Design Immunity of Public Entities: Sometimes Designs, Like Recipes, are Best Left Alone
October 21, 2015 —
Garret Murai – California Construction Law BlogApril 23, 1985 will live in infamy.
The Coca Cola Company, responding to diminishing sales as its “sweeter” rival Pepsi-Cola gained market share, announced that it was changing its “secret” recipe and introducing a new kind of Coke, referred to by the public simply as, “new Coke.”
The reaction was unexpected.
People around the world began hoarding “old Coke.” Protest groups, such as the Society for the Preservation of the Real Thing and Old Cola Drinkers of America, sprang up around the county. Angry letters addressed to “Chief Dodo” were sent to Coca-Cola’s chief executive officer. And even Fidel Castro, a longtime Coca-Cola drinker, joined the backlash calling “new Coke” a “sign of American capital decadence.”
By July it was over.
Coca-Cola announced that it would once again produce “old Coke,” and in a sign (I’m sure Fidel Castro would say) of American arrogance, announced that “old Coke” would be produced under the name “Coca-Cola Classic” alongside “new Coke” which would continue to be called “Coca-Cola” suggesting that “new Coke” would be the Coke of today as well as the future. By 1992, however, “new Coke” whose sales dwindled to 3% of market share was demoted to “Coke II” and by 2002 was discontinued entirely.
The moral of the story: Change the recipe at your own risk.
Castro v. City of Thousand Oaks
In the next case, Castro v. City of Thousand Oaks, Case No. B258649, California Court of Appeals for the Second District (August 31, 2015), the corollary might well be change the recipe design at your own risk.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Client Alert: Naming of Known and Unknown Defendants in Initial Complaints: A Cautionary Tale
September 24, 2014 —
R. Bryan Martin & Whitney L. Stefko – Haight Brown & Bonesteel LLPOn September 12, 2014, the Ninth Circuit Court of Appeals, in Butler v. National Community Renaissance of California, upheld a district court's dismissal of certain defendants named in amended complaints, affirming the necessity of naming those known and unknown defendants in Plaintiff's original complaint.
In April 2009, Plaintiff Zina Butler filed an action in federal district court, naming a single defendant, National Community Renaissance Corporation ("National"), for an alleged warrantless search of Plaintiff's apartment on April 18, 2007. The single page complaint asserted that the apartment manager provided a Section 8 investigator, a City employee and Sherriff deputies keys to Plaintiff's apartment and conducted a search in violation of her Fourth Amendment rights. Shortly after, Plaintiff filed a first amended complaint, with the only change being the addition of defendant, the Housing Authority of the County of Los Angeles ("HACoLA") in the caption. In May 2009, the court (on its own accord) dismissed the first amended complaint with leave to amend as "it [was] unclear whom Plaintiff intend[ed] to sue."
In June 2009, Plaintiff filed a second amended complaint, identifying National and HACoLA in the caption as defendants, but separately identifying several other individuals and entities allegedly involved in the incident occurring in April of 2007 in the complaint's statement of facts. The Court, once again, dismissed the second amended complaint with leave to amend for the same reasons it dismissed Plaintiff's first amended complaint.
Reprinted courtesy of
R. Bryan Martin, Haight Brown & Bonesteel LLP and
Whitney L. Stefco, Haight Brown & Bonesteel LLP
Mr. Martin may be contacted at bmartin@hbblaw.com; Ms. Stefko may be contacted at wstefko@hbblaw.com
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New York’s Comprehensive Insurance Disclosure Act Imposes Increased Disclosure Requirements On Defendants at the Beginning of Lawsuits
February 07, 2022 —
Craig Rokuson & Lisa M. Rolle - Traub Lieberman Insurance Law BlogOn December 31, 2021, New York Governor Kathy Hochul signed into law the Comprehensive Insurance Disclosure Act, which amends Section 3101(f) of the Civil Practice Law & Rules (CPLR) to require the automatic disclosure of insurance-related items within sixty days of the filing of an answer in a civil suit. For lawsuits pending as of the effective date of the Act, the disclosures required by Section 3101(f) must be provided by March 1, 2022.
Pursuant to amended Section 3101(f), defendants (including third-party defendants, cross-claim defendants, and counterclaim defendants) must provide the following information to plaintiffs within sixty days of answering the affirmative pleading, accompanied with a certification from both the defendant and his/her/their/its defense counsel that the disclosures are accurate and complete:
- Copies of all insurance policies that may be liable to satisfy a judgment in the lawsuit, including the insurance application.
- The contact information of any individuals responsible for adjusting the claim on each policy, including his/her/their phone number and email address. If a TPA is involved, his/her/their contact information must also be disclosed.
Reprinted courtesy of
Craig Rokuson, Traub Lieberman and
Lisa M. Rolle, Traub Lieberman
Mr. Rokuson may be contacted at crokuson@tlsslaw.com
Ms. Rolle may be contacted at lrolle@tlsslaw.com
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Catching Killer Clauses in Contract Negotiations
January 29, 2024 —
James T. Dixon - Construction ExecutiveRisk-management personnel who are in the business of reviewing and negotiating construction contracts have some simple tools at their disposal to make sure their edits are addressing all of the killer risk-shifting clauses in those contracts. One of those is the index to that document. But not all authors of construction contract documents are kind enough to include an exhaustive index in their form agreements.
