Drafting a Contractual Arbitration Provision
February 11, 2019 —
David Adelstein - Florida Construction Legal UpdatesA recent Florida case discussing a contractual arbitration provision in a homebuilder’s contract discussed the difference between a narrow arbitration provision and a broad arbitration provision. See Vancore Construction, Inc. v. Osborn, 43 Fla.L.Weekly D2769b (Fla. 5th DCA 2018). Understanding the distinction between the two types of arbitration provisions is important, particularly if you are drafting and/or negotiating a contractual arbitration provision.
A narrow contractual arbitration provision includes the verbiage “arises out of” the contract such that disputes arising out of the contract are subject to arbitration. Arbitration is required for those claims the have a direct relationship with the contract.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Subcontractor’s Claim against City Barred by City’s Compliance with Georgia Payment Bond Statute
March 29, 2017 —
Chadd Reynolds – Autry, Hanrahan, Hall & Cook, LLPIn a recent Georgia Court of Appeals case, the Court was tasked with determining whether the City of Atlanta’s compliance with the Georgia Payment Bond Statutes barred a subcontractor from recovery against it after the general contractor failed to pay and the surety became insolvent.
Squared Plumbing Co., LLC (J. Squared), was a subcontractor on a project to clean up sewage spills in approximately 100 dwellings for the City of Atlanta. As required by the contract executed with the City, the general contractor, Scott and Sons Holdings, LLC (Scott and Sons), obtained a $200,000 payment bond from its surety, First Seaford Surety, Inc. (First Seaford). J. Squared sought to collect on the payment bond when Scott and Sons failed to pay J. Squared for the work it performed on the project. However, First Seaford became insolvent. J. Squared subsequently filed a claim against Scott and Sons and the City to recover $140,000 for its work on the project.
Read the court decisionRead the full story...Reprinted courtesy of
Chadd Reynolds, Autry, Hanrahan, Hall & Cook, LLPMr. Reynolds may be contacted at
reynolds@ahclaw.com
Real Estate & Construction News Round-Up (11/03/21)
December 06, 2021 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogAmenity-rich buildings become a key focus in enticing employees back into the office, supply chain links are strained by a lack of storage capacity in warehouses and port areas, green lease signings are on the uptick, and more.
- In an effort to draw employees back into the office and retain talent in a tight labor market, businesses are spending more than ever on upscale workspaces, paying high rents for modern, amenity-rich buildings. (Peter Grant, The Wall Street Journal)
- As sustainability and ESG factors become increasingly important, net-zero carbon commitments are emerging as the next big “must-have” for commercial real estate owners, as more than 100 businesses and organizations have signed on to the World Green Building Council’s Net Zero Carbon Buildings Commitment, which seeks to decarbonize the buildings sector by 2050 and get halfway there by 2030. (Elsa Wenzel, GreenBiz)
Read the court decisionRead the full story...Reprinted courtesy of
Pillsbury's Construction & Real Estate Law Team
Good News on Prices for Some Construction Materials
June 28, 2021 —
ABC - Construction ExecutiveThe elevated price of softwood lumber, a major talking point during much of the pandemic, appears to have peaked in early May at more than $1,700 per thousand board feet. As of June 23, the price has fallen below $900 per board feet, down about 49% in less than two months.
That’s still an unusually lofty price by historic standards—prices remain almost twice as high as in February 2020—but the trend is very much in the right direction. Builders that had been hoarding lumber have now begun to sell from their own inventory, other builders have delayed lumber purchases in anticipation of lower prices and sawmill operators have been adding shifts, as well as expanding capacity, all of which puts downward pressure on prices.
Reprinted courtesy of
ABC, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
New York Shuts Down Majority of Construction
March 30, 2020 —
Laura Bourgeois LoBue & Matthew D. Stockwell - Gravel2Gavel Construction & Real Estate Law BlogDue to pressure from construction workers, officials, and some construction workers having tested positive for COVID-19, the Empire State Development Corp. (acting on behalf of Governor Cuomo) has frozen all construction in New York today, with the exception of work on hospitals and health care facilities, transit facilities, roads and bridges, affordable housing and homeless shelters.
As a result, commercial construction and condominium projects are on hold, with the exception of work that must be completed to prevent unsafe conditions. Until now, construction has been considered “essential” in New York.
