Sick Leave, Paid Time Off, and the Families First Coronavirus Response Act
April 20, 2020 —
Garret Murai - California Construction Law BlogUnemployment claims hit a historic high this past week as 3.3 million Americans filed for unemployment benefits. To give you some context, this is not only the highest number of unemployment claims ever filed, it is five times higher than the previous record of 695,000 unemployment claims in 1982.
Restaurants, hotels, airlines and other businesses have begun to layoff or furlough workers. According to a survey conducted by the Associated General Contractors of America this past week, 39% of respondents reported that project owners have halted or cancelled construction projects due to deteriorating economic conditions, 45% reported project delays or disruptions, and 23% reported supply chain disruptions.
While the construction industry likely won’t be impacted nearly to the same degree as the retail sector has, some involved in the construction industry may nevertheless be faced with the prospect of having to lay off or furlough workers as “shelter in place” orders are extended. If you’re faced with that situation here are a few things to remember:
Paid Sick Leave
Under California law, nearly all employers are required to provide paid sick leave to employees who work for 30 or more days in a given year. Paid sick leave can be used by an employee for illnesses, including COVID-19, the diagnosis, care, or treatment of existing health conditions, and preventative care for the employee or employee’s family member. The important thing to remember here is that use of paid sick leave is an employee’s choice. While an employer, concerned that an employee may have contracted COVID-19, may require that an employee not come to the office, the employer cannot force such an employee to use his or her paid sick leave. For more information, the California Labor Commissioner has created a webpage specific to COVID 19.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Understanding Insurance Disputes in Construction Defect Litigation: A Review of Acuity v. Kinsale
December 17, 2024 —
David M. McLain – Colorado Construction Litigation BlogConstruction projects are inherently complex, and insurance coverage plays a crucial role in managing risks, especially when unforeseen issues arise. The case of Acuity v. Kinsale demonstrates the tangled web of insurance obligations, especially when multiple insurers provide coverage for a single event. This case, involving Monarch Stucco, Inc., Acuity, and Kinsale Insurance Company, sheds light on the challenges that contractors, subcontractors, and insurers may face when disputes over liability and coverage occur.
The Background of the Case
At the heart of this dispute lies a construction defect at a retirement community project in Lakewood, Colorado. Monarch Stucco, Inc. (“Monarch”), a subcontractor hired by GH Phipps Construction Company (“Phipps”), was responsible for stucco work on the project. Unfortunately, defects in the building’s envelope system, particularly Monarch’s stucco work, led to significant damage and costly repairs.
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
New Standard Addresses Wind Turbine Construction Safety Requirements and Identifies Hazards
October 09, 2018 —
Christopher Daniels - Construction ExecutiveAmerican Society of Safety Professionals’ industry consensus standard, ANSI/ASSP A10.21 – 2018 Safety Requirements for Safe Construction and Demolition of Wind Generation/Turbine Facilities, is the first standard to identify and address hazards specific to wind turbine construction. It includes nearly a dozen appendices that provide additional consideration and guidance for hazards that vary between projects, turbines and geographical areas.
The new A10.21 standard starts by requiring a site hazard identification prior to construction commencing. It establishes the general contractor as the responsible party for site hazard identification assessment. This is because the general contractor is usually one of the first entities on site able to assess the various challenges/concerns such as: geography, utilities, environmental, etc. This assessment is usually done by driving the project site and identifying GPS coordinates of specific challenges.
Reprinted courtesy of
Christopher Daniels, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Daniels may be contacted at
chris.daniels@mortenson.com
New York Shuts Down Majority of Construction
March 30, 2020 —
Laura Bourgeois LoBue & Matthew D. Stockwell - Gravel2Gavel Construction & Real Estate Law BlogDue to pressure from construction workers, officials, and some construction workers having tested positive for COVID-19, the Empire State Development Corp. (acting on behalf of Governor Cuomo) has frozen all construction in New York today, with the exception of work on hospitals and health care facilities, transit facilities, roads and bridges, affordable housing and homeless shelters.
As a result, commercial construction and condominium projects are on hold, with the exception of work that must be completed to prevent unsafe conditions. Until now, construction has been considered “essential” in New York.
Reprinted courtesy of
Laura Bourgeois LoBue, Pillsbury and
Matthew D. Stockwell, Pillsbury
Ms. LoBue may be contacted at laura.lobue@pillsburylaw.com
Mr. Stockwell may be contacted at matthew.stockwell@pillsburylaw.com
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Strategy for Enforcement of Dispute Resolution Rights
May 30, 2018 —
Whitney Judson - Smith CurrieArbitration and litigation each offer their own benefits and drawbacks to litigants looking to resolve a construction dispute. A careful analysis of these benefits and drawbacks may be helpful in determining whether to avoid or pursue either dispute resolution process. Arbitration is oftentimes regarded as the more economically feasible dispute resolution option and is therefore attractive to many construction dispute litigants. Although arbitration may prove to be less expensive than litigation in the long run, some litigants may prefer to file a case in court because the upfront filing fees in litigation are less expensive than the filing fees of arbitration.
