Time To “Construct” New Social Media Policies
March 28, 2022 —
Aaron C. Schlesinger, Lauren Rayner Davis & Jennifer Harris - ConsensusDocs1. The Social Media Dilemma
Social media has significantly impacted all facets of society, especially the way people communicate. Its impact and application to the construction industry is no different. TikTok, the video-sharing platform, is one of the world’s most popular platforms today, with over one billion active users monthly. From just one video, users can gain thousands—if not millions—of followers overnight. Social media has been used to present a narrative that the workplace can be fun, or that employees are enjoying working together. Social media can also, however, serve as a tool to document a perfect storm of events, such as a building collapse or crane malfunction, which can then be misconstrued and smeared throughout the internet, all with your company’s logo in the background.
So, what happens when an incident on your jobsite is branded across social media as a #constructionfail, and the project owner ultimately initiates legal action? Can this video be used against your company? Can employers limit or otherwise restrict employees’ social media activity to avoid potential liability? How does the existence of social media posts affect dispute resolution procedures?
Reprinted courtesy of
Aaron C. Schlesinger, Peckar & Abramson, P.C. (ConsensusDocs),
Lauren Rayner Davis, Peckar & Abramson, P.C. (ConsensusDocs) and
Jennifer Harris, Peckar & Abramson, P.C. (ConsensusDocs)
Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com
Ms. Davis may be contacted at ldavis@pecklaw.com
Ms. Harris may be contacted at jharris@pecklaw.com
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Gillotti v. Stewart (2017) 2017 WL 1488711 Rejects Liberty Mutual, Holding Once Again that the Right to Repair Act is the Exclusive Remedy for Construction Defect Claims
June 05, 2017 —
Richard H. Glucksman, Esq. & Chelsea L. Zwart, Esq. - Chapman Glucksman Dean Roeb & Barger BulletinBackground
In Gillotti v. Stewart (April 26, 2017) 2017 WL 1488711, which was ordered to be published on May 18, 2017, the defendant grading subcontractor added soil over tree roots to level the driveway on the plaintiff homeowner’s sloped lot. The homeowner sued the grading subcontractor under the California Right to Repair Act (Civil Code §§ 895, et seq.) claiming that the subcontractor’s work damaged the trees.
After the jury found the subcontractor was not negligent, the trial court entered judgment in favor of the subcontractor. The homeowner appealed, arguing that the trial court improperly construed the Right to Repair Act as barring a common law negligence theory against the subcontractor and erred in failing to follow Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98. The Third District Court of Appeal disagreed and affirmed the trial court’s judgment in favor of the subcontractor.
Impact
This is the second time the Third District Court of Appeal has held that Liberty Mutual (discussed below) was wrongly decided and held that the Right to Repair Act is the exclusive remedy for construction defect claims. The decision follows its holding in Elliott Homes, Inc. v. Superior Court (Hicks) (2016) 6 Cal.App.5th 333, in which the Court of Appeal held that the Right to Repair Act’s pre-litigation procedures apply when homeowners plead construction defect claims based on common law causes of action, as opposed to violations of the building standards set forth in the Right to Repair Act. Elliott is currently on hold at the California Supreme Court, pending the decision in McMillin Albany, LLC v. Superior Court (2015) 239 Cal.App.4th 1132, wherein Liberty Mutual was rejected for the first time by the Fifth District. CGDRB continues to follow developments regarding the much anticipated McMillin decision closely, as well as all related matters.
Discussion
The Right to Repair Act makes contractors and subcontractors not involved in home sales liable for construction defects only if the homeowner proves they negligently cause the violation in whole or part (Civil Code §§ 911(b), 936). As such, the trial court in Gillotti instructed the jury on negligence with respect to the grading subcontractor. The jury found that while the construction did violate some of the Right to Repair’s building standards alleged by the homeowner, the subcontractor was not negligent in anyway. After the jury verdict, the trial court found in favor of the grading subcontractor.
The homeowner moved for a judgment notwithstanding the verdict or a new trial on the grounds that the trial court improperly barred a common law negligence theory against the grading subcontractor. The trial court denied the motions on the grounds that “[t]he Right to Repair Act specifically provides that no other causes of action are allowed. See Civil Code § 943.” The trial court specifically noted that its decision conflicted with Liberty Mutual, in which the Fourth District Court of Appeal held that the Right to Repair Act does not eliminate common law rights and remedies where actual damage has occurred, stating that Liberty Mutual was wrongly decided and that the Liberty Mutual court was naïve in its assumptions regarding the legislative history of the Right to Repair Act.
