VOSH Jumps Into the Employee Misclassification Pool
July 30, 2015 —
Christopher G. Hill – Construction Law MusingsThe proper classification of workers by construction companies has been on the radar of the Department of Labor for both the US and Virginia governments for quite a while. While most of the misclassification is innocent and not done to create issues, there have been enough instances of purposeful misclassification of certain workers as independent contractors (thus avoiding workers comp and other payroll expenses) that innocent contractors have born the brunt of these issues through increased payroll costs over those that misclassify (in the form of necessarily higher bids, higher overhead, etc.).
As an additional deterrent to improper classification of workers, the Virginia Department of Labor and Industry has issued guidelines for what will occur in Virginia Department of Safety and Health (VOSH) cases.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Bert L. Howe & Associates Brings Professional Development Series to Their Houston Office
May 19, 2014 —
Beverley BevenFlorez-CDJ STAFFBHA’s Professional Development Series provides seminar attendees with a heightened level of knowledge and understanding on a wide range of subjects covering construction and construction defect litigation, tailored to the unique needs of local counsel and insureds.
The next seminar in this series, THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION, will be presented on June 13th.
This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.0 credit hours, of which 0.0 credit hours will apply to legal ethics/professional responsibility credit.
The seminar will be presented by Don MacGregor, general contractor and project manager, at BHA’s Houston office during the noontime hour, and luncheon will be provided. As with all BHA Professional Development activities, there is no cost for participation.
Water intrusion through doors, windows and roofing systems, as well as soil and foundation-related movement, and the resultant damage associated therewith, are the triggering effects for the vast majority of homeowner complaints today and serve as the basis for most residential construction defect litigation.
The graphic and animation-supported workshop/lecture activity will focus on the residential construction process, an examination of associated damages most often encountered when investigating construction defect claims, and the inter-relationships between the developer, general contractor, sub trades and design professionals.
Typical plaintiff homeowner/HOA expert allegations will be examined in connection with those building components most frequently associated with construction defect and claims litigation.
The workshop will examine:
* Typical construction materials, and terminology associated with residential construction
* The installation process and sequencing of major construction elements, including interrelationship with other building assemblies
* The parties (subcontractors) typically associated with major construction assemblies and components
* The various ASTM standard testing protocols utilized to field test buildings
* An analysis of exposure/allocation to responsible parties
Attendance at THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION seminar will provide the attendee with:
* A greater understanding of the terms and conditions encountered when dealing with common construction defect issues
* A greater understanding of contractual scopes of work encountered when reviewing construction contract documents
* The ability to identify, both quickly and accurately, potentially responsible parties
* An understanding of damages most often associated with construction defects, as well as a greater ability to identify conditions triggering coverage
* Assistance in the satisfaction of important continuing education requirements.
Course #: 901290467
Sponsor #: 14152
BHA Houston Office
800 Town & Country Blvd.
Suite 300
Houston, TX 77024
To register for the event, please email Don MacGregor at dmac@berthowe.com.
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Deference Given To Procuring Public Agency Regarding Material Deviation
April 10, 2019 —
David Adelstein - Florida Construction Legal UpdatesDeference will be given to a procuring public agency in a bid protest, particularly when the issue involves whether a bid is non-responsive and constitutes a material deviation from the solicitation. You do not believe me? Perhaps you will after this holding in Biscayne Marine Partners, LLC v. City of Miami, Florida, 44 Fla.L.Weekly D467a (Fla. 3d DCA 2019):
Consequently, no principle of law is clearly established…as to any obligation of the trial court (and, by analogy, an administrative hearing officer) [in a bid protest] to decide or to defer [whether a bid constitutes a material deviation from the solicitation]. If anything, the existing and clearly established principle of law inclines toward judicial deference in public agency competitive bidding disputes when the agency has exercised it discretion absent illegality, fraud, oppression or misconduct.
I do not know about you, but that last underlined sentence is pretty strong language regarding judicial deference!
In this case, Miami (the procuring public agency) issued a Request for Proposals (RFP) for the redevelopment and lease of waterfront property, for the operation of a marina, boatyard, restaurant, wet slips, and a dry storage facility on the property. Miami issued five addenda to the RFP. There were three bidders.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Colorado Court of Appeals Defines “Substantial Completion” for Subcontractors’ Work so as to Shorten the Period of Time in Which They Can Be Sued
October 20, 2016 —
David M. McLain – Colorado Construction Litigation BlogOver the past few years, there has been a battle raging on in district courts and arbitration hearing rooms throughout Colorado regarding when a subcontractor’s work is to be deemed “substantially complete,” for purposes of triggering Colorado’s six-year statute of repose. C.R.S. § 13-80-104 states, in pertinent part:
Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.
* * *
(2) In case any such cause of action arises during the fifth or sixth year after substantial completion of the improvement to real property, said action shall be brought within two years after the date upon which said cause of action arises.