One of the most popular sets of general conditions, the A201 General Conditions published by the American Institute of Architects, includes one that is fairly comprehensive. It identifies the six terms that include a reference to indemnification, for example. On the other end of the spectrum are the innumerable custom forms created by public and private project owners, and these rarely have an index.
Even more powerful than an index is the search or find functions that are available in word processing applications and now in Adobe, the publisher of documents in portable document format, more commonly known as PDF. But with PDF documents, one must be careful to make sure the document under review is in fact searchable. Because every letter counts, it is important to have full confidence in the integrity of the search.
Reprinted courtesy of
James T. Dixon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Employee Screening and Testing in the Covid-19 Era: Getting Back to Work
August 10, 2020 —
Aaron C. Schlesinger & Shannon D. Azzaro - Peckar & AbramsonCurrently Available Workplace Protocols for Employers
Employers seeking to minimize the risk of COVID-19 transmission in the workplace should consider from among the three currently available protocols: Written Questionnaires; Temperature Checks; and Viral or Diagnostic Testing.
When implementing a screening or testing protocol, employers should explain the following in writing to employees: (1) the specific screening process or test utilized by the employer; (2) employee compliance expectations and any consequences for a refusal to participate; (3) how employee privacy will be protected; (4) if screening, the general benchmarks that indicate the employee has “passed” (e.g., temperature below 100.4ºF, per CDC guidelines); and (5) the outcome of an unsuccessful screen or test (e.g., being sent home from the workplace). Employers must also ensure that those administering the screening and/or testing are properly trained, and that appropriate written acknowledgements are obtained from employees consenting to the applicable protocol.
Reprinted courtesy of
Aaron C. Schlesinger, Peckar & Abramson and
Shannon D. Azzaro, Peckar & Abramson
Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com
Ms. Azzaro may be contacted at sazzaro@pecklaw.com
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AAA Revises Construction Industry Arbitration Rules and Mediation Procedures
July 22, 2024 —
Patrick McKnight - The Dispute ResolverThe American Arbitration Association (AAA) recently revised its Construction Industry Arbitration Rules and Mediation Procedures (“the Rules”). Several notable changes went into effect March 1, 2024, involving the scope of confidentiality, regular and fast track procedures, and updates to certain monetary thresholds.
I. Revisions to Regular Track Procedures
Rule 45: Confidentiality
For the first time, confidentiality is now the default standard. Under Rule 45(a), arbitrators must keep all matters confidential unless otherwise required by law, court order or the agreement of the parties. Rule 45(b) allows a mediator to issue confidentiality orders and “take measures for protecting trade secrets and confidential information.”
Rule 7: Consolidation and Joinder
Under the new provisions, consolidation and joinder requests must be filed before confirmation of the Merits Arbitrator’s appointment. This language eliminates a previous option that allowed confirmation up to 90 days after filing of such requests. A failure to timely respond to a joinder request will result in a waiver of objections. Now, a party must establish both good cause and prejudice for a successful joinder request after confirmation of the arbitrator.
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Patrick McKnight, Fox Rothschild LLPMr. McKnight may be contacted at
pmcknight@foxrothschild.com
Personal Thoughts on Construction Mediation
September 20, 2021 —
Christopher G. Hill - Construction Law MusingsConstruction Mediation WorksAs I left a mediation last week at 8:30 at night, I realized something that I knew all along. Mediation works.
Why does mediation work? For several reasons that I can think of.
The first, and likely most important is that lawyers are expensive. In most construction cases, we charge by the hour and those hours build up, especially close to a trial date. A mediated settlement can avoid this sharp uptick in attorney fees that always occurs in the last month before trial. Therefore the earlier the better.
The second is the flexibility to make a business decision. Commercial contractors and subcontractors are in a business, and they should be making business decisions. While one such decision can be to go to litigation; litigation is not always the best solution from a financial, or stress perspective. Construction professionals, with the assistance of construction attorneys, can come up with a creative way to deal with a problem and solve it.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Don’t Put All Your Eggs in the Silent-Cyber Basket
August 07, 2022 —
William P. Sowers, Jr. & Michael S. Levine - Hunton Insurance Recovery BlogThe Eastern District of Pennsylvania recently gave another reminder why cyber insurance should be part of any comprehensive insurance portfolio. In Construction Financial Administration Services, LLC v. Federal Insurance Company, No. 19-0020 (E.D. Pa. June 9, 2022), the court rejected a policyholder’s attempt to find coverage under its professional liability insurance for a social engineering incident that defrauded over $1 million.
Construction Financial Administrative Services, which goes by CFAS, disburses funds to contractors. One of its clients, SWF Constructors, was hacked, and a bad actor posing as the client asked CFAS to distribute $600,000 to a sham third party. John Follmer, an executive at CFAS and the only person authorized to approve distribution of funds, approved it. The next day, the bad actor, again posing as the client, asked Follmer to transfer an additional $700,000. Follmer approved that distribution too.
Reprinted courtesy of
William P. Sowers, Jr., Hunton Andrews Kurth and
Michael S. Levine, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
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