ASCE Statement on Congress Passage of WRDA 2024
January 07, 2025 —
Feniosky Peña-Mora - American Society of Civil EngineersWASHINGTON, DC. – ASCE applauds Congress for passing the bipartisan Water Resources Development Act (WRDA) for 2024, Congress's biennial authorization for new U.S. Army Corps of Engineers (USACE) projects. WRDA 2024 authorizes 21 USACE water resources projects across 15 states, Washington, D.C., and Puerto Rico, with a focus on waterway navigation, hurricane and storm damage risk reduction, flood risk management, and ecosystem restoration. This legislation will support vital port and inland waterways projects through provisions such as an adjustment of the cost share formula for the Inland Waterways Trust Fund (IWTF), which helps pay for major rehabilitation and construction efforts along navigation channels, and an increase in the depth at which federal port and harbor projects can receive federal assistance for construction and maintenance. These provisions can help raise the ports (B-) and inland waterways (D+) grades reflected in ASCE's 2021
Report Card for America's Infrastructure, and we are thrilled to see WRDA 2024 prioritizing policies that will improve the nation's infrastructure systems.
The latest agreement includes the reauthorization of the National Dam Safety Program (NDSP) through 2028, a top legislative priority for ASCE and a critical program needed to improve the "D" grade that dams received in the 2021 Report Card for America's Infrastructure. The NDSP is the primary source of federal funding supporting state dam safety programs with inspection and monitoring activities, emergency preparedness, and staffing needs. The agreement also incorporates low-head dams into the National Inventory of Dams. These small structures can have deadly consequences when unaccounted for because they produce dangerous, undetectable currents. Incorporating them into the National Inventory of Dams will increase awareness and lead to more safety precautions that could save lives.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 160,000 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 or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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FIFA Inspecting Brazil’s World Cup Stadiums
March 26, 2014 —
Beverley BevenFlorez-CDJ STAFFRepresentatives from FIFA have returned to Brazil to conduct inspections of the World Cup stadiums, according to the San Francisco Chronicle. Even though Brazil had told FIFA they would have all twelve done by the end of 2013, only nine are finished. Furthermore, “infrastructure work in many of the 12 host cities remains far from completed.”
“This is the last occasion for the organizers to take stock of the operational preparations before the respective FIFA World Cup installations begin to be implemented in all 12 host cities,” FIFA said in a statement, as quoted in the San Francisco Chronicle.
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Can Your Small Business Afford to Risk the Imminent Threat of a Cyber Incident?
November 28, 2018 —
Jeffrey M. Dennis & Heather H. Whitehead – Newmeyer & Dillion LLPCybersecurity incidents are occurring on a daily basis and at an increasingly growing rate. Yet, many small businesses still have not obtained adequate (or any) cyber insurance to address these risks and the costly impacts to the business that will result. In a recent study completed by the Insurance Information Institute1, only about a third of all small businesses polled responded that they have cyber insurance in place, with 70% of respondents replying that they have no plans to purchase a cyber insurance policy in the next 12 months. Most of the businesses indicated that they do not believe they have any need for cyber insurance, yet almost half of those same companies stated they are unprepared to handle cyber threats. A main reason for not purchasing cyber insurance was a lack of understanding about this type of insurance and coverages available.
The Risks for Small Businesses
These statistics are alarming considering that the average cost of a cyber-related loss for a small business has increased 250% in the past two years, and now totals $188,400. In determining whether insurance coverage should be purchased, companies typically assess the perceived risks to the company, the likelihood of such risks occurring, as well as any costs or expenses that may result. For example, most companies regularly obtain a property policy to cover a fire or other casualty that may damage its business location even though such an event is unlikely or unexpected. Yet, cyber incidents are just as likely, if not more likely to occur, and the impacts to a company in the event of an incident are far worse. Many incidents result in a complete suspension of the daily operations of the company for several days or longer.
In addition to financial loss, companies may face the following as a result of a cyber incident:
- Theft, breach or loss of information and data;
- Damage to the company's reputation, brand or image; and
- Regulatory, governance and legal issues.
- How Cyber Insurance can Help
Cyber insurance policies can be obtained to address the losses related to a data breach and may include costs for investigating a breach, notifying people affected by a breach of personally identifiable information, managing the potential damage to reputation and other crisis-management expenses, recovering lost or corrupted data, and related legal expenses. More importantly, well-drafted policies can afford coverage for business interruption losses; i.e. those expenses and lost revenue resulting from a breached system and a company's inability to continue its usual operations. Coverage may also be obtained for "cyber extortion", which covers costs resulting from an extortion event such as ransomware or fraudulent wire transfers.