Litigants may also prefer the decision makers of one process for dispute resolution over another. Arbitrators in a construction dispute oftentimes have a background in the construction industry, whereas a judge or jury may not. Strategy may dictate whether the preferable decision maker should have experience within the construction industry or be free of any construction industry knowledge and possible biases. The finality of decisions may also be a reason to strategically choose one dispute resolution process over another. Arbitration decisions are overturned only under very narrow and specific circumstances. The losing party in litigation however, has a right to appeal decisions to a higher court and has more options for recourse when the findings of the court are not supported by the evidence or the law.
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Whitney Judson, Smith CurrieMs. Judson may be contacted at
wtjudson@smithcurrie.com
Nevada Provides Independant Counsel When Conflict Arises Between Insurer and Insured
December 02, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe Nevada Supreme Court, responding to certified questions, determined that an insurer must provide independent counsel for its insured when a conflict of interest arises between the insurer and insured. State Farm Mut. Auto. Ins. Co. v. Hansen, 2015 Nev. LEXIS 86 (Nev. Sept. 24, 2015).
The insured struck the vehicle of another driver, Hansen. Hansen sued the insured alleging both negligence and various intentional torts. State Farm agreed to defend under a reservation of rights. The reservation of rights letter reserved the right to deny coverage for liabiltiy resulting from intentional acts and punitive damages.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Arbitration Clause Found Ambiguous in Construction Defect Case
October 28, 2011 —
CDJ STAFFThe California Court of Appeals ruled on September 28 in the case of Burch v. Premier Homes. Ms. Burch bought a home after negotiating various addendums to the contract. The contract was a standard California Association of Realtors contract to which both the buyer and seller made additions. At issue in this case was paragraph 17 of the contract which included that “Buyer and Seller agree that any dispute or claim in Law or equity arising between them out of this Agreement or resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration.”
The seller/defendant’s Addendum 2 “included provisions relating to the arbitration of disputes that may arise.” Ms. Burch’s realtor, Lisa Morrin, told Burch that “she had never seen a proposed contractual provision that would require a home buyer to agree to arbitrate with a builder over construction defects.” Ms. Burch told Morrin that she did not want to buy the property if she would have to give up her rights under California law.
As part of Addendum 2, the buyer had to buy a warranty from the Home Buyers Warranty Corporation. The sale was held up for a while, as Ms. Burch waited for a copy of the warranty. When she received it, she took further exception to Addendum 2. Scott Warren of Premier Homes said he could not sell the property without Addendum 2. Ms. Burch told her realtor that despite the claims made by Mr. Warren that this was for her benefit, she felt it was more to the benefit of Premier Homes. Don Aberbrook of HBW agreed to the clause, contained in the final sentence of Addendum 2, being struck.
Subsequent to buying the home, Burch submitted a claim concerning construction defects. HBW denied the claim and Burch began an action against the defendants. Premier filed a motion to compel arbitration which Burch opposed.
The trial court ruled that the striking out of the arbitration clause at the end of Addendum 2 “created a conflict with respect to the parties’ intent as to the scope of arbitration.” The trial court found that “the parties’ intention was to preserve Burch’s right to make state law claims including her right to a jury trial for any non-warranty claims against the builder.”
The appeals court in their ruling looked at the standard of review and concluded that the purchase agreement was ambiguous and that extrinsic evidence was required to resolve that ambiguity. As the contract contained contradictory provisions as to whether or not arbitration was required, it was necessary for the trial court to examine these claims. The appeals court found that the evidence supported the conclusions of the trial court.
Finally, the appeals court found that “there was no valid agreement to arbitrate disputes.” The court noted that arbitration can only happen by mutual consent and “it is clear that Burch did not enter into an agreement to arbitrate any construction defect disputes she might have.”
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Updates to Residential Landlord Tenant Law
October 18, 2021 —
Lawrence S. Glosser - Ahlers, Cressman & SleightOver the past several months, there have been major updates to the residential landlord tenant laws in Washington State and Seattle. There are also some remaining moratoria or eviction restrictions in Washington and Seattle. The following is a general overview of the changes.
Eviction Moratoria:
Washington State
Governor Inslee’s state-wide eviction moratorium technically ended on June 30, 2021. However, in late June 2021, Governor Inslee announced a “bridge” proclamation between the eviction moratorium and the housing stability programs put in place by the Washington State Legislature. The bridge is effective July 1 through September 30. The goal of the bridge period was to protect tenants from evictions for non-payment of rent to allow local governments to set up distribution programs for funds. More than $650 million of federal relief dollars allocated to assist renters was predicted to be available beginning in July. This is in addition to the $500 million previously released by the Department of Commerce to local governments for rental assistance and will help more than 80,000 landlords and renters. However, insofar as many localities have not established distribution protocols, the bridge period was instituted to allow time for those programs to be set up in various parts of the state.
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Lawrence S. Glosser, Ahlers, Cressman & SleightMr. Glosser may be contacted at
larry.glosser@acslawyers.com
