Do You Really Want Mandatory Arbitration in Your Construction Contract?
June 25, 2019 —
Christopher G. Hill - Construction Law MusingsIf you are in construction, you have likley run across (or even drafted) a dispute resolution provision into your construction contract. If you’ve been building for any length of time, you’ve read dispute resolution provisions containing mandatory arbitration clauses. These clauses can be found in the AIA documents and in many of the contracts that I review for my clients in my role as construction lawyer and counselor. More often than not, these arbitration clauses require arbitration (read “private court”) and refer to one of several sets of rules, though most likely the American Arbitration Association (“AAA”) Construction Industry rules. In Virginia, as in most of the United States, these clauses are read liberally and enforced by courts except in limited cases such as waiver.
The main justification for requiring arbitration over litigation is to avoid the fees and expense of the litigation process. In the right circumstances, arbitration does just that. With a carefully drafted arbitration clauses and with the right case that requires expertise in construction that a judge does not have (they have to liten to all manner of disputes so are necessarily generalists), arbitration can and should be a streamlined and less expensive version of litigation.
However, in my time as a construction attorney, I have more often run into situations where the arbitration process is at least equally expensive and frankly not much more streamlined. The additional administrative burden coupled with the possibility of paying for at least half of the hourly charges of one to three arbitrators is often not worth the additional expertise of those arbitrators. Many construction claims simply come down to non-payment and whether the work was performed properly. In my opinion, the fine judges in the Commonwealth of Virginia are more than capable of hearing this evidence and making a ruling.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Newmeyer & Dillion Attorneys Listed in the Best Lawyers in America© 2017
September 01, 2016 —
Newmeyer & Dillion LLPProminent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that eight of the firm’s attorneys were recently selected for inclusion and will be recognized in their respective areas in
The Best Lawyers in America© 2017. They are:
- Michael Cucchissi: Real Estate Law
- Jeffrey M. Dennis: Insurance Law
- Gregory L. Dillion: Commercial Litigation, Construction Law, Insurance Law, Litigation- Construction, Litigation- Real Estate
- Joseph A. Ferrentino: Litigation- Construction, Litigation- Real Estate
- Thomas F. Newmeyer: Commercial Litigation, Construction Law, Litigation- Real Estate
- John A. O’Hara: Litigation- Construction
- Bonnie T. Roadarmel: Insurance Law
- Carol Sherman Zaist: Commercial Litigation
Beyond the above recognition, Greg Dillion was also named the Best Lawyers® 2017 Construction Law "Lawyer of the Year" in Orange County.
Best Lawyers is the oldest peer-review publication for the legal profession. Attorneys are chosen through intensive peer-review surveys in which leading lawyers evaluate their professional peers. Best Lawyers listings are published in almost 70 countries worldwide and are recognized for their reliable and unbiased selections.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Designers Face Fatal Pedestrian Bridge Collapse Fallout
December 08, 2016 —
Scott Judy – Engineering News-RecordThe use of “severely notched” end connections in the design of timber bridge girders that failed, sending a pair of partly completed pedestrian bridges crashing to the ground—and killing one worker—has come back to haunt the bridge engineer, architect of record and material supplier. The design detail had provoked concerns that were not fully addressed before the November 2014 accident at Wake Technical Community College in Raleigh, N.C., during an expansion project that involved several buildings and the bridges.
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Scott Judy, Engineering News-RecordMr. Judy may be contacted at
judys@enr.com
Resolve to Say “No” This Year
January 26, 2016 —
Christopher G. Hill – Construction Law MusingsWe hear all of the time how to “get to ‘yes'” and how doing so can lead to more business and of course more business leads to more profits. Purely logical, right? Without construction owners with work for general contractors to perform and general contractors hiring subcontractors to perform that work, construction grinds to a halt and clients and friends of mine in the construction industry don’t make money. For this to happen, “yes” has to happen more often than not. So, why the title of this post?
Chalk it up to spending much if not all of my time as a construction attorney either anticipating or dealing with the Murphy’s Law ruled nature of the construction world or to the “Monday morning quarterback” nature of my profession, but I see numerous instances where not taking the job or signing the bad contract would have led to a better outcome than performing the work. What do I mean by this? I mean that as a construction company (particularly one that is lower down the “payment chain” and therefore less in control of the flow of money), you need to carefully evaluate not only the contract presented, but whether you get a good feeling about the party with whom you are contracting.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
AB 685 and COVID-19 Workplace Exposure: New California Notice and Reporting Requirements of COVID Exposure Starting January 1, 2021
February 01, 2021 —
Sewar K. Sunnaa & Nathan A. Cohen - Peckar & Abramson, P.C.SUMMARY
Effective January 1, 2021, a new California law requires employers to notify employees about possible or known exposure to COVID-19 at the workplace. The law requires actual notification to employees within one day.
