contacted at
ckicklighter@joneswalker.com
World Cup May Pull Out of Brazil because of Construction Delays
January 28, 2014 —
Beverley BevenFlorez-CDJ STAFFBack in October of last year, CNN reported that a judge suspended construction at one of the stadiums being built for this summer’s World Cup in Brazil. The judge stated that the dangers for construction workers included "being buried, run over, falling from heights and being hit by material, among other serious risks,” according to CNN.
Recently, the Los Angeles Times reported that FIFA is threatening to pull out of Brazil because of construction delays: “We cannot organize a match without a stadium,” Jerome Valcke, FIFA’s secretary general, as quoted in the Los Angeles Times. “This has reached a critical point.”
The deadline for completion of the 12 World Cup stadiums was January 1st, but various delays—including “fatal construction accidents at stadiums in Sao Paulo, Brasilia, and Manaus” as well as worker walk offs over pay—forced FIFA to “relax” the deadline.
Read the full story at CNN...
Read the full story at the Los Angeles Times... Read the court decisionRead the full story...Reprinted courtesy of
OSHA: What to Expect in 2022
December 20, 2021 —
Stephen E. Irving - Construction ExecutiveCOVID-19 created great upheaval throughout the economy and the legal compliance world as well. The pandemic has been a great disruptor and has brought rules, regulations and related agency guidance that have served to overwhelm even the most conscientious and attentive employer. The welcomed arrival of COVID-19 vaccines, and now the perhaps less welcome OSHA vaccine mandate, simply add to an employer’s compliance burden.
While OSHA is busy attempting to implement its vaccine/testing mandate, it also has numerous other significant matters in the works of which employers in the construction industry should be aware. These include new rule drafting and several national and regional emphasis programs, which illustrate OSHA’s current priorities.
1. The Vaccine Mandate
Pursuant to a directive from President Biden, in October 2021, OSHA issued an emergency temporary standard implementing a mandate for all employers with more than 100 employees. This mandate requires that employees of such employers be vaccinated for COVID-19 or submit to regular testing. OSHA has also expressed interest in issuing a permanent standard and potentially expanding to include smaller employers.
Reprinted courtesy of
Stephen E. Irving, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
Untangling Unique Legal Issues in Modern Modular Construction
September 09, 2024 —
Chad Theriot & Brad Sands - Construction ExecutiveModular construction has grown significantly over the last few years and shows no signs of slowing down. This construction method is a departure from traditional approaches where all construction activity occurs onsite. Modular construction involves building standardized project components—usually in an offsite, controlled environment—which are then transported and assembled at the project site. Offsite construction generally allows for better quality control and economic efficiency, as it can utilize an assembly-line process. Modular fabrication can also centralize skilled labor in regions with lower labor costs.
Establishing each party's expectations upfront is always important, but even more so in modular construction since much of the construction activity is performed away from the ultimate project site. This requires extensive coordination among designers, fabricators, installers and owners to ensure construction, testing and quality progresses accordingly. Every field change and design clash could have an exponential impact on the modular fabrication efficiencies given the assembly-line approach and remote nature of modular work.
Reprinted courtesy of
Chad Theriot & Brad Sands, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
Colorado Federal Court Confirms Consequetial Property Damage, But Finds No Coverage for Subcontractor
November 01, 2022 —
Tred R. Eyerly - Insurance Law HawaiiA recommended decision from the Magistrate Judge of the Federal District Court for the District of Colorado found there was no coverage for the subcontractor's faulty workmanship, but recognized that Colorado finds consequential damages to be property damage. Indian Harbor Ins. Co. v. Houston Cas. Co., 2022 U.S. Dist. LEXIS 117857 (D. Colo. July 5, 2022).
The insured, Tripp Construction, was a subcontrator for contructing balconies at an apartment complex. The owner complained that Tripp failed to properly install balconies. The defective installation of certain balcony components damaged other, non-defective components.
The general contractor had an OCIP policy issued by Houston Casualty Company (HCC). The general contractor also had a Subcontractor Default policy issued by Indian Harbor.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Coverage Established for Property Damage Caused by Added Product
April 28, 2014 —
Tred R. Eyerly – Insurance Law HawaiiApplying Minnesota law, the federal district court determined the supplier of contaminated dried milk had coverage. The Netherlands Ins. Co. v. Main Street Ingredients, LLC, 2014 WL 1012793 (8th Cir. March 18, 2014).
In 2007, Plainview Milk Products sold dried milk to Main Street Ingredients, LLC, who then sold the dried milk to Malt-O-Meal. The dried milk was used by Malt-O-Meal in its instant oatmeal products.
