What You Need to Know About CARB’s In-Use Off-Road Diesel Regulations
May 20, 2024 —
Garret Murai - California Construction Law BlogIn November 2022, the California Air Resources Board (CARB) approved amendments to . . . wait for it . . . its “In-Use Off-Road Diesel-Fueled Fleet” regulations – that enough hyphens for you – which took effect on January 1, 2024. The purpose of the regulations is to reduce emissions from off-road equipment, many of which are used by construction contractors, such as forklifts, bulldozers, cranes and excavators.
Are these new regulations?
Yes and no. CARB has regulated in-use off-road diesel-fueled vehicles since 2008 and has periodically amended these regulations. The most recent amendments take effect on January 1, 2024.
What vehicles do the regulations apply to?
The regulations apply to two classes of vehicles (1) self-propelled off-road diesel-fueled vehicles of 25 horsepower (hp) or more; and (2) two-engine vehicles other than on-road two-engine sweepers. The regulations apply to both owned as well as rented and leased vehicles. As used in this article, the term “vehicle(s)” refers to these two classes of vehicles.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
The Need for Situational Awareness in Construction
January 27, 2020 —
Aarni Heiskanen - AEC BusinessRecent research backs up what we already know from practice: construction work is suboptimal. What happens on a construction site has not kept up with the demands of an increasingly complex work environment. Situational awareness could give on-site employees the necessary means to finally reap the productivity benefits of digitalization.
Under the guidance of Professor Olli Seppänen, research teams at the Finnish Aalto University have delved into everyday conditions at a construction site. With the workers’ permission, they used video cameras, sensors, and surveys to locate the bottlenecks in productivity. The researchers also monitored the movement of products and materials on a construction site. The results are eye-opening.
According to Aalto’s data, digitalization has not improved the productivity of construction foremen and workers. A typical worker still spends up to 70% of their time on activities that add no value: searching for information, unnecessary movement, and waiting. Construction materials are moved from place to place six times on the site before being consumed. In addition, especially on large construction sites, machinery often goes missing or is displaced.
Read the court decisionRead the full story...Reprinted courtesy of
Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Owners Should Serve Request for Sworn Statement of Account on Lienor
August 10, 2017 —
David Adelstein - Florida Construction Legal UpdatesWhen an owner receives a construction lien, an owner should serve the lienor with a Request for Sworn Statement of Account. The Request for Sworn Statement is authorized by Florida Statute s. 713.16(2) and should be in the following form:
REQUEST FOR SWORN STATEMENT OF ACCOUNT
WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT, SIGNED UNDER OATH, WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL RESULT IN THE LOSS OF YOUR LIEN.
To: (Lienor’s name and address)
The undersigned hereby demands a written statement under oath of his or her account showing the nature of the labor or services performed and to be performed, if any, the materials furnished, the materials to be furnished, if known, the amount paid on account to date, the amount due, and the amount to become due, if known, as of the date of the statement for the improvement of real property identified as (property description) .
(name of contractor)
(name of the lienor’s customer, as set forth in the lienor’s Notice to Owner, if such notice has been served)
(signature and address of owner)
(date of request for sworn statement of account)
From both an owner and lienor’s perspective, the bolded, capitalized language is key. It states that if the lienor fails to respond under oath within 30 days, it will LOSE its lien. That is a very punitive measure for a lienor’s failure to respond, meaning a lienor should absolutely respond, no questions asked. Plus, a lienor’s response to a Request for Sworn Statement of Account is not a burdensome ordeal.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
Dadelstein@gmail.com
Domtar Update
June 11, 2014 —
Robert M. Caplan – White and Williams LLPOn May 29, 2014, the Pennsylvania Supreme Court granted allocatur—i.e., the permission to appeal—in the controversial subrogation case, Liberty Mutual Ins. Co. v. Domtar Paper Co., 77 A.3d 1282 (Pa. Super. Ct. 2013). In its order granting the relief to Liberty Mutual, a workers’ compensation insurer, the Supreme Court set forth the narrow issue to be decided on appeal: “Does Section 319 of the Pennsylvania Workers’ Compensation Act, 77 P.S. § 671, allow the employer/insurer to step into the shoes of the insured employee to subrogate against the tortfeasor?”
