Happy Thanksgiving from CDJ
November 27, 2013 —
CDJ STAFFAs Thanksgiving kicks off this holiday season, all of us at CDJ would like to gratefully acknowledge all of our valued readers and contributors in the construction defect and claims community. This November marks CDJ’s third anniversary. With your continued support we are looking forward to expanded coverage and features in our 4th year. Best wishes to you and yours this holiday season!
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Contractor Succeeds At the Supreme Court Against Public Owner – Obtaining Fee Award and Determination The City Acted In Bad Faith
September 20, 2021 —
Lindsay T. Watkins - Ahlers Cressman & Sleight PLLCA contractor won a rare but much-deserved victory at the Supreme Court on July 8, 2021 in Conway Construction Co. v. City of Puyallup, 197 Wn.2d 825, 490 P.2d 221 (2021). The case, which involved an aggressive stance by a public owner:
- confirmed that the public owner bears the burden of demonstrating a termination for default is justified,
- reaffirmed the requirement to provide an opportunity to cure, and
- rejected the public owner’s attempts to escape its own contract language that the contractor relied upon.
John Ahlers and Lindsay Watkins of Ahlers Cressman and Sleight and Jamie Becker of Osborne Construction submitted the Amicus Brief for the Associated General Contractors (AGC) of Washington in support of Conway to the Supreme Court.
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Lindsay T. Watkins, Ahlers Cressman & Sleight PLLCMs. Watkins may be contacted at
Lindsay.Watkins@acslawyers.com
Is Your Website Accessible And Are You Liable If It Isn't?
January 06, 2020 —
Kyle Janecek and Jeffrey Dennis - Newmeyer DillionTo anyone who does business online - beware. While the ADA has been in play for years, it did not necessarily account for all the technological advances that have been made over time. Specifically, when it comes to accommodations - what accommodations can and should be made within a website, and whether accommodations should be made on all websites or just some. However, because of this, a new type of lawsuit has emerged, and is slowly becoming more prominent. Since the Supreme Court refused to clarify this particular area of law, we must turn to the recent Ninth Circuit Ruling in Robles v. Domino's for guidance.
What Happened in Robles v. Domino's?
As part of a spree of litigation, Guillermo Robles had sued Domino's Pizza due to the lack of accessibility for the Domino's smartphone application and website. Mr. Robles is blind, and neither the website nor application, which allowed users to order Domino's food for pickup or delivery, and offer exclusive discounts, were accessible to him. The Domino's website and application were both incompatible with his chosen software, prompting a lawsuit in 2016. After a short success in the trial court due to the lack of guidance given to websites and applications in how to accommodate for the ADA, the Ninth Circuit overruled the trial court, finding that: (1) the ADA applied to Domino's as there was a nexus between the Domino's website and app, and physical restaurants; and (2) the lack of guidance to Domino's did not violate its right to due process.
The ultimate effect of Robles v. Domino's found that businesses cannot necessarily avoid ADA litigation, even though the federal government hasn't given guidelines on how to make a website or mobile application accessible.
What Happened at the Supreme Court?
Back in June, Domino's appealed the Ninth Circuit decision, prompting a flurry of amicus briefs. This was done, in part, because there is a circuit split between the Sixth, Ninth, and Eleventh Circuits requiring that a website has a physical nexus to a place of public accommodation (i.e. a "brick-and-mortar" location), and the First, Second, Fifth and Seventh Circuits, which will rule that a website is a place of public accommodation if it does something a place of public accommodation would do (i.e. Netflix showing films). In addition, parties aside from Domino's have been looking for further guidance given the lack of comments from the Department of Justice and Congress. This is especially relevant because the Department of Justice has been considering the application of the ADA to the internet from 1996 to 2018, resulting in some inconsistent comments regarding the need for rule making.
This had pushed Domino's and others to attempt to end the ongoing regulation through litigation and furthermore, due to the decision in the Ninth Circuit, to avoid the Domino's holding from creating a "defacto" requirement.
How Do You Prepare?
While there is an off-chance that this kind of civil ADA litigation will resurface to the Supreme Court, these claims tend to settle relatively quickly, and ultimately may prevent courts from providing any solid or concrete guidance on accessibility until either the Department of Justice provides guidelines or Congress amends the ADA to specifically address website accessibility.
However, a determination of what is "accessible" may be put forward due to the new proposed regulations for the CCPA set forth by California's Attorney General. The proposed regulations specifically state that a privacy policy should be accessible to consumers with disabilities, and at a minimum, should provide information on how a consumer with a disability can access the notice in an alternative format. Importantly, this removes the arguments on whether or not the website would have to be a place of public accommodation. It is now widely applicable to every website. Given the CCPA is to be enforced by the Attorney General, this presents a possible situation where the state of California will determine what is accessible through enforcement actions.
In the absence of guidelines however, you have four actions you can take to protect your business.
- Learn the standards. There are unofficial accessibility guidelines such as WCAG 2.0AA that are treated as an industry standard. While this may not completely protect you from claims made by litigants, this will help your business move towards compliance.
- Know and negotiate. When dealing with third party service providers or developers, make sure that accessibility is brought up, discussed, and addressed before moving forward with using that service provider or developer. If the developer or service provider cannot assure that their product is accessible, be prepared to walk away. A business may be found liable for the inaccessibility of an online service provider used by the business to provide the business's services.