In June 2009, the FDA found Salmonella bacteria at Plainview's plant. The FDA also observed thirteen instances of insanitary conditions in the plant. Plainview issued a product recall notice announcing a "voluntary recall" of dried milk, stating its dried milk had "the potential to be contaminated with Salmonella."
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Landlords, Brace Yourselves: New Law Now Limits Your Rental Increases & Terminations
March 02, 2020 —
Kyle Janecek – Newmeyer DillionCalifornia can be an especially expensive place to live. While this is the common wisdom, residents of the state are also painfully aware that location is an equally important factor. Yet, to curb unscrupulous actions in certain areas and expansive rental increases, Governor Gavin Newsom has signed AB-1482, which is a state-wide limitation on yearly rental increases, prompting potential additions to leases, and additional notices that landlords are required to give to tenants. Failure to do so may cost landlords unnecessary costs and unforeseen complications around the termination of a tenancy.
How Does the Rental Cap Work?
The law sets forth three ways that rental increases may be limited: (1) a cap of 5% plus the percent change in the cost of living; (2) a cap of 10%; or (3) where local rent or price control that restricts annual increases in the rental rate to an amount less than the state law. The cap that applies is the one that is the most restrictive on the landlord. For example, if the cost of living has gone up by 6%, and there is a local law that restricts rental increases by 15%, then the state law would cap the landlord to a rental increase of 10%.
Notably, this doesn't count any discounts or incentives that are applied to the rent, if they are (a) listed separately and (b) clearly stated within the residential lease agreement. Thus, even if the effective increase would be beyond the applicable cap, the landlord is not obligated to cap rent using the discounted rental fees.
Finally, this does not prohibit the landlord from freely setting a rent for new tenants. The cap only applies to existing tenants.
Exempt Properties from the Law
Certain properties are also exempt from the rental cap law, allowing landlords to increase rents without limitation for the residential properties below:
- Housing restricted by deed for purposes of affordable housing.
- New housing with a certificate of occupancy that has been granted within the previous 15 years.
- Condominiums or townhouses provided that the owner is not (a) a real estate investment trust; (b) a corporation, or (c) a limited liability trust.
- A duplex in which one of the units is owner-occupied as the owner's primary residence.
'Just Cause' for Terminations Is a Necessity
Notably, AB-1482 is not limited to rent restrictions. AB-1482 also restricts the ability of a landlord to evict tenants after the tenant has been occupying the property for over 12 months without just cause. Just cause includes items typical to an ordinary eviction action, such as a failure to pay rent or a default of a material term of the lease, or nuisance actions. Importantly, the legislature provided "no-fault just cause" such as the intent to occupy the real property by the owner or one of their family members, withdrawal of the property from the rental market, compliance with a government agency or an intent to substantially remodel the property.
In the event that the just cause is "no-fault," then the owner must either (a) assist the tenant in relocating by providing a direct payment of a full month's rent to the tenant within 15 calendar days of the notice; or (b) waive the payment of the last month's rent. Effectively, this puts a cost on the landlord to terminate a tenancy. Importantly, an owner's failure to do either of those actions will render the termination of tenancy void, and cannot be contractually waived.
This does not apply to any of the housing types exempt under the rental cap provision, or (a) transient and tourist hotel occupancy; (b) housing accommodations in a nonprofit hospital, religious facility, extended care facility, licensed residential care facility for the elderly, or in an adult residential facility; (c) housing accommodations in which the tenant shares bathroom or kitchen facilities with the owner; (d) single-family owner-occupied residences where the owner leases no more than two units or bedrooms; or (e) student housing for kindergartens or grades 1 to 12.
Notwithstanding, landlords must also provide additional language within their lease giving notice of the rental cap law and the tenant's rights regarding termination. This language is stated within the law, and must be given in 12 point font.
What Landlords Must Do Right Now
Ultimately, landlords will have to show more care towards termination processes and rental increases moving forward.
At a bare minimum, landlords will have to revise their form leases for new tenants and prepare addendums for any tenancies continuing in 2020. While the bare minimum is the new, state-mandated language to inform tenants of their rights, other language may be required if the landlord wishes to reserve a right to terminate in order to take occupancy for themselves.
Furthermore, for any leases going forward, any landlord that wants to provide a temporary discount or incentive to rent their units will have to include language outlining and specifically stating the presence of the discount or incentive, or chance that a tenant may contest the increase in rent as a violation of the rental cap portion of the law. Similarly, the changes above will have to be implemented as an addendum to any leases being renewed.
A failure to do any of these actions risks that a tenant may contest either the termination for being improper or an increase in rent, as an excessive rent hike.
Kyle Janecek is an associate on the firm's Transactional team, and has experience with drafting leases for landlords and tenants, real estate purchase and sale agreements, and loans secured by real estate. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 70 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 success and bottom line. 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.
Read the court decisionRead the full story...Reprinted courtesy of