In Domtar, Liberty Mutual was caused to incur approximately $35,000 in compensation benefits which it paid on behalf of George Lawrence, an employee of Liberty Mutual’s insured, for injuries he sustained in a work-related accident. Mr. Lawrence chose not to file an independent personal injury lawsuit. As a result, in order to recover its lien interests, Liberty Mutual sued the third parties responsible for causing Mr. Lawrence’s work-related injuries directly, having become subrogated to the rights of Mr. Lawrence by virtue of Liberty Mutual’s workers’ compensation expenditure on his behalf.
Read the court decisionRead the full story...Reprinted courtesy of
Robert M. Caplan, White and Williams LLPMr. Caplan may be contacted at
caplanr@whiteandwilliams.com
Spearin Doctrine: Alive, Well and Thriving on its 100th Birthday
January 15, 2019 —
John P. Ahlers - Ahlers Cressman & Sleight PLLCOn December 9, 2018, United States v. Spearin, [1] a landmark construction law case, will be 100 years old. The Spearin “doctrine”[2] provides that the owner impliedly warrants the information, plans and specifications which an owner provides to a general contractor. The contractor will not be liable to the owner for loss or damage which results from insufficiencies or defects in such information, plans and specifications.
Some construction lawyers questioned whether the Spearin doctrine was still viable in Washington after the Washington Court of Appeals decided the recent case of King County v. Vinci Constr. Grand Projets.[3] Some concerned contractor industry groups even considered a “statutory fix” in the wake of the Court of Appeals Vinci decision. It is our opinion that the facts in the Vinci case are distinguishable and the Spearin doctrine is alive and thriving in Washington.
Read the court decisionRead the full story...Reprinted courtesy of
John P. Ahlers, Ahlers Cressman & Sleight PLLCMr. Ahlers may be contacted at
john.ahlers@acslawyers.com
OSHA Updates: You May Be Affected
July 19, 2017 —
Louis “Dutch” Schotemeyer – Newmeyer & Dillion LLPGovernor Brown Signs Legislation Increasing Cal/OSHA Fines
Cal/OSHA has increased its maximum fines for the first time in more than twenty years pursuant to legislation recently signed into law by Governor Brown. The changes nearly double the maximum fines and have brought California in line with the Federal standard. The increase in fines will not be isolated to this year, as fines will now be automatically increased annually based on the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U). Additionally, any employer who repeatedly violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, can no longer receive any adjustment of a penalty assessed based on the good faith or the history of previous violations. Such adjustments were previously commonplace.
Specific increases are listed below (all increases refer to maximum fines, Cal/OSHA has discretion as to the amount of the fine when issuing the citation):
- Section 6427 of the Labor Code was amended to increase fines, not of a serious nature, from $7,000 for each violation to $12,471 for each violation.
- Section 6429 of the Labor Code has increased fines for repeat violations; raising the maximum fine from $70,000 to $124,709 for each violation. Additionally, Section 6429 also raised the minimum fine for repeat violations from $5,000 to $8,908.
- Section 6431 raised fines for posting or recordkeeping violations from $7,000 to $12,471 per violation.
Full text of the penalty section of the labor code may be found
here
California OSHA Emergency Action Plan elements revised; California now more consistent with Federal Standards
Revisions to General Safety Orders section 3220(b) became effective on June 5, 2017 and contain two minor changes for California employers with regards to Emergency Action Plans (EAP).
The first change requires that an employer’s EAP be more detailed in describing the type of evacuation that is to be performed, not just the route for an evacuation. The previous element of the EAP simply required that the plan contain, “[e]mergency escape procedures and emergency escape route assignments.” The current element of the EAP requires that, “[p]rocedures for emergency evacuation, including type of evacuation and exit route assignments,” be identified.