In Gillotti, the Third District Court of Appeal stated that the Liberty Mutual court failed to analyze the language of Civil Code § 896, which “clearly and unequivocally expresses the legislative intent that the Act apply to all action seeking recovery of damages arising out of, or related to deficiencies in, residential construction, except as specifically set forth in the Act. The Act does not specifically except actions arising from actual damages. To the contrary, it authorizes recovery of damages, e.g., for ‘the reasonable cost of repairing and rectifying any damages resulting from the failure of the home to meet the standards....’ ([Civil Code] § 944).”
The Court also disagreed with Liberty Mutual’s view that because Civil Code §§ 931 and 943 acknowledge exceptions to the Right to Repair Act’s statutory remedies, the Act does not preclude common law claims for damages due to defects identified in the Act. The Court stated: “Neither list of exceptions, in section 943 or in section 931, includes common law causes of action such as negligence. If the Legislature had intended to make such a wide-ranging exception to the restrictive language of the first sentence of section 943, we would have expected it to do so expressly.”
Additionally, the Court of Appeal rejected the argument that Civil Code § 897 preserves a common law negligence claims for violation of standards not listed in Civil Code § 986. It explained that the section of Civil Code § 897, which provides, “The standards set forth in this chapter are intended to address every function or component of a structure,” expresses the legislative intent that the Right to Repair Act be all-encompassing. Anything inadvertently omitted is actionable under the Act if it causes damage. Any exceptions to the Act are made expressly through Civil Code §§ 931 and 934. The Court concluded in no uncertain terms that the Right to Repair Act precludes common law claims in cases for damages covered by the Act.
The homeowner further argued that she was not precluded from bringing a common law claim because a tree is not a “structure,” and therefore the alleged tree damage did not fall within the realm of the Right to Repair. The Court of Appeal also rejected this argument, holding that while the tree damage itself was not expressly covered, the act of adding soil to make the driveway level (which caused the damage) implicated the standards covered by the Right to Repair Act. The Court explained that since under the Act a “structure” includes “improvement located upon a lot or within a common area” (Civil Code § 895(a)), as the driveway was an improvement upon the lot, the claim was within the purview of the Right to Repair Act. As the soil, a component of the driveway, caused damage (to the trees), it was actionable under the Act.
Reprinted courtesy of
Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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Bay Area Firm Offers Construction Consulting to Remodels
October 02, 2013 —
CDJ STAFFHomeowners sometimes aren’t too clear on questions of “building codes, permit process or where to find the right materials,” according to Benoni Mocanu, the owner of MB Development. He’s ready to step in an help by offering construction consulting to homeowners doing their own remodeling projects. In addition to providing the advice to help them through their projects, they’re ready to step in if a homeowner finds that they can’t finish the project.
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Google’s Biggest Moonshot Is Its Search for a Carbon-Free Future
November 15, 2021 —
Mark Bergen - BloombergGoogle Bay View, the company’s newest campus, consists of three squat buildings nestled near the San Francisco Bay shoreline a few miles east of its headquarters in Mountain View, Calif. The first things visitors notice are the roofs.
They curve down gently from pinched peaks, like circus tents, sloping almost to the ground. Each roof is blanketed with overlapping solar panels that glisten with a brushed metal sheen on the edges. Google calls this design Dragonscale, and indeed it looks as if a mystical beast is curled up by the water in Silicon Valley.
Google envisions its latest campus as the embodiment of a grander ambition to run its operations entirely free of carbon. The company plans to open Bay View in January to “a limited number” of employees, depending on the pandemic. Beneath the buildings, thousands of concrete pillars plunged into the ground will serve as a sort of geothermal battery, storing heat to warm the building and water supply without natural gas. The roof panels were constructed with a unique textured glass to prevent glare and with canopies that emit a soft, glowing light into the spacious atria inside. “We call this the Cathedral of Work,” says Asim Tahir, who oversees energy decisions in Google’s real estate division. He stands by the southern entrance in a hard hat, mask, and safety vest.
