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Preventing Acts of God: Construction Accidents Caused by Outside Factors

September 20, 2017 — Christopher G. Hill - Construction Law Musings
For this week’s Guest Post Friday here at Musings, we welcome back Seth Smiley. Seth, a native of Baton Rouge, is the owner of Smiley Law Firm. He is admitted to practice in all state and federal courts in Louisiana and California. Seth Smiley is the son of a general contractor, and acquired valuable work experience in the construction industry prior to entering law school. He earned his J.D. from Loyola, New Orleans in 2009. In his practice, Seth handles all aspects of construction cases, from initial contracting all the way to final payment once work is complete. Other areas of focus include commercial lease disputes, personal injury, business formation, and insurance property damage claims. Seth loves to fight insurance companies. Seth is currently the primary author of the Smiley Law Blog. The blogs primary focus is to provide value for current and prospective clients regarding trending legal issues in which the attorneys at Smiley Law Firm cover. There are several factors a construction team can control on a job site. The foreman can ensure scaffolding is secure and that all employees are properly trained, and all workers can take steps to ensure a reasonably safe work site. Accidents can and will happen despite the best efforts of those involved. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

2023 Construction Law Update

January 04, 2023 — Garret Murai - California Construction Law Blog
As we approach 2023 we want to wish you and yours a happy holiday season. A total of 1,726 bills were introduced during the second half of the 2021-2022 legislative session of which 997 were signed into law. This compares with the 2,421 bills introduced during the first half of the 2021-2022 of which 770 were signed into law. Among the legislation taking effect in 2023 are new laws applying to contractors include new workers’ compensation laws (even if you don’t have employees), a continuation of a record number of new housing affordability laws as well as environmental laws aimed at climate change, and, of course, as we see nearly every year, new procurement authorizations. Licensing AB 1747 – Authorizes the Contractors State License Board to issue penalties of up to $30,000 for the willful or deliberate disregard of state or local laws relating to the issuance of building permits. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Five Pointers for Enforcing a Non-Compete Agreement in Texas

June 08, 2020 — Kristopher M. Stockberger - The Grindstone Lewis Brisbois' Labor & Employment Blog
1. The Devil’s in the Details Under Texas law, for a non-compete agreement to be enforceable, it must meet strict requirements as to timing, geography, and the type of conduct that it prohibits. While courts have enforced agreements for between one and two years, your situation could be subject to a shorter time period. If the geographical scope of the agreement is too broad or vague, that could render the agreement unenforceable. Also, the type of conduct prohibited by your agreement should be tied to the specifics of your business, because categorical barriers to other employment are often not enforced. If an employer knowingly instructs an employee to enter an overbroad non-compete agreement, the employer runs the risk of paying the employee’s attorneys’ fees. 2. Timing on the Front End If an employee has been with an employer for years and the employer suddenly decides to have her sign a non-compete without any other meaningful change in the employee’s role, then the agreement will probably not be enforceable, unless the employee receives “consideration.” In this context, consideration is something of value, other than money or benefits, which the law deems to warrant protection by a non-compete agreement. For example, allowing an employee to learn the secret formula to Coca-Cola or to gain access to an employer’s confidential financials constitutes legally sufficient consideration given to an employee in exchange for the employee’s promises in a non-compete agreement. Read the court decision
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Reprinted courtesy of Kristopher M. Stockberger, Lewis Brisbois
Mr. Stockberger may be contacted at Kris.Stockberger@lewisbrisbois.com

Reversing Itself, West Virginia Supreme Court Holds Construction Defects Are Covered

July 31, 2013 — Tred Eyerly, Insurance Law Hawaii
The West Virginia Supreme Court previously held that construction defects were not covered under a CGL policy. The Court, however, reversed itself in Cherrington v. Erie Ins. Prop. & Cas. Co., 2013 W.Va. LEXIS 724 (W.V. June 18, 2013). The underlying complaint against the general contractor alleged various defects in the plaintiff’s recently constructed house, including an uneven concrete floor, water infiltration through the roof and chimney joint, a sagging support beam, and numerous cracks in the drywall walls and partitions throughout the house. Erie Insurance denied coverage. The insured general contractor sued, but the trial court found that faulty workmanship was not sufficient to give rise to an “occurrence.” The West Virginia Supreme Court reversed its prior rulings determining there was no coverage for construction defects. The court recognized its prior position was in the minority, as is Hawaii's position on coverage for construction defects. See Group Builders Inc. v. Admiral Ins. Co., 123 Haw. 142, 148, 231 P.3d 67, 73 (Haw. Ct. App. 2010). Now joining the majority position, the West Virginia Supreme Court found that defective workmanship causing property damage was an “occurrence” under a CGL policy. Further, the homeowner had demonstrated that she sustained "property damage" as a result of the allegedly defective construction of her home. The trial court also determined that the business risk exclusions barred coverage. Again, the West Virginia Supreme Court disagreed. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