The second change clarifies the language surrounding employees performing rescue or medical duties. Previously the only requirement in the EAP regarding rescue and medical duties was for employees that performed rescue and medical duties. The current version requires that the EAP contain, “[p]rocedures to be followed by employees performing rescue or medical duties. The use of the word and created potential gaps in plans as it is likely that employees may not be performing both rescue and medical duties, instead performing just rescue or medical duties. Plans must now include procedures to be followed by employees who perform either rescue or medical duties.
It is recommended that your EAP be in writing and updated to comply with the revised General Safety Orders section 3220. The full text of General Safety Orders section 3320 can be seen
here. Please contact us if you would like further details regarding your Emergency Action Plan.
Deadline for Electronic Submission of OSHA 300 Log Records for Injuries and Illnesses Delayed
On May 12, 2016, the Federal Occupational Safety and Health Administration (OSHA) published a rule entitled “Improve Tracking of Workplace Injuries and Illnesses” which required certain employers subject to Federal OSHA regulations to submit the information from their completed 2016 Form 300A to OSHA via electronic submission no later than July 1, 2017. On June 28, 2017, OSHA, via a
Notice of Proposed Rule Making, has proposed a December 1, 2017 deadline for the electronic reporting; the electronic reporting system is scheduled to be available on August 1, 2017.
Per the California Department of Industrial Relations, California employers are not required to follow the new requirements and will not be required to do so until "substantially similar" regulations go through formal rulemaking, which would culminate in adoption by the Director of the Department of Industrial Relations and approval by the Office of Administrative Law.
Cal/OSHA drafted a proposed rulemaking package to conform to the revised federal OSHA regulations by amending the California Code of Regulations, title 8, sections 14300.35, 14300.36, and 14300.41; these are currently under review with the State.
It is currently unclear what, if any, impact the delay by OSHA will have on the proposed amendments to the California Code.
We will keep you posted as to the changes in California recordkeeping requirements. Please contact Louis “Dutch” Schotemeyer with any questions regarding Cal OSHA or your safety program. Dutch is located at Newmeyer & Dillion’s Newport Beach office and can be reached at dutch.schotemeyer@ndlf.com or by calling 949.271.7208.
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.
Read the court decisionRead the full story...Reprinted courtesy of
Hail Drives Construction Spending in Amarillo
October 25, 2013 —
CDJ STAFFAmarillo had a hailstorm in May and it’s still having an effect on the construction industry there. Prior to the May 28 hailstorm, the city issued 223 permits for roofing projects, worth a total of $1.9 million. But in the four months after the hailstorm, the city issued 13,696 roofing permits worth about $151.4. During the same nine months of 2012, the total was only $6.9 million.
The Amarillo Globe-News reports that there has been a slowing of residential roof work, but the commercial roofing is still going strong. Scott McDonald, an Amarillo building official told the paper that a commercial roof can exceed a million dollars. “The commercial aspect is much more complicated, and we’re just now getting started,” said Mr. McDonald.
Read the court decisionRead the full story...Reprinted courtesy of
No Duty to Indemnify When Discovery Shows Faulty Workmanship Damages Insured’s Own Work
November 07, 2012 —
CDJ STAFFOur post last week addressed the duty to defend when alleged faulty workmanship caused loss to property adjacent to where the insured was working. See Pamerin Rentals II, LLC v. R.G. Hendricks & Sons Constr., Inc., 2012 Wis. App. LEXIS 698 (Wis. Ct. App. Sept. 5, 2012) [post here]. Today, we report on recent developments in the same case where the court determined, despite earlier finding the insurer owed a defense, it had no duty to indemnify. Pamperin Rentals II, LLC v. R.G. Hendricks & Sons Constr., Inc., 2012 Wisc. App. LEXIS 793 (Wis. Ct. App. Oct. 10, 2012).
Hendricks contracted to “prepare the site and supply and install concrete, tamped concrete, and colored concrete” at several service stations. The owner sued Hendricks, alleging the concrete “was defective and/or the work performed was not done in a workman-like manner and resulted in damages, and will require replacement.”
Pekin Insurance Company agreed to defend Hendricks subject to a reservation of rights.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law Hawaii.Mr. Eyerly can be contacted at
te@hawaiilawyer.com
