Constructive Suspension (Suspension Outside of an Express Order)
December 13, 2022 —
David Adelstein - Florida Construction Legal UpdatesIn the federal procurement arena, there is a concept known as “constructive suspension.” Constructive suspension, while known in the federal arena, should reasonably apply to all projects when work is stopped outside of an express order to stop the work based on the law below. An unreasonable suspension is an unreasonable suspension and an express order to stop the work does not negate the effects of what really amounts to a suspension.
“Constructive suspension occurs when work is stopped absent an express order by the contracting officer and the government is found to be responsible for the work stoppage.” P.R. Burke Corp. v. U.S., 277 F.3d 1346, 1359 (Fed. Cir. 2002). The government delay must be unreasonable to support a constructive acceleration claim. Id.
“To demonstrate such a constructive suspension of work, the contractor must show that the delay (1) was for an ‘unreasonable length of time,’ (2) was proximately caused by the government’s actions, and (3) resulted in some injury to the contractor.” Fireman’s Fund Ins. Co. v. U.S., 2001 WL 36415627, *6 (Fed.Cl. 2001) (citation omitted). “Relative to proving that the delay was directly caused by the government, the contractor must concomitantly show that it was not delayed by any concurrent cause that would have independently generated the delay during the same time period even if it does not predominate over the government’s action as the cause of the delay.” Beauchamp Const. Co. v. U.S., 14 Cl.Ct. 430, 437 (Cl.Ct. 1988).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Wood Product Rotting in New Energy Efficient Homes
January 13, 2014 —
Melissa Zaya-CDJ STAFFBrad Pitt’s Make It Right Foundation may be filing a suit against TimberSIL, a wood manufacturer, as reported by WRAL. The foundation built 100 new homes in the 9th Ward of New Orleans after Hurricane Katrina, and used the TimberSIL wood in 30 of the homes for decks and stairs. Make It Right spokeswoman Taylor Royle told Richard Thompson of WRAL that they chose TimberSIL because of the absence of chemicals, which will allow the wood to be mulched and composted after it has served its purpose.
However, Royle claimed that the wood has begun to rot “despite being guaranteed for 40 years,” according to WRAL. She further alleged that the manufacturer failed to respond to any of the foundation’s attempts to discuss reimbursement of their costs under the forty year product warranty.
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Savera Sandhu Joins Newmeyer Dillion As Partner
March 23, 2020 —
Newmeyer DillionProminent business and real estate law firm Newmeyer Dillion is pleased to announce that
Savera Sandhu has joined the firm's Las Vegas office as a partner. Sandhu's addition formalizes Newmeyer Dillion's
Healthcare practice group, which will draw on the firm's existing strengths and service offerings in the healthcare industry.
"Newmeyer Dillion has been delivering services within the healthcare industry for many years, offering our premier legal services across a large range of sectors," said Office Managing Partner Nathan Owens. "We are excited to welcome Savera to our team, and believe her experience will help us to more broadly service the healthcare industry as we continue to work closely with companies in the Western region."
The firm's Healthcare practice will comprise attorneys from the firm's business, litigation, employment law and real estate practice groups, who have extensive experience advising the healthcare industry in the areas of state and federal regulatory compliance, general business matters, medical malpractice and litigation defense. Newmeyer Dillion offers a range of key legal services to healthcare clients including entrepreneurs, technology companies, physicians, dentists and other healthcare professionals, suppliers, medical device manufacturers, hospitals, physician groups, out-patient and long-term care facilities.
In addition to health care, Sandhu expands the firm's capabilities to service clients in the transportation, finance, entertainment and construction industries.
For over a decade, Sandhu has worked intimately with the healthcare industry as their legal advocate, offering solution-oriented approaches to the business side of healthcare. As a partner with the firm, Sandhu counsels a wide range of corporate and healthcare clients on business and litigation matters throughout the state and nationwide. Embracing the firm's commitment to propel businesses forward, she combines a deep knowledge of commercial litigation with finely-honed experience as a trusted legal advisor to Fortune 100 companies. She also brings a broad perspective to her work with healthcare clients, based on her exceptional knowledge of corporate law, healthcare litigation, and state and federal regulatory matters.
Sandhu believes that her effectiveness as legal counsel is enhanced by her strong commitment to both her profession and to the communities where she lives and works. Dedicated to the tenets of diversity and inclusion rooted in the firm's culture, she has held leadership roles as a long-time member of the Southern Nevada Association of Women Attorneys (SNAWA) and the South Asian Bar Association.
Sandhu received her B.A. from the University of Washington and her J.D. from Seattle University School of Law.
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.
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Wisconsin “property damage” caused by an “occurrence.”