C.R.S. § 13-80-104 (emphasis added).
As the battle raged on at the trial court level, subcontractors and design professionals argued that their work should be deemed “substantially complete” when they finished their discrete scope of work within a project. Developers and general contractors, seeking to maintain third-party claims against the subcontractors and design professionals, typically argued either that the subcontractors’ and design professionals’ work should be deemed “substantially complete” upon the issuance of the final certificate of occupancy on the project, or upon the issuance of the final certificate of occupancy for the last building within a project on which the subcontractor or design professional worked. Trial court judges and arbitrators have been split on this issue, with perhaps a slight majority favoring one or the other approaches advocated by developers and general contractors, that the subcontractors’ and design professionals’ work is “substantially complete” upon the issuance of the last certificate of occupancy in a project (the minority view) or upon the issuance of the last certificate of occupancy for the last building within a project on which the subcontractor of design professional worked (the majority view).
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Congratulations Bryan Stofferahn, August Hotchkin, and Eileen Gaisford on Their Promotion to Partner!
April 19, 2021 —
Bremer Whyte Brown & O’MearaBryan Stofferahn has been with BWB&O’s Oakland office since 2016 and has been practicing law since 2002. Mr. Stofferahn focuses his practice on insurance defense matters and was lead counsel on the Millennium Tower construction defect case in San Francisco, which was the largest construction defect action in the country.
Outside of work, Bryan is passionate about traveling the world with his wife Claire and has finished in last place in two separate chili cook-offs (pre-COVID, of course).
August Hotchkin has been with BWB&O since 2013 and helped open the Reno office located in Northern Nevada in 2016. He is duly licensed in both Nevada and California, handling various legal matters, especially complex litigation, throughout Northern Nevada and Northern California.
Mr. Hotchkin has taken several cases to trial, including a successful defense verdict on a wrongful death matter. He has also argued countless dispositive motions as well as having cases heard at the Appellate level.
During his free time, Mr. Hotchkin enjoys golfing, snowboarding, and spending time with his family and friends, especially up at Lake Tahoe.
Eileen Gaisford has been with BWB&O’s Woodland Hill’s office for almost a decade and is licensed to practice law in California.
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Bremer Whyte Brown & O'Meara LLP
"Is the Defective Work Covered by Insurance?"
January 04, 2018 —
David Adelstein – Florida Construction Legal UpdatesOriginally Published by CDJ on March 16, 2017
I have been asked this question quite a bit from owners, in particular: “The contractor committed defective work, but it has insurance. Doesn’t the insurance cover this defective work?” Ugh, NO! There is this misconception that liability insurance, specifically, is the be-all-and-end-all when it comes to defective work. This could not be further from the truth. Don’t get me wrong – liability insurance is important; it is very, very important. However, liability insurance does not cover the risk of an insured’s defective work. Rather, liability insurance is designed to cover the risk of resulting damage: damage resulting from defective work. This is a significant distinction and one that is often overlooked. This is also why anyone encountering defective work should be working with an attorney to maximize insurance coverage or realize that the issue is not covered by insurance.
Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Property Damage to Non-Defective Work Is Covered
February 18, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe New Hampshire Supreme Court found some of the property damage evolving from the insured's portion of the work was covered under its liability policy. Cogswell Farm Condo. Ass'n v. Tower Group, Inc., 2015 N.H. LEXIS 3 (N.H. Jan. 13, 2015).
Lemery Building Company, Inc. constructed and developed 24 residential condominium units. After units were sold, the Cogswell Farm Condominium Association sued Lemery, asserting that the "weather barrier" components of the units were defectively constructed and resulted in damage to the units due to water leaks. Cogswell then sued its insurer, Tower Group, Inc., seeking a declaratory judgment that its claims against Lemery were covered.
The trial court eventually determined that exclusions J (1) and J (6) both applied to exclude coverage. Exclusion J (1) excluded coverage for "property damage" to property that Lemery "owns, rents, or occupies." Exclusion J (6) excluded coverage for property damage to "[t] hat particular part of any property that must be restored, repaired or replaced because [Lemery's] work was incorrectly performed on it."
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Intentionally Set Atlanta Interstate Fire Closes Artery Until June
April 05, 2017 —
Engineering News-RecordCrews from C.W. Matthews Contracting Co., Marietta, Ga., are removing debris from an Interstate 85 bridge in Atlanta that collapsed during a March 30 rush-hour fire. No injuries were reported, but the incident forced an extended closure of the highway section. Investigators say the fire was intentionally set inside a fenced Georgia Dept. of Transportation surplus equipment storage area beneath the structure, and it intensified after spreading to a stockpile of polyethylene and fiberglass conduit. Flames and high temperatures subsequently compromised the bridge’s structural integrity. Authorities have charged one individual with arson and first-degree criminal damage to property, while two others were cited for criminal trespass.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