It is important to keep in mind that cyber insurance is only one component to consider when developing and implementing an overall risk management strategy to prevent cyber incidents. However, taking into account the exposure to a company if and when a cyber incident occurs, it is highly advisable to have this coverage in place.
1Insurance Information Institute, "Small business, big risk: Lack of cyber insurance is a serious threat," October 2018.
Jeff Dennis is the head of the firm's Privacy & Data Security practice. Jeff works with the firm's clients on cyber-related issues, including contractual and insurance opportunities to lessen their risk. For more information on how Jeff can help, contact him at jeff.dennis@ndlf.com.
Heather Whitehead is a Partner in the firm's Privacy & Data Security practice. Heather also practices insurance coverage matters for commercial, retail, industrial, mixed-use, multi-family and residential projects. For more information on how Heather can help, contact her at heather.whitehead@ndlf.com.
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Local Government’s Claims on Developer Bonds Dismissed for Failure to Pursue Administrative Remedies
March 22, 2017 —
David R. Cook - Autry, Hanrahan, Hall & Cook, LLPThe Georgia Court of Appeals recently affirmed a trial court’s dismissal of a county’s claim on developer bonds based on its failure to exhaust administrative remedies. Douglas County v. Hamilton State Bank, — Ga. App. –, A16A1708 (Mar. 16, 2017). Specifically, because the bank was under FDIC receivership, the County was required to pursue administrative remedies under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (the “Act”).
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David R. Cook, Autry, Hanrahan, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
The Dangers of an Unlicensed Contractor from Every Angle
January 11, 2021 —
William L. Porter - Porter Law GroupThe State of California requires that contractors in the building trades be licensed. Individuals and business entities obtain their contractors licenses by demonstrating to the California Contractors State License Board that they have the requisite knowledge, skill, and experience to be licensed. The CSLB issues licenses to those meeting requirements. As a construction attorney of longstanding tenure, I have witnessed the impact of unlicensed building contractors from every point of view. If you are considering hiring an unlicensed contractor, acting as an unlicensed contractor or even working for an unlicensed contractor as an employee, please consider the following perils:
To the Owner Considering Hiring an Unlicensed Contractor:
On the positive side for owners considering hiring an unlicensed contractor, the general rule in California is that an owner can escape the obligation to pay an unlicensed contractor for work performed and materials supplied because unlicensed contractors are prohibited from bringing legal actions against owners for payment. The law even goes so far as to allow the Owner to bring a legal action against the unlicensed Contractor for reimbursement of anything the owner paid to the unlicensed contractor. This is done through a “disgorgement” action (see, Business and Professions Code 7031. See also, the following article: Disgorgement Article). Despite this, there are a great many negative potential consequences to be considered by any owner who might consider hiring an unlicensed contractor. Among them are the following:
- If you are considering not paying your unlicensed contractor because Business and Professions Code 7031 allows it, please consider that unlicensed contractors, who have clearly demonstrated a disinclination to follow legal obligations in the first place, may resort to “less than socially acceptable” means of exacting retribution against those who do not pay them or who demand the return of money paid through a disgorgement action I am sorry to say this. Let us leave it at that.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Subcontractors Eye 2022 with Guarded Optimism
October 11, 2021 —
Louise Poirier - Engineering News-RecordWhile work continues to be plentiful for specialty contractors across the five-state region of Arkansas, Louisiana, Mississippi, Oklahoma and Texas, concerns remain for how the project landscape will continue to evolve as the impacts of the COVID-19 pandemic continue to weigh on the world.
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Louise Poirier, Engineering News-Record
Ms. Poirier may be contacted at poirierl@enr.com
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Developer’s Fraudulent Statements Are His Responsibility Alone in Construction Defect Case
February 10, 2012 —
CDJ STAFFThe Texas Court of Appeals ruled on December 21 in the case of Helm v Kingston, a construction defect case. After purchasing what was described as “an extremely well-built” two-bedroom townhouse, Mr. Kingston made complaints of construction defects. Greenway Development did not repair the defects to Kingston’s satisfaction, and he filed notice of suit. In his suit, he claimed that GDI and its president, John Helm, had committed fraud and negligent misrepresentation. Kingston claimed that Helm “fraudulently induced Kingston to believe that the townhouse evidenced the highest quality of workmanship when in fact the quality of workmanship was atrocious.” Helms brought a counterclaim that Kingston’s suit was frivolous.
