Construction Companies Can Be Liable for “Secondary Exposure” of Asbestos to Household Members
October 26, 2017 —
Garret Murai - California Construction Law BlogThe history of asbestos regulation in the United States is complicated. Prior to the 1970s, asbestos-containing materials used in construction was widespread.
In 1971, when the U.S. Environmental Protection Agency issued an emissions standard for asbestos as part of the Clean Air Act. In 1972, the EPA extended this regulation to an occupational standard and, over the next decade, the EPA together with the U.S. Occupational Safety and Health Administration and the U.S. Consumer Product Safety Commission issued a wide array of regulations aimed at asbestos.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Top Five General Tips for All Construction Contracts
October 26, 2020 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Musings we welcome Spencer Wiegard. Spencer is a Partner with Gentry Locke Rakes & Moore, LLP. He is a member of the firm’s Construction Law and Commercial Litigation practice groups. Spencer focuses his practice in the areas of construction law and construction litigation. Spencer is a member of the Board of Governors for the Virginia State Bar Construction Law and Public Contracts Section, and a member of the Legislative Committee of the Associated General Contractors of Virginia and the Executive Committee for the Roanoke/SW Virginia District of the Associated General Contractors of Virginia.
I would like to thank Chris for inviting me to author today’s guest post. Over the past few days, I have found myself wading through the terms and conditions of a lengthy and complicated construction contract, while at the same time aggressively negotiating for Houston house leveling cost readjustments. As I slogged through the legalese, I was reminded of a presentation that I gave earlier this year to the Roanoke District of the Virginia Associated General Contractors. The district’s executive committee asked me to speak to its members concerning the broad topic of “Construction Contracts 101.” At the beginning of my presentation, I passed along my top five general tips for all construction contracts. Although some of these tips may sound like common sense, I often encounter situations where these basic rules are violated by experienced contractors, subcontractors, suppliers and design professionals. My top five general tips for all construction contracts are:
- Reduce the terms of the agreement to writing.
- The written agreement should include all important and relevant information and terms. If it was important enough to discuss prior to signing the contract, it is important enough to include in the written contract;
- At a minimum, include who, what, when, where, how, and how much;
- Both parties should sign the written agreement; and
- Don’t ignore handwritten changes to the contract, as these changes may either mean that you don’t have a deal, or they may become part of the contract when you sign it.
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com
New York Construction Practice Team Obtains Summary Judgment, Dismissal of Labor Law §240(1) Claim Against Municipal Entities
August 19, 2024 — Lewis Brisbois Newsroom
New York, N.Y. (August 8, 2024) – In Josan v. City of New York, et al., New York Associate Jonathan A. Bartlett, a member of New York Partner Meghan A. Cavalieri’s Construction Practice Team, recently obtained summary judgment and dismissal of the plaintiffs’ Labor Law §240(1) claim against the City of New York, the New York City School Construction Authority, and the New York City Department of Education.
The plaintiff alleged to have sustained injuries as the result of a construction site accident occurring on January 9, 2020, while in the scope of his employment as a forklift operator in connection with the construction/renovation of a school building in Brooklyn, New York. Specifically, the plaintiff alleged that he was injured when a forklift he was operating in order to lift scaffold frame materials tipped over, causing him disabling injuries. The plaintiffs’ counsel articulated an eight-figure initial settlement demand. Read the court decision
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A Court-Side Seat: A FACA Fight, a Carbon Pledge and Some Venue on the SCOTUS Menu
November 02, 2020 — Anthony B. Cavender - Gravel2Gavel
In this summary of recent developments in environmental and regulatory law, venues are challenged, standing is upheld, statutory exemption is disputed and more.
THE U.S. SUPREME COURT
Change Must Come from Within … Maryland?
As the new term begins, the Court has agreed to review BP PLC v. Mayor and City Council of Maryland, a decision of the U.S. Court of Appeals for the Fourth Circuit which held that a climate change damages case filed against many energy companies must be heard in the state courts of Maryland and not the federal courts. The petitioners argue that the federal office removal statute authorizes such removal, and the Fourth Circuit’s contrary decision conflicts with rulings from other circuit courts.
THE FEDERAL COURTS
Where Is the Fund in That?
