Reporting Requirements for Architects under California Business and Professions Code Section 5588
December 22, 2019 —
Jordan Golden - Gordon & Rees Construction Law BlogBelow is an overview of the changes to California Business and Professions Code Section 5588 and its effect on the reporting requirements, for architects, in the construction industry.
Section 5588 Prior to 2005 Legislative Changes
Section 5588 of the California Business and Professions Code sets forth the reporting requirements for many business professionals including architects. Since 1979, Section 5588 has required architects and their insurers to report to the California Architect Board (the Board) “any settlement or arbitration award in excess of five thousand dollars ($ 5,000) of a claim or action for damages caused by the license holder’s fraud, deceit, negligence, incompetency, or recklessness in practice.”1
The language of the code section left open for interpretation the question of what types of settlement claims must be reported to the Board. Thus, in 2004, the Attorney General of the State of California published an opinion stating that a reportable settlement includes “any agreement resolving all or part of a demand for money which is based upon an insured architect’s alleged wrongful conduct.”2 He then went on to conclude that the only qualifications placed on the term “claim” for purposes of Section 5588 is that “(1) the demand be premised on the license holder’s alleged ‘fraud, deceit, negligence, incompetency, or recklessness in practice,’ and (2) the value of the claim, as measured by the settlement amount or arbitration award, exceeds $5,000.”3
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Jordan Golden, Gordon & Rees Scully Mansukhani
Is Drone Aerial Photography Really Best for Your Construction Projects?
June 09, 2016 —
Sherry and Brett Eklund – Construction Informer BlogIt’s no secret that aerial photographs play an essential role in any construction project. They help with the planning process, assist builders in documenting the progress of a project, provide an opportunity to spot potential issues that would otherwise be missed, capture great marketing images, and more.
It used to be the only way to get sky-view pictures for construction purposes was to hire an aerial photography team with a piloted aircraft. However, a new player has entered the scene – the drone. And whether you choose to hire a professional aerial photography team using a fixed-wing airplane, helicopter, or drone, or choose to go the DIY route, all have a place in the world of construction. But, using drones is complicated and ever evolving, so we’d like to touch on a few key points to help you understand drone aerial photography.
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Sherry and Brett Eklund, Desert View Aerial PhotographyMs. and Mr. Eklund may be contacted at their website http://dvaerialphoto.com/contact/
California Supreme Court Adopts “Vertical Exhaustion” in the Long-Storied Montrose Environmental Coverage Litigation
June 08, 2020 —
Gregory S. Capps & Michael E. DiFebbo - White and Williams LLPOn April 6, 2020, the California Supreme Court issued a decision that held a policyholder is entitled to access available excess coverage under any excess policy once it has exhausted directly underlying excess policies for the same policy period in Montrose Chemical Corporation v. the Superior Court of Los Angeles County, Supreme Court of California, case number S244737. In its unanimous decision adopting this “vertical exhaustion” requirement, the court rejected the “horizontal exhaustion” rule urged by the policyholder’s excess insurers, under which the policyholder would have been able to access an excess policy only after it had exhausted other policies with lower attachment points from every policy period in which the environmental damage resulting in liability occurred.
In 1990, Montrose sought coverage under primary policies and multiple layers of excess policies issued for periods from 1961 through 1985 for environmental damage liabilities arising from its production of insecticide in the Los Angeles area between 1947 and 1982. The ongoing dispute currently arises out of Montrose’s Fifth Amended Complaint which was filed in 2015 seeking declarations concerning exhaustion and the manner in which Montrose may allocate its liabilities across the policies. Each of the excess policies at issue contained a requirement of exhaustion of underlying coverage. The various policies described the applicable underlying coverage in four main ways: (1) some policies contained a schedule of underlying insurance listing all of the underlying policies in the same policy period by insurer name, policy number, and dollar amount; (2) some policies referenced a specific dollar amount of underlying insurance in the same policy period and a schedule of underlying insurance on file with the insurer; (3) some policies referenced a specific dollar amount of underlying insurance in the same policy period and identified one or more of the underlying insurers; and (4) some policies referenced a specific dollar amount of underlying insurance that corresponds with the combined limits of the underlying policies in that policy period. The excess policies also provided, in various ways, that “other insurance” must be exhausted before the excess policy can be accessed.