About four years after Kingston purchased the townhome, the suit proceeded to trial. The trial court determined that Helm was not “liable in his individual capacity,” but this was reversed at appeal.
A second trial was held ten years later on the question of whether Kingston’s unit was a townhome or an apartment. A jury found that Helm “engaged in a false, misleading or deceptive act or practice that Kingston relied on to his detriment.” Kingston was awarded $75,862.29 and an additional $95,000 in attorney fees by the jury. Helms made an unsuccessful appeal to the Appeals Court, after which Kingston was awarded an additional $10,000. Helms then made an unsuccessful appeal to the Texas Supreme Court, which lead to an additional $3,000 for Kingston. There was also a verdict of $48,770.09 in pre-judgment interest and “five percent post-judgment interest accruing from the date of the judgment until the time the judgment is paid. Helm appealed.
In his appeal, Helm raised seven issues, which the court reorganized into five Kingston raised one issue on cross-appeal.
Helms’ first claim was that Kingston “failed to satisfy the requirement of” Texas’s Residential Construction Liability Act and that by not filing under the RCLA, Kingston’s fraud and misrepresentation claims were preempted. Further Helms claimed that the RCLA limited Kingston’s damages. The court rejected this, as the RCLA deals with complaints made to a contractor and not only did Helm fail to “conclusively establish” his “status as a ‘contractor’ under the statutory definition,” Helm testified that he was “not a contactor” at the pre-trial hearing.
Helms’s second claim was that Kingston’s later claim of a misconstructed firewall should be barred, claiming that Kingston “‘had knowledge of a defect in the firewall’ as early as 1997 but did not assert them until 2007.” The court rejected this because Kingston’s claim was that “Helm ‘fraudulently induced Kingston to believe that the townhouse evidenced the highest quality of workmanship when in fact the quality of the workmanship was atrocious.’”
Helms also challenged whether his statements that the residence was of “good quality” constituted fraud and misrepresentation under Texas’s Deceptive Trade Practices-Consumer Protection Act. The court concluded that Helm was in a position to make knowledgeable statements and further that “residential housing units are not artistic works for which quality is inherently a matter of subjective judgment.” Helm also claimed that Kingston could have avoided certain repair expenses through the “exercise of reasonable care.” Helms argued that the repairs could have been made for $6,400. The court disagreed, as these claims were cited only to invoke the DTPA, and that later petitions established additional defects.
Helms’s next claim was that he was not allowed to designate responsible third parties. The court rejected this because there GDI represented matters concerning the residence only through Helm’s statements. The court noted that “Helm is correct that?third parties may be liable for fraud if they ‘participated in the fraudulent transactions and reaped the benefits,’” but they note that “Helm never specifically alleged that GDI or CREIC participated in Helm’s alleged fraudulent transactions.
The final issue in the decision was about court costs, and here the court denied claims on both sides. Helm argued that the award of legal fees were excessive, as they exceeded the actual damages. The court noted that they “may not substitute our judgment for that of the jury,” and also that “the ratio between the actual damages awarded and the attorney’s fees is not a factor that determines the reasonableness of the fees.” But the court also rejected Kingston’s claim for post-judgment interest on $10,312.30 that Helm had deposited in the trial court’s registry. The court noted that the monies were to be paid out upon final judgment, but the mandate did not include any reference to interest.
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7 Ways Technology is Changing Construction (guest post)
July 28, 2018 —
Melissa Dewey Brumback - Construction Law in North CarolinaToday, we have a guest post by Eric Weisbrot, Chief Marketing Officer of JW Surety Bonds. With years of experience in the surety industry under several different roles within the company, he is also a contributing author to the surety bond blog. Welcome, Eric!
It is difficult to argue that technology is having minimal impact on society as a whole. Not only are digital enhancements making waves on the consumer side of the line, but businesses are feeling the effects as much if not more in recent years. The construction industry is no exception to this technological shift, but the influence the change is having on licensed construction contractors and long-standing businesses is far-reaching. Here are several ways technology is disrupting construction on a day to day basis.
#1. Autonomous Equipment. One of the most notable changes in construction is the addition of autonomous equipment on job sites. Several technology-focused companies are currently testing and perfecting construction machines that require no human interaction to operate. The hope behind this shift is to reduce the impact of the labor shortage in the industry while improving efficiency and productivity on each job.
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Melissa Dewey Brumback, Ragsdale Liggett, PLLCMs. Brumback may be contacted at
mbrumback@rl-law.com