On September 25,2020, in U.S. House of Representatives v. Mnuchin, et al., the U.S. Court of Appeals for the District of Columbia held that the lower court should not have dismissed a lawsuit filed by the U.S. House of Representatives challenging the Executive Branch’s transferal of appropriated funds to the Department of Defense to build a physical barrier along the southern border of the United State. The case is More than $8 billion is at stake, a sum that had been transferred from various federal accounts not involved with building the wall. The appeals court held that the lower court should not have dismissed this lawsuit because the House of Representatives had standing to bring this lawsuit even if the U.S. Senate was not involved with this litigation. Accordingly, the case was returned to the lower court for additional findings, with the appeals court noting that the Constitution’s Appropriation’s Clause serves as an important check on the Executive Branch. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com
Making the World’s Longest Undersea Railway Tunnel Possible with BIM
December 11, 2018 — Aarni Heiskanen - AEC Business
Finland and Estonia are Baltic sea neighbors separated by the Gulf of Finland. Over eight million travelers and 1.2 million cars travel between Helsinki and Tallinn every year by boat. However, a consortium of companies is now planning to build the Finest railway tunnel between the two countries.
The vision of such a tunnel has been around since the 1990s. In June 2016, Peter Vesterbacka, previously known as the marketer behind Rovio’s Angry Birds, made the latest endeavor public in his AEC Hackathon presentation. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi
Montana Court Finds Duty to Defend over Construction Defect Allegation
February 14, 2013 — CDJ STAFF
The U.S. District Court for Montana recently ruled on a case with underlying construction defect issues. Brian Margolies discussed Lukes v. Mid-Continent on the blog run by his firm, Traub Lieverman Straus & Shrewsberry LLP. In the construction defect case, the homeowner “alleged that the siding warped and pulled away from the house, which allowed for water intrusion and resulting exterior and interior damage.” Further, there were claims that “the insured or its subcontractor failed to install proper flashing, which also allowed for water intrusion.”
The insured was Bernie Rubio, who had a general liability policy from Mid-Continent. Mid-Continent disclaimed coverage, citing sections of the business risk exclusions. The court did not find the clauses ambiguous, but concluded that they didn’t apply to the facts of the case.
While the court concluded that Mid-Continent had a duty to defend, they did not determine if there was a duty to indemnify. Read the court decision
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Construction Defect Lawsuit Came too Late in Minnesota
June 28, 2013 — CDJ STAFF
The Minnesota Court of Appeals has upheld a summary judgment in a construction defect case, Lee v. Gorham. Minnesota law requires that contractors warranty that the home will be free of major construction defects during the first ten years, but claims must “be brought within two years of the discovery of the breach.” The Lees received a home inspection report in 2009 that identified a variety of defects, including “several possible structural defects.” The court noted that the report stated, “Contact your builder in writing of the findings, and discuss your options with an attorney.”
The Lees contacted the contractor, Gorham Builders. After initial silence, Gorham told the Lees that problems would “have to be ‘turned over to [the] insurance company.’” Rodney noted in his testimony that he had two choices, to either sue Gorham or hire an outside contractor. Mr. Lee had concluded that the legal costs were likely to be equal to the cost of the contractor.
In June, 2011, the Lees changed their mind about bringing a suit. Gorham sought and received a summary judgment dismissing the case on the grounds that too much time had passed since the Lees learned of the construction defect. The Lees appealed.
The appeals court upheld the summary judgment. The Lees claimed that the 2009 home inspection did not alert them of a “major construction defect,” but the court concluded that the language of the report fit within the Minnesota statutory definition of a “major construction defect.”
Nor was the appeals court convinced that at any time did Gorham provide “assurances that it would cure the defects to the home.” Within the same month as the May 2009 inspection, Gorham had made it clear that any problems were an issue for the insurance company. Thus, the appeals court concluded that the Lee’s equitable-estoppel argument was without merit.
The Lees also brought to appeal the new argument that they did not realize they were dealing with “major construction defects” until they received a subsequent home inspection in 2011. The court noted that the second report does not detail “new defects or structural issues not identified in the 2009 inspection report.” In addition to being “without merit,” the court noted that this claim was not made in the district court and so the appeals court “need not consider this issue on appeal.”
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A Sample Itinerary to get the Most out of West Coast Casualty’s Construction Defect Seminar
May 03, 2018 — Beverley BevenFlorez-CDJ STAFF
With so many worthwhile events stretched across three days, as well as wanting to get out and explore the many attractions in Orange County, California, Construction Defect Journal has come up with a sample itinerary that balances work with recreation.