Reprinted courtesy of
Gregory S. Capps, White and Williams LLP and
Michael E. DiFebbo, White and Williams LLP
Mr. Capps may be contacted at cappsg@whiteandwilliams.com
Mr. DiFebbo may be contacted at difebbom@whiteandwilliams.com
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Association Bound by Arbitration Provision in Purchase-And-Sale Contracts and Deeds
January 11, 2022 —
David Adelstein - Florida Construction Legal UpdatesWhen an association files a lawsuit pertaining to matters of common interest, the lawsuit is typically filed as a class on behalf of the owners that make up the association (i.e., the association’s members). How do you deal with an arbitration provision that is included in an owner’s purchase-and-sale agreement or recorded in the deed? The recent opinion in Lennar Homes, LLC v. Martinique at the Oasis Neighborhood Association, Inc., 47 Fla. L. Weekly D15c (Fla 3rd DCA 2021) dealt with this exact issue with a homeowner’s association ruling that the association was required to arbitrate its latent construction defect claims against the developer (homebuilder).
In this case, a community in Miami consisted of 26 townhouse buildings. There was a broad arbitration provision in each owner’s purchase-and-sale agreement that included disputes relating to property damage. Further, with each closing, a special warranty deed was recorded that included a nearly identical arbitration provision.
The association became aware of latent defects relating to the exterior walls of the buildings and filed a lawsuit against the developer (homebuilder). The developer moved to compel the dispute to arbitration which was denied by the trial court because there was no specific agreement between the association and the developer that required arbitration and the lawsuit dealt with matters that the association was obligated to maintain.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Dangerous Condition, Dangerous Precedent: California Supreme Court Expands Scope of Dangerous Condition Liability Involving Third Party Negligent/Criminal Conduct
August 19, 2015 —
R. Bryan Martin, Laura C. Williams, & Lawrence S. Zucker II – Haight Brown & Bonesteel LLPIn Cordova v. City of Los Angeles (filed 8/13/15, Case No. S208130), the California Supreme Court held a government entity is not categorically immune from liability where the plaintiff alleges a dangerous condition of public property caused the plaintiff’s injury, but did not cause the third party conduct which precipitated the accident.
The case arises out of a traffic collision by which the negligent driving of a third party motorist caused another car to careen into a tree planted in the center median owned and maintained by the City of Los Angeles (“City”). Of the four occupants in the car that collided with the tree, three died and the fourth was badly injured. The parents of two of the occupants sued the City for a dangerous condition of public property under Government Code Section 835. The plaintiffs alleged the roadway was in a dangerous condition because the trees in the median were too close to the traveling portion of the road, posing an unreasonable risk of harm to motorists who might lose control of their vehicles.
The City successfully moved for summary judgment, which plaintiffs appealed. On review, the Court of Appeal affirmed holding the tree was not a dangerous condition as a matter of law because there was no evidence that the tree had contributed to the criminally negligent driving of the third party motorist.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
R. Bryan Martin,
Laura C. Williams and
Lawrence S. Zucker II
Mr. Martin may be contacted at bmartin@hbblaw.com
Ms. Williams may be contacted at lwilliams@hbblaw.com
And Mr. Zucker may be contacted at lzucker@hbblaw.com
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Foundation Arbitration Doesn’t Preclude Suing Over Cracks
March 28, 2012 —
CDJ STAFFThe Louisiana Court of Appeals has reversed the decision of a lower court, allowing a construction defect case to go through. In Greer v. Town Construction Company, the Greers hired Town Construction to build a home in Baton Rouge. The business relationship went sour, with disputes over “costs, change orders, workmanship, and timeliness issues.”