- Beta test often. As technology changes or websites are updated to be more device-friendly, new code or functions may make a website less accessible for accessibility devices and software. In addition, just because a website meets the WCAG 2.0AA, this may not account for all accessibility issues, so it would be prudent and beneficial to be thorough.
- Get help. Consider hiring third parties to help you evaluate a plan for accessibility and keep you up-to date for online accessibility issues.
Nonetheless, there is still a significant risk and uncertainty for anyone who does business online, as any business has to be aware of the current general framework of laws and industry accessibility guidelines to hope they meet the murky definition of "accessible."
Kyle Janecek is an associate in the firms Privacy & Data Security practice, and supports the team in advising clients on cyber related matters, including policies and procedures that can protect their day-to-day operations. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
Jeff Dennis (CIPP/US) 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.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that align with the business objectives of clients in diverse industries. With over 70 attorneys working as an integrated team to represent clients in all aspects of business, employment, real estate, privacy & data security and insurance law, Newmeyer Dillion delivers tailored legal services to propel clients' business growth. 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.
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Alleged Negligent Misrepresentation on Condition of Home is Not an Occurrence Causing Property Damage
December 17, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe court found that even if the insured's negligent misrepresentations constituted an accident, the disclosures did not cause physical damage to the property. Wood v. USAA Cas. Ins. Co., 2024 U.S. Dist. LEXIS 180624 (D. S.C. Sept. 12, 2024).
The insured, Clinton Wood, purchased a townhome in January 2014. After the purchase, Wood experienced leaks and significant water intrusion, as did other townhome owners in the same development. Wood and the other owners retained an engineer to evaluate the cause of the water damage. The engineer determined that the water intrusion was caused by defects in the design and construction of the residence. The engineer told Wood that the proposed repairs would not adequately address and resolve the water intrusion and leaks, and that the problems would continue even if repairs were made.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
The Architecture of Tomorrow Mimics Nature to Cool the Planet
January 31, 2022 —
Damian Shepherd - BloombergThere’s a new climate push in the building industry: regenerative architecture.
The sector has been trying for years to cut its sizeable carbon footprint, which was responsible for 38% of the world’s energy-related greenhouse gases in 2019. But developers need to go beyond preventing pollution if they want to help avoid catastrophic climate change, according to Sarah Ichioka and Michael Pawlyn, co-authors of a new book titled Flourish: Design Paradigms for Our Planetary Emergency.
They argue that buildings should be designed in a regenerative way — a process that mimics nature by restoring its own materials and sources of energy. It goes further than sustainable design, which seeks to reduce harm to the environment and use only essential materials.
“More than half of humanity’s total historic greenhouse-gas emissions have occurred since the concept of ‘sustainability’ entered the mainstream,” Ichioka and Pawlyn write. “It is now time to embrace a new regenerative approach to design and development.”
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Damian Shepherd, Bloomberg
California Court of Appeals Says, “We Like Eich(leay)!”
March 30, 2016 —
Garret Murai – California Construction Law BlogTime is money.
And nowhere can than be best observed than on a construction project.
Project delays can mean lost profits for owners, liquidated damages for general contractors, and increased material, labor, field overhead, and home office overhead costs for general contractors and subcontractors alike.
Pricing the impact of delays, however, can be thorny. Particularly, for home office overhead.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
California Court of Appeal Vacates $30M Non-Economic Damages Award Due to Failure to Properly Apportion Liability and Attorney Misconduct During Closing Argument
February 08, 2021 —
Krsto Mijanovic, Peter A. Dubrawski, Arezoo Jamshidi & Catherine M. Asuncion - Haight Brown & Bonesteel LLPOn January 20, 2021, the California Court of Appeal, Second District, Division Six (Ventura), in Plascencia v. Deese (B299142), vacated a $30 million non-economic damages award in a highway fatality case because: (1) the award did not properly apportion non-economic damages among everyone at fault in violation of Proposition 51; and (2) the amount of the award appeared to have been influenced by plaintiffs’ counsel’s misconduct and prejudicial remarks during closing argument.
In Plascencia, the plaintiffs sued several defendants for the wrongful death of their daughter arising from a highway fatality accident. All the defendants settled or were dismissed before trial except the trucking defendants. The highway fatality was caused when one defendant driver made an illegal U-turn on a highway as she left another defendant’s fruit stand. The plaintiffs’ daughter swerved to avoid the U-turn driver, lost control of her car, and crashed into the back of the trucking defendants’ diesel tractor-trailer. The truck driver had parked the truck on the side of the highway near the fruit stand, which the trucking defendants’ expert conceded fell below the standard of care.
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Krsto Mijanovic, Haight Brown & Bonesteel LLP,
Peter A. Dubrawski, Haight Brown & Bonesteel LLP,
Arezoo Jamshidi, Haight Brown & Bonesteel LLP and
Catherine M. Asuncion, Haight Brown & Bonesteel LLP
Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com
Mr. Dubrawski may be contacted at pdubrawski@hbblaw.com
Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com
Ms. Asuncion may be contacted at casuncion@hbblaw.com
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Construction Defects Lead to Demolition
May 26, 2011 —
CDJ STAFFTen years after it was built, demolition of Seattle’s McGuire Building has begun, as Jeanne Lang Jones reports in the Puget Sound Business Journal. Construction defects had rendered the 25-story apartment building uninhabitable. The major problem was corroded steel cabling. According to the report, “the building’s owners reached an undisclosed settlement last year with St. Louis-based contractor McCarthy Building Companies.”
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