Day One: Wednesday, May 16th
9:00 a.m. – Breakfast at Steakhouse 55 (Disneyland Hotel)
Meet up with colleagues at Disney’s Steakhouse 55 where you will find a more peaceful and upscale venue, perfect for networking or just catching up with friends.
10:00 a.m. - Madara Spa at Disney’s Grand Californian Hotel
With a free morning, this is the perfect time to take advantage of one of the Disneyland Resort’s pools or schedule a massage at the Madara Spa located within the Grand Californian Hotel.
11:30 a.m. – Grab and Go Lunch at The Coffee House (Disneyland Hotel)
Refuel with a salad or sandwich from one of Disneyland Resort’s quick service restaurants.
12:00 p.m. – Seminar Registration and Schwag Hunting
Start heading over to the seminar to register and be one of the first to check out the amazing exhibitors and grab the free items they have to offer. You don’t want to miss BHA’s golf challenge, where if you sink a putt you win a $25 Amazon gift card for yourself and BHA will match the $25 to the worthwhile WCC charities!
1:00 p.m. – Seminar Begins!
The afternoon starts with a not-to-be-missed panel, “Struggles and Successes of the Past 25 Years.” Next, you’ll learn about “Unwrapped and Unraveled - An insightful (or inciteful?) play at the
changing nature of the relationships between the parties in a wrap program who thought the wrap was supposed to take care of everything.”
3:00 p.m. – Afternoon Break
Get a cup of coffee or water, and head out into the exhibit hall. Don’t forget to go to BHA’s booth to enter to win Dodger tickets.
3:30 p.m. – Seminar Panels Continue
The seminar returns with two more amazing panels: “East Coast Meets West Coast –Hot Construction Defect Issues and Coverage Cases from the Other Coast” and “How to Conduct Your Claim Investigation and Early Claims Handling To Avoid Bad Faith Traps.”
6:00 p.m. – Attend an After Party
After taking a few minutes to unwind and freshen up, go and network as well as have some at one of the reception’s thrown by attending firms. No after party? Head over to the Uva Bar at Downtown Disney for a cocktail and some people watching.
8:00 p.m. - Late Dinner at Catal Restaurant (Downtown Disney)
Enjoy a relaxing and sumptuous meal at Catal in Downtown Disney, one of the famed Patina Group’s restaurants.
Day Two: Thursday, May 17th
7:30 a.m. – Breakfast in the Exhibit Hall
Take advantage of West Coast Casualty’s free breakfast, and peruse more exhibits. Check out BHA’s data process collection process and discover meaningful cost improvements that translate to reduced billing while providing superior accuracy and credibility.
8:30 a.m. – Seminar Panels
The seminar returns with more panels you won’t want to miss: “Recent Important Appellate Decisions in California, Nevada, and Arizona” and “Litigating In The Western States - A Judge’s Perspective.”
10:30 a.m. – Morning Break
Grab a cup of coffee or water and chat with your colleagues about the panels you just heard.
10:45 a.m. – Seminar Panel
Another important panel to finish the morning, “Subrogation is not the type of intervention I need. How a subrogated insurer affects construction defect matters.”
11:45 a.m. – Award Presentation
Find out this year’s winners of the Ollie, Legend of the Era and Silver Stars.
12:15 p.m. – WCC Luncheon
Network and chat with your colleagues at one of the meals provided by the seminar.
1:30 p.m. – Seminar Panel
Now that you’ve recharged, you’re ready for another incredible WCC panel: “What Comes Around (Sometimes) Goes Around: Dealing with Recalcitrant Carriers.”
2:30 p.m. – Afternoon Break
Stretch your legs in the exhibit hall and get yourself more schwag. Learn about BHA’s expanding market presence and full range of services in Texas, Florida, and across the Southeast United States.
3:00 p.m. – Seminar Panels Continue
Don’t miss the last two panels of the day: “Effective Use of Experts” and “Claims Managers Speak - A Retrospective & Prospective Discussion.”
5:30 p.m. – Cocktail Reception
With your glass of Cabernet, network with colleagues and then try your hand again at BHA’s golf challenge to win an Amazon gift card and earn money for WCC charities.