Cal/OSHA-Approved Changes to ETS Will Take Effect May 6, 2022

May 16, 2022 — Matthew C. Lewis & Nicole R. Kardassakis - Payne & Fears
A new, third revised version of the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (“ETS”) has been approved by Cal/OSHA, and is expected to go into effect on May 6, 2022. This updated ETS will likely be in effect through Dec. 31, 2022. The language still needs to be reviewed, finalized, and filed with the Secretary of State by the Office of Administrative Law, but a redline of the proposed changes that Cal/OSHA has approved is available here. Much of the previous ETS (which took effect in January 2022, and we discussed here) will remain in effect. But the new version includes some key changes, including the following:

Employers will now have similar obligations toward employees who are fully vaccinated and employees who are not fully vaccinated with respect to testing and face coverings. Employers must make COVID-19 testing available at no cost to all symptomatic employees during the employee’s paid time, regardless of the employee’s vaccination status. Employers also must make respirators available to all employees upon request, again regardless of the employee’s vaccination status.

Reprinted courtesy of Matthew C. Lewis, Payne & Fears and Nicole R. Kardassakis, Payne & Fears Mr. Lewis may be contacted at mcl@paynefears.com Ms. Kardassakis may be contacted at nrk@paynefears.com Read the court decision
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WSHB Ranks No.10 in Law360’s Best of Law Firms for Women

April 28, 2016 — Beverley BevenFlorez-CDJ STAFF
Law360 recently published the survey findings and listed the “100 Best Law Firms for Female Attorneys,” and Wood Smith Henning & Berman LLP (WSHB) ranked tenth. “I was thrilled to help spearhead a recruitment committee to attract and retain female lawyer talent,” Victoria Ersoff, the first named partner at WSHB, stated. “Long before it was fashionable, the leaders at WSHB recognized that in order to retain first-class lawyers, they need to provide them with opportunities to balance their work and personal life.” Janice Michaels, managing partner of WSHB’s Las Vegas office, praised the firm for treating all attorneys equally: “Female lawyers at WSHB are on equal footing with their male counterparts, whether it’s trial experience, mentoring or expanding professional opportunities. It is a great environment to learn and grow without the impediment of a glass-ceiling.” Read the court decision
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Hawaii Supreme Court Finds Excess Can Sue Primary for Equitable Subrogation

October 21, 2015 — Tred R. Eyerly – Insurance Law Hawaii
In responding to a certified question from the U.S. Distric Court, the Hawaii Supreme Court determined that an excess carrier can sue the primary carrier for failure to settle a claim in bad faith within primary limits. St. Paul Fire & Marine Ins. Co. v. Liberty Mut. Ins. Co., 2015 Haw. LEXIS 142 (Haw. June 29, 2015). St. Paul, the excess carrier, and Liberty Mutual, the primary carrier, issued polices to Pleasant Travel Service, Inc. The primary policy covered up to $1 million. Pleasant Travel was sued for damages resulting from an accidental death. St. Paul alleged that Liberty Mutual rejected multiple pretrial settlement offers within the $1 million primary policy limit. A trial resulted in a verdict of $4.1 million against Pleasant Travel. The action settled for a confidential amount in excess of the Liberty Mutual policy limit. St. Paul paid the amount in excess. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Las Vegas Student Housing Developer Will Name Replacement Contractor

February 15, 2018 — John Guzzon – ENR
More than four months after construction abruptly stopped on a $76-million student housing project for the University of Nevada at Las Vegas, the developer is seeking a new contractor. Read the court decision
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Reprinted courtesy of John Guzzon, Engineering News- Record
Mr. Guzzon may be contacted at ENRSouthWestEditor@enr.com

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