In addition, the law requires notifications to local public health authorities of a COVID-19 outbreak. The law also gives Cal/OSHA a new emergency police power to issue Orders Prohibiting Use (“OPU”), permitting Cal/OSHA to close workplaces that constitute an imminent hazard to employees due to COVID-19.
ANALYSIS AND GUIDANCE
On January 1, 2021, a new California law took effect, which will enforce stringent new mandatory protocols governing notification of employees of COVID-19 exposures in the workplace. Until now, federal agencies such as the Occupational Safety and Health Administration (“OSHA”) and state agencies such as the California Division of Occupational Safety and Health Administration (“Cal/OSHA”) have released guidance to help employers navigate employee training, workplace surveillance and temperature-taking, among many other issues, that have arisen during the COVID-19 pandemic. Beginning January 1st, the new law places mandatory notice requirements of COVID-19 contact on all public and private employers under Labor Code Section 6409.6, with two exceptions: (1) health facilities, as defined in Section 1250 of the Health and Safety Code and (2) employees whose regular duties include COVID-19 testing or screening, or who provide patient care to individuals who are known or suspected to have COVID-19.
Reprinted courtesy of
Sewar K. Sunnaa, Peckar & Abramson, P.C. and
Nathan A. Cohen, Peckar & Abramson, P.C.
Ms. Sunnaa may be contacted at ssunnaa@pecklaw.com
Mr. Cohen may be contacted at ncohen@pecklaw.com
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Best Lawyers® Recognizes 45 White and Williams Lawyers
September 25, 2023 —
White and Williams LLPThirty-two White and Williams lawyers were recognized in The Best Lawyers in America® 2024. Inclusion in Best Lawyers® is based entirely on peer-review. The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers® employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of quality legal services.
In addition, thirteen lawyers were recognized as Best Lawyers: Ones to Watch® in America. This recognition is given to attorneys who are earlier in their careers for outstanding professional excellence in private practice in the United States.
The firm is also pleased to announce Best Lawyers® has recognized
Christopher P. Leise as a 2024 "Lawyer of the Year" for Litigation – Insurance in Cherry Hill, NJ. Chris works with regional and national brokerage firms defending professional liability claims and handling disputes with insurance companies throughout the mid-Atlantic region, as well as with commercial insurance carriers defending allegations of bad faith.
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White and Williams LLP
Colorado Rejects Bill to Shorten Statute of Repose
May 07, 2015 —
Jesse Howard Witt – Acerbic WittThe House State, Veterans, and Military Affairs committee voted today to postpone Senate Bill 15-091 indefinitely, effectively killing the bill for the 2015 session.
As originally drafted, the bill would have given Colorado the shortest statute of repose in the United States. Senate amendments softened the impact of the bill somewhat, but it still would have reduced the amount of time that the owners of single-family homes would have to discover construction defects. Proponents argued that this was necessary because Colorado’s harsh weather conditions make it difficult for construction to last longer than five years. Opponents countered that construction defect laws only provide relief when a builder has violated a code or standard, which is unrelated to the expected lifespan of a product.
One of the Representatives noted that states like Alaska have much harsher weather patterns yet allow homeowners to bring claims up to ten years after construction is complete. Another questioned whether the bill would do anything to encourage affordable housing, a topic that has generated substantial media attention in recent months.
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Jesse Howard Witt, Acerbic WittMr. Witt welcomes comments at www.wittlawfirm.net
Avoiding Lender Liability for Credit-Related Actions in California
October 27, 2016 —
Anthony J. Carucci – Snell & Wilmer Real Estate Litigation BlogAside from general statutory prohibitions on lender discrimination, there are certain circumstances under California law in which lenders may be held liable for credit-related actions, such as negotiating or denying credit. See generally 11 Cal. Real Est. § 35:3 (explaining that the business of lending money is subject to the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq., the Fair Employment and Housing Act, Cal. Gov. Code § 12900 et seq., the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq., and the Equal Credit Opportunity Act, 15 U.S.C. § 1691, et seq.). Specifically, lenders have been held liable for credit-related actions where, among other things, the lender (1) breached a loan commitment; (2) committed fraud; or (3) breached a fiduciary duty owed to the borrower.
The Lender-Borrower Relationship
As a general rule, a lender does not owe a duty of care to a borrower when the lender’s involvement in a transaction does not exceed the scope of its conventional role as a lender of money. Oaks Management Corp. v. Superior Court (2006) 145 Cal.App.4th 453, 466 (“[I]t is established that absent special circumstances . . . a loan transaction is at arms-length and there is no fiduciary relationship between the borrower and lender.”); Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096 (holding lender owed no duty of care to a borrower in preparing an appraisal of the real property that was security for the loan when the purpose of the appraisal is to protect the lender by satisfying it that the collateral provided adequate security for the loan, and noting that “as a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money”).
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Anthony J. Carucci, Snell & WilmerMr. Carucci may be contacted at
acarucci@swlaw.com
