Seattle Washington Building Expert Directory

The Utility of Arbitration Agreements in the Construction Industry

December 30, 2019 — Brian L. Gardner & Jason R. Finkelstein - Construction Executive
In today’s ever-evolving world of employment law, it is far from an easy task for construction industry employers to operate their business while successfully navigating all of the potential legal potholes that continue to abound and multiply seemingly with every passing day. This is particularly true in the face of the onslaught of claims lodged by current and former employees in recent years for alleged unpaid wages. While there may not be a “sure bet” way of avoiding such claims, one tool that employers should strongly consider in their arsenal are arbitration and class action waiver agreements. To that end, last year, the United States Supreme Court rendered its ground-breaking decision in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018). In Epic Systems, the Supreme Court held that arbitration agreements containing class and collective action waivers of wage and hour disputes are enforceable. At the time of the decision, a split of authority existed among courts across the country as to whether such agreements were viable. On the one hand, several courts contended that class waivers unfairly violated employees’ rights to collectively bargain under the National Labor Relations Act. On the other hand, many other courts were finding that such agreements were fully enforceable and supported by the policies promoted under the Federal Arbitration Act. The Epic Systems Court sided with this latter viewpoint, concluding that the FAA’s clear policy promoting arbitration as a dispute resolution mechanism and private parties’ rights to freely negotiate contracts outweighed any potential arguments against such agreements under the NLRA. With wage and hour lawsuits being filed against construction industry employers practically daily, the Epic Systems decision is critically important. Construction employers can now freely enter into arbitration and class waiver agreements with their laborers and thereby potentially limit the cost, expense and exposure of fighting such actions in a public forum on a collective or class-wide basis. To be clear, such agreements will not eliminate employees from bringing such wage and hour claims entirely, nor should the use of those agreements signal to employers that they need not make every good-faith effort to comply with their obligations under the Federal Labor Standards Act and/or any applicable state wage and hour laws. But the reality is that arbitration and class waiver agreements can work to avoid tens or hundreds or even thousands of employees from banding together in some of the massive wage and hour lawsuits being filed across the country. Instead, employers can require that those legal battles be conducted by a single plaintiff in a more controlled environment before an arbitrator (or panel of arbitrators). Reprinted courtesy of Brian L. Gardner & Jason R. Finkelstein, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Gardner may be contacted at bgardner@coleschotz.com Mr. Finkelstein may be contacted at jfinkelstein@coleschotz.com Read the court decision
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Affirmed: Nationwide Acted in Bad Faith by Failing to Settle Within Limits

July 19, 2017 — Bethany Barrese – Saxe Doernberger & Vita, P.C.
The Eleventh Circuit recently affirmed that Nationwide acted in bad faith by refusing to settle a claim against its insured for the policy limits, exposing the policyholder to an excess verdict.1 The case arose out of a 2005 automobile accident where Seung Park, who was insured by Nationwide, struck and killed another driver, Stacey Camacho. Shortly after the accident, Ms. Camacho’s estate issued a time-limited demand for the full limits of the policy Nationwide issued to Mr. Park, $100,000, to settle the case. After the deadline to respond to the demand expired, Nationwide rejected the demand and made a counteroffer. A settlement could not be reached and a wrongful death suit was filed against Mr. Park, resulting in a massive jury verdict of $5.83 million. Following the jury verdict, Mr. Park assigned his rights against Nationwide to Ms. Camacho’s estate, which then filed claims for negligence and bad faith failure to settle against Nationwide. The case was tried to a jury, which found in favor of the estate. Read the court decision
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Reprinted courtesy of Bethany Barrese, Saxe Doernberger & Vita, P.C.
Ms. Barrese may be contacted at blb@sdvlaw.com

Insurer's Motion for Summary Judgment on Business Interruption Claim Denied

September 12, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The insurer's motion to cap a potential business interruption claim after the insured failed to provide documentation was denied. Lake Charles Instruments Inc. v. Scottsdale Ins. Co., 2022 U.S. Dist. LEXIS 116802 (W.D. La. July 2, 2022). Plaintiff operated a business that was damaged during Hurricane Laura on August 27, 2020, and subsequently by Hurricane Delta on October 9, 2020. Plaintiff had a commercial property policy issued by Scottsdale that provided business income coverage of up to $500,000. After Hurricane Laura, plaintiff submitted a claim. Plaintiff requested an advance. Scottsdale paid $50,000 on the business interruption (BI) claim while reserving rights to require full compliance with the policy, including submission of appropriate documentation. Scottsdale continued to request documentation, but none was received. Plaintiff also failed to provide documentation for its BI claim after Hurricane Delta. When documentation was finally provided, Scottsdale disputed that the documentation showed a BI claim that exceeded policy limits. Scottsdale determined the BI claim was below the policy limits. 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