April 04, 2011 —
CDCoverage.comIn American Family Mut. Ins. Co. v. American Girl, Inc., 673 N.W.2d 65 (Wis. 2004), the insured general contractor was hired by the owner to design and build a warehouse on the owner s property. The general contractor hired a soil engineer to do a soil analysis and make site preparation recommendations. The soil engineer determined that the soil conditions were poor and recommended a compression process which the general contractor followed. After the warehouse was completed and the owner took possession, excessive soil settlement caused the foundation to sink which in turn caused structural damage to the warehouse. The warehouse had to be torn down.
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Reprinted courtesy of CDCoverage.com
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Is Your Home Improvement Contract Putting You At Risk?
February 10, 2020 —
Hannah Kreuser - Porter Law GroupIf you are like many contractors, odds are that your home improvement contract (HIC) is not compliant with California law, putting you at risk for disciplinary action, voiding of the contract, and even criminal prosecution.
Generally, the laws allow parties to contract how they wish. However, California HICs are an exception and California Business and Professions Code (BPC) requires much in the way of content, form and formatting for a HIC to meet the legal requirements. This is because California has written its laws to provide broad protections to homeowners when it comes to construction work performed at their residence. However, in attempting to promote this goal, the laws surrounding HICs have produced requirements that are confusing and fail to account for the realities of a home improvement project, making it difficult and uncomfortable for contractors to comply.
A HIC is required for home improvement projects that change a residence or property. Specifically, the law defines a “home improvement” as “the repairing, remodeling, altering, converting, or modernizing of, or adding to, residential property and shall include, but not be limited to, the construction, erection, replacement or improvement of driveways, swimming pools, including spas and hot tubs, terraces, patios, awnings, storm windows, landscaping, fences, porches, garages, fallout shelters, basements, and other improvements of the structures or land which is adjacent to a dwelling house.” (BPC section 7151.) A HIC is not required for new residential construction; for work priced at $500 or less; the sale, installation, and service of a fire alarm or burglar system; or a service and repair contract (which has its own requirements).
When a HIC is used, BPC section 7159 specifies certain content, form, and format requirements, all of which must be followed to produce a compliant HIC. While this article will not discuss all of these requirements, it will discuss some of the problems commonly seen in HICs.
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Hannah Kreuser, Porter Law GroupMs. Kreuser may be contacted at
hkreuser@porterlaw.com
Louisiana Court Holds That Application of Pollution Exclusion Would Lead to Absurd Results
October 21, 2019 —
Sergio F. Oehninger & Daniel Hentschel - Hunton Insurance Recovery BlogA Louisiana court recently denied an excess insurer’s bid for summary judgment, finding that the insurer’s interpretation of a pollution exclusion would lead to “absurd results.”
Central Crude, Inc., a crude oil transporter company, experienced an oil pipeline leak, allegedly causing damage to property belonging to Columbia Gas Transmission Company. Columbia Gas sued Central Crude seeking compensatory damages and injunctive relief to compel remediation of the site. Central Crude sought coverage under a CGL primary insurance policy issued by Liberty Mutual. The insurer initially agreed to cover Central Crude’s “reasonable and necessary costs” relating to the incident, but later refused to defend or indemnify Central Crude for any costs incurred from the incident. As a result, Central Crude brought suit against Liberty Mutual and its excess insurer, Great American, to enforce coverage.
Great American moved for summary judgment arguing coverage was excluded by the excess policy’s pollution exclusion, which precludes coverage for injury “arising out of a discharge of pollutants.” Central Crude responded arguing that the exclusion’s applicability was invalidated or at least rendered ambiguous by the Following Form Endorsements, which reflect an intent to mirror the coverage afforded under the primary Liberty Mutual policy, and because coverage appears to be specifically authorized through the Premises Operations Liability Endorsement.
Reprinted courtesy of
Sergio F. Oehninger, Hunton Andrews Kurth and
Daniel Hentschel, Hunton Andrews Kurth
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com
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Report to Congress Calls for Framework to Cut Post-Quake Recovery Time
February 01, 2021 —
Bruce Buckley - Engineering News-RecordEngineers and government agencies along with model building code and standard developers should work together to create a national framework more focused on earthquake resilience and post-quake recovery time, according to a report delivered to Congress last week. While current seismic codes address life safety, the report says stakeholders should also consider re-occupancy and functional recovery time, taking into account the potential impacts to a community as a whole.
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Bruce Buckley, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Connecticutt Class Action on Collapse Claims Faces Motion to Dismiss
January 02, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court dismissed some insurers from a class action suit alleging failure to provide coverage for collapse claims. Halloran v. Harleysville Preferred Ins. Co., 2018 U.S. Dist. LEXIS 179807 (D. Conn. Oct. 19, 2018).
A class of homeowners brought suit in 2016 against their homeowners insurance companies ("defendants") for failure to cover collapse claims. Plaintiffs alleged they bought their homes between 1984 and 2015. Each of the homes had basement walls that were "crumbling and cracking due to the oxidation of certain minerals contained in the concrete." As a result of the deteriorating concrete, plaintiffs claimed that their basement walls were in a state of collapse.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
