Congratulations to BWB&O’s Newport Beach Team on Obtaining a Defense Verdict in Favor of their Subcontractor Client!
April 02, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara’s Newport Beach Partner Morgan Stiefel and Associate Brandon Cook obtained a defense verdict after years-long litigation in favor of their subcontractor client.
This lawsuit stemmed from a claim made by Plaintiff for eye injuries arising out of claimed negligence and strict liability associated with our client’s performance of a sandblasting job at a construction site adjacent to Plaintiff’s home. Plaintiff alleges that while she was in her backyard, sand hit her in the eyes at a high velocity speed, resulting in permanent damage to her eyes.
We argued our clients took all necessary safety precautions in the performance of this job, and Plaintiff’s eye irritation symptoms could not have been caused by our client. All of her alleged injuries were either pre-existing or could be explained by circumstances other than our client’s actions. Through expert testimony and our arguments, we were able to show the jury that Plaintiff lied about the sand entering her eyes at a high velocity and her symptoms being caused by our clients’ performance of the sandblasting job.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Final Rule Regarding Project Labor Agreement Requirements for Large-Scale Federal Construction Projects
January 29, 2024 —
Aaron C. Schlesinger & Julia Loudenburg - Peckar & Abramson, P.C.Beginning on January 22, 2024, in compliance with President Biden’s February 4, 2022 Executive Order, 14603, federal construction projects with a total estimated cost of $35 million are required to utilize a project labor agreement (“PLA”) unless the contracting agency grants an exception. The Federal Register estimates that this rule will impact approximately 119 IDIQ contracts each year; these contracts have an average award value of about $114 million.
The White House claims the PLAs will improve projects by:
- Eliminating project delays from labor unrest, such as strikes;
- Creating dispute resolution procedures and cooperation for labor-management disputes, such as those over safety;
- Including provisions “to support workers from underserved communities and small businesses”;
- Helping to create a steady pipeline of workers for federal projects; and
- Promoting competition on government contracts so that all builders, even those who are non-union, can bid on jobs that require a PLA.
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Aaron C. Schlesinger, Peckar & Abramson, P.C.Mr. Schlesinger may be contacted at
aschlesinger@pecklaw.com
Don’t Fall in Trap of Buying the Cheapest Insurance Policy as it May be Bad for Your Business Risks and Needs
March 25, 2024 —
David Adelstein - Florida Construction Legal UpdatesDon’t fall in the trap of buying the cheapest insurance policy. It will come and bite you in the butt big time! Consult with an insurance broker that understands construction and, importantly, your specific industry, to provide you coverage within your industry. Otherwise, you’ll be paying for a policy that may (i) not be a good policy, and (ii) may provide you minimal to no value for your industry’s RISKS and NEEDS when factoring in exclusions. When procuring insurance, think of the old adage “penny wise and pound foolish,” and don’t make decisions that fit within this adage!
The recent decision in Nautilus Ins. Co. v. Pinnacle Engineering & Development, Inc., 2024 WL 940527 (S.D. Fla. 2024) serves as an example. Here, a subcontractor was hired by a general contractor to perform underground utility work for a townhome development which consisted of 57 townhome units included in 18 detached structures. The subcontractor’s underground work was defective which caused damage to the property’s water line, sewer system, plumbing lines, pavers, etc. The general contractor was liable to the owner for this defective work. Although the general contractor was an additional insured under the subcontractor’s commercial general liability (CGL) policy, the subcontractor’s CGL carrier denied the duty to defend and initiated an insurance coverage lawsuit. Motions for summary judgment were filed.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Poor Pleading Leads to Loss of Claim for Trespass Due to Relation-Back Doctrine, Statute of Limitations
April 13, 2017 —
Brett G. Moore & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPIn Scholes v. Lambirth Trucking Co. (No. C070770, Filed 4/6/2017), the California Court of Appeal for the Third Appellate District held that the relation-back doctrine could not save a property owner’s trespass claim against an adjacent neighbor where the property owner’s original complaint was factually devoid and was later amended to include the trespass claim after the statute of limitations had run.
The relation-back doctrine is a well-settled legal principle which allows a plaintiff to amend a complaint to add a cause of action which would otherwise be barred by the statute of limitations. As long as the factual allegations “relate back” to the those alleged in the original complaint, an additional cause of action will not be subject to the applicable statute of limitations. The policy behind statutes of limitation is to put a defendant on notice of the need to defend against a claim in time to prepare an adequate defense.
On May 21, 2007, a fire broke out at defendant Lambirth Trucking Company’s (“Lambirth”) soil enhancement facility adjacent to plaintiff Vincent Scholes’ (“Scholes”) property. Scholes had previously notified Lambirth that wood chips and rice hulls were accumulating on his property as a result of Lambirth’s operations. Local authorities also warned Lambirth of the hazards presented by storage of those materials.