I.M. Pei, Architect Who Designed Louvre Pyramid, Dies at 102

July 01, 2019 — James S. Russell - Bloomberg
I.M. Pei, a dominant figure in American architecture for more than three decades who designed the Louvre’s crystal pyramid and the angular East Building of Washington’s National Gallery of Art, has died. He was 102. His son Li Chung Pei said on Thursday that his father had died overnight, the New York Times reported. Pei gave “this century some of its most beautiful interior spaces and exterior forms,” said the jury of the Pritzker Architecture Prize, which Pei won in 1983. Though reserved and supremely diplomatic, Pei’s face, always crowned by round thick-rimmed glasses, could break unexpectedly into a wide, dazzling smile. He approached clients with charm and a quick wit, and they usually succumbed happily. Read the court decision
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Reprinted courtesy of James S. Russell, Bloomberg

ASCE Statement on Congress Passage of National Debt Limit Suspension

June 12, 2023 — The American Society of Civil Engineers
The following is a statement by Tom Smith, Executive Director, American Society of Civil Engineers (ASCE): WASHINGTON, D.C. – The American Society of Civil Engineers (ASCE) applauds Congress for passing a measure to avoid a U.S. debt default while safeguarding the critical funding allotments for our nation's infrastructure from the Infrastructure Investment and Jobs Act (IIJA). The bipartisan Fiscal Responsibility Act of 2023 (H.R. 3746) will not only protect funding from the IIJA, but it also takes steps to advance permitting reform, a major priority for ASCE and the civil engineering community. Streamlining permitting is crucial to ensuring we make the most of available funding mechanisms. ASCE is pleased to see that many elements of the BUILDER Act made it into the debt ceiling suspension, including setting deadlines for environmental reviews and providing clarity around permitting requirements. Although further actions are needed to streamline these processes, the Fiscal Responsibility Act is a crucial first step towards implementing much-needed permitting reform to keep valuable projects moving and bring benefits to communities across the country. ASCE once again applauds Congress and the Administration for taking these necessary steps to protect the U.S. economy and infrastructure systems. 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 or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel. Read the court decision
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Empire State Building Owners Sue Photographer for Topless Photo Shoot

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
USA Today reports that the owners of New York’s Empire State Building are suing photographer Allen Henson for taking pictures of a topless woman on the sky scraper’s observation deck. “The owners claim Henson damaged the building's reputation as a safe, family-friendly attraction when he took photos of the model in August,” according to USA Today. Henson allegedly did not ask the owners for permission prior to the shoot. Henson retorted that he took the photos when children were not present, and the pictures do not have any “commercial value; he just posted them on social media.” Read the court decision
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Punchlist: The News We Didn’t Quite Get To – May 2016

May 12, 2016 — Garret Murai – California Construction Law Blog
If you’re a solar contractor make sure you don’t get burned. The California Contractors State License Board (“CSLB”) is taking a closer look at solar contractors as the industry grows in the Golden State. Only contractors holding a Class “A” Engineering, Class “B” General Contractor, or Class C-46 Solar license can perform solar construction and installation. The CSLB has clarified that C-39 Roofing contractors can install installation as part of an overall roofing job. The CSLB considers such insulation work as “incidental and supplemental” under Section 831 of the California Code of Regulations and does not require a separate C-2 Insulation and Acoustical contractor license. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Vacant Property and the Right of Redemption in Pennsylvania

April 06, 2016 — Suzanne Prybella – White and Williams LLP
In Pennsylvania, pursuant to the Municipal Claims and Tax Liens Act (53 P.S. §7293(a)) (the Act), the owner of a property sold under a tax or municipal claim may redeem the sold property at any time within nine months after the date of acknowledgment of the sheriff's deed by, in general, paying the amount of the debt. However, there is a caveat contained in the Act with respect to vacant property, which states that “there shall be no redemption of vacant property by any person after the date of the acknowledgment of the sheriff's deed.” (53 P.S. §7293(c)). In Brentwood Borough School District v. HSBC Bank USA, N.A., 111 A.3d 807 (Pa. Commw. Ct. 2015), a case of first impression before the Commonwealth Court of Pennsylvania, the court addressed the definition of “vacant property” under the Act and the timing of a petitioner to invoke the right of redemption with respect to vacant property. Read the court decision
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Reprinted courtesy of Suzanne Prybella, White and Williams LLP
Ms. Prybella may be contacted at prybellas@whiteandwilliams.com

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