Town Construction filed an arbitration claim for the unpaid contract balance. In the counterclaim, the Greers made claims of mold and mildew problems, and wall cracks that they attributed to a “structural defect in the foundation.” In arbitration, Town Construction was awarded the full contract balance plus extra costs and interest, while the Greers were awarded for their structural claims.
Three years later, the Greers found additional cracks and filed a suit against Town Construction. Town Construction argued that the Greer’s lawsuit should be dismissed, as the claims had already been through the arbitration process. The district court agreed with Town Construction and dismissed the suit.
The appeals court noted that the Greers would have no ground for a suit if the arbitration was a “valid and final judgment,” and went on to note that there was no evidence in the trial record that the arbitration met this qualification. The court noted that although it was clear that both parties had agreed to the decisions of the arbiter, under Louisiana law, arbitration is not final until it has been “rendered by a court with jurisdiction over subject mater and over parties.”
The court remanded the case to the lower court, noting that “the district court is obligated to first determine whether a valid arbitration award is in existence and had been confirmed before considering the merits of the exception. The court noted that their decision “should not be read to express any opinion as to the merits of the claims or as to the propriety of damages sought in the Greer’s lawsuit.”
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Changes to Pennsylvania Mechanic’s Lien Code
November 05, 2014 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Musings, we welcome Jim Fullerton. Jim is the President of the law firm of
Fullerton & Knowles, P.C., which has attorneys licensed in Virginia, Maryland, Pennsylvania, and the District of Columbia, is a Martindale Hubbell Peer Rated Lawyer AV® Preeminent.™ The firm represents owners, lenders, design professionals, suppliers, subcontractors, general contractors and other members of the real estate and construction industries, filing mechanic’s liens, surety bond and other construction claims across all of the states in the Mid Atlantic region. He also represents creditors in bankruptcy issues nationwide, particularly defense of bankruptcy preference claims; advises owners and lenders in real estate lending and acquisition transactions; on all real estate and construction law issues; contract formation and disputes.
The firm’s Construction Law Survival Manual is well known and widely used by participants in the construction process. The 550 page manual provides valuable information about construction contract litigation, mechanic’s liens, payment bond claims, bankruptcy and credit management and contains over 30 commonly used contract forms. All of this information and recent construction law issues are constantly updated on the firm’s website.
There are two changes to the Pennsylvania Mechanic’s Lien Code that became effective September 2014. First, residential properties built by an owner for their own residence will now have a defense of payment to subcontractor mechanic’s liens. This protects homeowners from mechanic’s liens if they have paid their general contractors in full. Second, construction loan open end mortgages will have priority over mechanic’s liens, as long as at least sixty per cent (60%) of the loan proceeds are used for construction costs. This change was pushed by Pennsylvania lenders in response to a recent court case.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
ASCE Statement On House Passage Of The Precip Act
May 16, 2022 —
Dennis D. Truax, President, American Society of Civil Engineers (ASCE)Washington, DC. – ASCE congratulates the U.S. House of Representatives on passage of the PRECIP Act, H.R. 1437 which requires the National Oceanic and Atmospheric Administration (NOAA) to update precipitation frequency estimates every five years, and encourages its swift passage in the Senate.
To build for the future and prioritize the resilience of our nation's critical infrastructure systems, civil engineers require the most current precipitation data available. Unfortunately, too often the rainfall data that engineers must rely on to design our nation's infrastructure is out-of-date and does not account for the increasingly heavy rains and less predictable weather patterns of today. The lack of current data poses significant challenges for engineers as they attempt to protect public health, safety and welfare and impacts the security of the nation's dams, levees, wastewater and stormwater infrastructure. Design and protection of all infrastructure systems depend on current, accurate and reliable precipitation data that adequately accounts for ongoing climate changes.
The PRECIP Act provides needed resources to help NOAA produce more accurate data and serves to strengthen the nation's infrastructure so that it can withstand the increasingly severe effects of climate change. Passage of this legislation is a critically vital step toward meeting the goals set forth in the recently passed Infrastructure Investment and Jobs Act to ensure resilient infrastructure so that every community can thrive.
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.
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