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Mark Bergen, Bloomberg
What Construction Firm Employers Should Do Right Now to Minimize Legal Risk of Discrimination and Harassment Lawsuits
October 07, 2024 —
Anthony LaPlaca, Dawn Solowey, Andrew Scroggins & Adrienne LeeSeyfarth Synopsis: In June 2024, Seyfarth published a blog article warning construction industry employers of recent anti-harassment guidelines issued by the EEOC. We predicted that the EEOC has “put the construction industry squarely in its sights.”[1] In this follow-up Alert, we discuss recent cases confirming the renewed regulatory focus on the construction sector, which demonstrate the need to put in place sound practices for non-discriminatory recruitment, hiring, and training of the work force in order to be prepared for this heightened risk of government scrutiny.
Recent EEOC Settlements
The U.S. Equal Employment Opportunity Commission (EEOC) has indicated, in no uncertain terms, that over the next five years it intends to prioritize the mitigation of systemic workplace problems and the historical underrepresentation of women and workers of color in the construction sector.[2] Two recent cases confirm that the EEOC is true to its word when it comes to tackling racial and gender disparities in the construction work force.
In August 2024, the EEOC secured two consent decrees with two separate construction firms in Florida, totaling nearly $3 million.
Reprinted courtesy of
Anthony LaPlaca, Seyfarth,
Dawn Solowey, Seyfarth,
Andrew Scroggins, Seyfarth and
Adrienne Lee, Seyfarth
Mr. LaPlaca may be contacted at alaplaca@seyfarth.com
Ms. Solowey may be contacted at dsolowey@seyfarth.com
Mr. Scroggins may be contacted at ascroggins@seyfarth.com
Ms. Lee may be contacted at aclee@seyfarth.com
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Look to West Africa for the Future of Green Architecture
May 16, 2022 —
Kriston Capps - BloombergIn 2014, a crowd of demonstrators stormed Burkina Faso’s National Assembly building, setting it ablaze and ending the nearly 30-year rule of President Blaise Compaoré.
A year later, Burkenabè architect Diébédo Francis Kéré was asked to imagine a new parliamentary building — one that would reflect a more democratic future for the West African nation. Kéré conceived a six-story stepped pyramid that slopes up gently from the ground, inviting citizens to gather, climb and take in views of the capital city, Ouagadougou. The ruins of the former parliament building next door would be transformed into a rainwater-collecting memorial park.
The project remains a ways off: Burkina Faso continues to struggle with political unrest, including a coup d’état in January 2022. But Kéré’s fast-growing prominence may improve the odds that his vision will eventually materialize. In March, he became the first African architect to win the Pritzker Architecture Prize, the design field’s top honor.
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Kriston Capps, Bloomberg
Measure of Damages in Negligent Procurement of Surety Bonds / Insurance
September 04, 2018 —
David Adelstein - Florida Construction Legal UpdatesMy broker procured the wrong insurance and I am exposed to a loss. My broker failed to procure proper insurance and I am exposed to a loss. “Where the parties enter into an agreement to procure insurance and there is a negligent failure to do so, an insurance broker may be liable for damages.” The Lexington Club Community Association, Inc. v. Love Madison, Inc., 43 Fla.L.Weekly D1860a (Fla. 4th DCA 2018). The proper measure of damages in a negligent procurement of insurance claim is “what would have been covered had the insurance been properly obtained.” Id. quoting Gelsomino v. ACE Am. Ins. Co., 207 So.3d 288, 292 (Fla. 4th DCA 2016). This measure of damages in a negligent procurement of insurance claim is important because it is the measure of damages that dictates recoverable damages under this claim.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Constructive Changes – A Primer
October 02, 2018 —
Jonathan R. Mayo - Smith CurrieA “constructive change” occurs when an owner action or omission not formally acknowledged by the owner to be a change in the contact’s scope of work forces the contractor to perform additional work. Constructive changes are not formal change orders, but informal changes that could have been ordered under a contract’s changes clause if the change had been recognized by the owner. The constructive change doctrine recognizes that being informally required to do extra work is similar to a formal change order and should be governed by similar principles. Thus, if it is found that a constructive change order did occur, the contractor may be entitled to payment for additional costs incurred, and an extension to the contract performance period.
Constructive changes most often arise where there is a dispute regarding contract interpretation, defective plans and specifications, acceleration or suspension of work, interference or failure to cooperate with the contractor, misrepresentation or nondisclosure of superior knowledge or technical information, over inspection, or a delay in providing requested information crucial to the contractor’s ability to continue work.
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Jonathan R. Mayo, Smith CurrieMr. Mayo may be contacted at
jrmayo@smithcurrie.com