Reprinted courtesy of
Brett G. Moore, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Moore may be contacted at bmoore@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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Whose Employee is it Anyway?: Federal Court Finds No Coverage for Injured Subcontractor's Claim Based on Modified Employer's Liability Exclusion
September 28, 2020 —
Jeffrey J. Vita & Kerianne E. Kane - Saxe Doernberger & VitaIn Nagog Real Estate Consulting Corp. v. Nautilus Insurance Co.,1 the United States District Court for the District of Massachusetts held that an insurer had no duty to defend its insureds against claims brought by an injured subcontractor, based on an overbroad employer’s liability exclusion in the policy.
Nautilus Insurance Company issued a commercial general liability policy to developer Nagog Homes LLC and its related construction company, Nagog Real Estate. The policy was endorsed with an Employer’s Liability Exclusion (the L205 Endorsement) that expanded the scope of the standard exclusion in the coverage form to include bodily injury claims of employees of “any” insured and their contractors or subcontractors, as opposed to simply the employees of the named insured.
Nagog Homes was the developer, and Nagog Real Estate was the general contractor for a residential construction project. An employee of the framing subcontractor hired by Nagog Real Estate was injured while working on the project and sued both Nagog entities for his injuries. Nautilus, relying on the modified employer’s liability exclusion, denied coverage for the lawsuit based on allegations that the Nagog entities hired the framing subcontractor to perform work, which effectively made the plaintiff an employee of one or both of the Nagog entities.
Reprinted courtesy of
Jeffrey J. Vita , Saxe Doernberger & Vita and
Kerianne E. Kane, Saxe Doernberger & Vita
Mr. Vita may be contacted at jjv@sdvlaw.com
Ms. Kane may be contacted at kek@sdvlaw.com
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New Jersey Appeals Court Ruled Suits Stand Despite HOA Bypassing Bylaw
January 22, 2014 —
Beverley BevenFlorez-CDJ STAFFIn the case Port Liberte II Condominium Association v. New Liberty Residential Urban Renewal Company, a New Jersey appeals court ruled that a homeowners association (HOA) could bypass a bylaw that requires unit owners to approve litigation before it is filed, the New Jersey Law Journal reported. Two construction-defect suits were reinstated by the appeals court, and both had been “dismissed based on alleged violation of the bylaws.” The first suit “claimed the defendants' negligence contributed to major construction defects at the 225-unit condominium development, which was completed in 2004” while “the second suit claimed that one section of the development is sinking into the ground because of a failure to properly investigate soil conditions at the former industrial site where the buildings sit.”
According to the New Jersey Law Journal, the HOA did not obtain approval from the unit owners prior to commencing litigation because “the statute of limitations was about to expire.” However, the HOA met with the residents in October of 2009 and a vote was cast “72 to 3 to pursue litigation.” In May of 2011 the second suit was dismissed because defendants stated “approval of residents was not obtained.” Another meeting of residents occurred, and another vote cast ratified “both suits by a vote of 65 to 1.” However, Judge Baber, who had previously dismissed both suits, refused to reinstate them.
“The Appellate Division said in its ruling that the Condominium Act, N.J.S.A. 46:8B-1, gives the association the exclusive authority to file suit against builders and other third parties for damage to common areas in the community,” the New Jersey Law Journal reported. “Given its legal responsibility for upkeep of common areas, and its statutory authorization to sue for damages to such areas, the association had standing to file suit, the appeals court said.”
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California Court of Appeal Makes Short Work Trial Court Order Preventing Party From Supplementing Experts
August 06, 2019 —
Garret Murai - California Construction Law BlogYears ago I recommended to a client that we hire a construction defect expert in a case. The client, a thrifty fellow, responded, “But I thought you were the construction expert. Why do I need to hire another expert? A fair question and one that caught me flat footed.
Whether I’m an “expert” or not can be debated, but I explained to the client that while I was an attorney whose practice focused on construction law, I was not someone who he would want to take the stand and testify about the engineering design and seismic stability of pilings. For that, he needed an expert.
In construction litigation it’s not uncommon for parties and their attorneys to hire “experts.” There are even special rules set forth in the California Code of Civil Procedure for disclosing, supplementing and deposing experts, which basically provide as follows:
1. Demand for Exchange of Expert Information: After the court sets a trial date in a case, any party may demand that each party exchange information concerning the experts they intend to have testify at trial;
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Blue-Sky Floods Take a Rising Toll for Businesses
March 04, 2019 —
Eric Roston - BloombergWhen American colonists planned downtown Annapolis, Maryland in 1695, they wanted easy access to the sea. Almost 325 years later, the sea is now closer than ever. It’s so close, in fact, that 16 small businesses lost roughly 2 percent of their revenue in 2017.
In a first-of-its-kind study, Stanford University and Naval Academy researchers looked at the effect of sea-level rise on a single city-block. Specifically, they examined sunny-day floods—inundation that occurs when infrastructure built for lower waters is no longer sufficient to keep back the highest tides—at a central parking lot at City Dock.
As sea levels rise, these “nuisance floods” are becoming more common. From the 1950s to the early 2000s, the days of flooding in the 27 most vulnerable cities across the U.S. grew from two per year to nearly 12.
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Eric Roston, Bloomberg