6:30 p.m. – Hit the Pool or Jacuzzi
Take those tired feet and soak them in one of the Disneyland Resort’s many pools and jacuzzi’s. Or schedule a spa treatment at Madara in the Grand Californian Hotel.
7:00 p.m. – After Party or Ball Game
Now that you’ve given yourself some time to rejuvenate, you’re ready to meet up with friends and colleagues at one of the after parties and receptions. Or if you’re a sports fan and want a break from work, go cheer on the Angel’s as they play Tampa Bay.
8:30 p.m. – Uva Bar
Unless you chose to go to the game, enjoy a late supper and cocktail under the beautiful southern California sky at the Uva Bar in Downtown Disney.
Day Three: Friday, May 18th
7:30 a.m. – Breakfast at the Seminar
Take advantage of another free meal, and take the time to check out more exhibits as the last day of the seminar begins. Don’t forget to enter BHA’s raffle for Dodger tickets!
8:30 a.m. – Breakout Sessions I
Choose between one of three breakout sessions: “Known Knowns and Known: Unknowns, the Ins and Outs of Extrapolation,” “Risk Transfer Alphabet Soup - A twelve year lookback on legislative tinkering with anti-indemnity statutes - where are we now?” or “Florida – Opening Pandora's Box and How to Close It.”
9:30 a.m. – Breakout Sessions II
Three additional breakout sessions to choose from: “An Update on California’s Right to Repair Act, featuring McMillin Albany et al. v. Superior Court,” “Finding Evidence for your Coverage Case,” or “Northwest Insurance Coverage and Extra-Contractual Issues.”
10:30 a.m. – Morning Break
Refuel with coffee or water before the next group of exciting breakout sessions begins.
11:00 a.m. – Breakout Sessions III
You’ll want to go to one of these three breakout sessions: “Subcontractor Wars: The Last AI,” “Mediating the Luxury Single Family Home Construction Defect Case,” or “Creative Solutions to the Florida Problem: Making No Contribution and No State Law Work for You.”
12:00 p.m. – Breakout Sessions IV and the End of the Seminar
The seminar closes with the last trio of breakout sessions: “Everyone is a Small Player,” “Real World Solutions to the Real Problems Presented By Wrap Up Programs,” or “When Mother Nature Attacks, Are you Covered?”
1:30 p.m. – Lunch at Corn Dog Castle in California Adventure Park OR Hollinghead’s Delicatessen in Orange
If you’re a Disney lover, you’ll want to take advantage of the day by going to one of the Disney Resort Parks, of course. Get one of Disney’s amazing corn dogs at Corn Dog Castle in California Adventure Park.
Or if you would rather explore the greater Anaheim area, then head over to Hollinghead’s Delicatessen for a homemade sandwich and a glass of beer on tap.
3:00 p.m. – Disney Entertainment OR Museum Exploring
If you chose to go to California Adventure, check out the event schedule for the day. Catch the show Frozen – Live at the Hyperion or get a Fastpass for the Radiator Springs Racers and ride Soarin’ Around the World. If you purchased a two-park pass, don’t forget about Space Mountain or Star Tours located in the Disneyland Park.
North Orange county has many interesting museums. Head to the Bowers Museum in Santa Ana or the Muzeo in Anaheim.
7:00 p.m. – Dinner at the Blue Bayou Restaurant OR the Summit House Restaurant
Have a one-of-a-kind eating experience at the Blue Bayou in Disneyland Park. Enjoy a dinner in the midst of the Pirates of the Caribbean ride! If you wish to remain in the California Adventure Park, try an alfresco dinner at Wine Country Trattoria or an indoor, upscale meal at Carthay Circle.
After an afternoon perusing museums, enjoy a truly superb meal with attentive service at one of Anaheim’s premier restaurants, Summit House. Feeling like having some fun rather than a sedate meal? Head over to the House of Blues in Anaheim for their Party Like It’s 1999! A Prince Tribute Party.
8:30 p.m. – Paint the Night Parade/Together Forever OR The Blind Rabbit Speakeasy
Head over to watch the Paint the Night Parade at the California Adventure Park or the fireworks display, Together Forever — A Pixar Nighttime Spectacular at the Disneyland Park. Be sure to check out the daily event schedule for up to date information.
End your evening at Anaheim’s only speakeasy, the Blind Rabbit, located in the Anaheim Meat Packing district. Be sure to check out their “rules” and reserve a table at this popular spot.
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