Reprinted courtesy of
Laura Bourgeois LoBue, Pillsbury and
Matthew D. Stockwell, Pillsbury
Ms. LoBue may be contacted at laura.lobue@pillsburylaw.com
Mr. Stockwell may be contacted at matthew.stockwell@pillsburylaw.com
Read the court decisionRead the full story...Reprinted courtesy of
The EPA and the Corps of Engineers Propose Another Revised Definition of “Waters of the United States”
February 14, 2022 —
Anthony B. Cavender - Gravel2GavelOn December 7, 2021, the most recent proposed revision to the Clean Water Act’s term, “Waters of the United States” was published in the Federal Register. (See 86 FR 69372.) Comments on this proposal must be submitted by February 7, 2022. This term controls the scope of federal regulatory powers in such programs as the development of water quality standards, impaired waters, total maximum daily loads, oil spill prevention, preparedness and response plans, state and tribal water quality certification programs, the National Pollutant Discharge Elimination System (NPDES) permit program, and the Corps of Engineers’ dredge and fill program. The Environmental Protection Agency (EPA) and the Corps of Engineers have jointly drafted this comprehensive proposed rule, which also responds to President Biden’s Executive Order 13990, issued in January 2021.
Background
The agencies noted that they have repeatedly defined and re-defined “Waters of the United States” since the Clean Water Act was enacted in 1972. This level of sustained commitment is unique to this program, perhaps reflecting the importance of the programs that are implemented through the Clean Water Act. The most recent rulemaking efforts took place in 2015, 2017, 2020 and now 2022, and the Supreme Court has issued several landmark rulings in response to these efforts. See City of Milwaukee v. Illinois, 451 US 304 (1981), United States v. Riverside Bayview, 474 US 121 (1985), SWANCC v. United States, 531 US 159 (2001), Rapanos v. United States, 547 US 715 (2006), National Association of Manufacturers v. Department of Defense, 138 S Ct 617 (2018), and County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S, Ct 1462 (2020). The rules promulgated in 2015 and entitled, “Clean Water Act: Definition of Waters of the United States” expanded the scope of federal regulatory jurisdiction, but the 2020 rule, entitled the “Navigable Waters Protection Rule,” contracted that scope. Now, the agencies have proposed the “Revised Definition of ‘Waters of the United States,’” which will rescind the 2020 rule and inevitably restore something of the scope of the 2015 rule by returning to the familiar “1986 rules” that were issued by the Corps of Engineers in 1986 and EPA in 1988, as modified by the recent Supreme Court decisions mentioned above. Both the 2015 and 2020 rules were mired in litigation and the Corps and EPA view the resort to the 1986 rules as a fresh start for the Clean Water Act. In short, the topsy-turvy history of regulation under the Clean Water Act continues.
Read the court decisionRead the full story...Reprinted courtesy of
Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Construction Law- Where Pragmatism and Law Collide
January 06, 2020 —
Christopher G. Hill - Construction Law MusingsIf there is one “theme” to Construction Law Musings, those that read regularly hopefully see that I take my role as counselor to construction companies seriously. Aside from the fact that litigation and arbitration are both expensive and not a great way for any business, particularly a construction business, to make money, I have found construction professionals to be a pragmatic group of people that would rather solve a problem than go to court.
I have also discussed the need for a good foundation for the project in the form of a well drafted and properly negotiated contract. This contract sets out the rights of the parties and essentially makes the “law” for your construction project. Virginia courts will not renegotiate the terms for you and while this can lead to problems where parties either don’t understand the terms or don’t work to level the terms, it does mean that the parties know what the expectations are where the expectations are properly set, preferably with the help of your friendly neighborhood construction attorney and counselor at law. Practical considerations such as your feel for the other party and which terms are worth forgoing the work for should drive your considerations almost as much as the legal implications.
Read the court decisionRead the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
New York Construction Practice Team Obtains Summary Judgment and Dismissal of Labor Law Claims
October 01, 2024 —
Lewis Brisbois NewsroomNew York, N.Y. (August 23, 2024) – In Trujillo-Cruz v. City of New York, et al., New York Partner Inderjit Dhami, a member of New York Partner Meghan A. Cavalieri’s Construction Practice Team, recently obtained summary judgment and dismissal of the plaintiff's Labor Law §240(1), §241(6) and §200 claims dismissing the entire case against national developer and construction company clients.
The plaintiff alleged to have sustained injuries as the result of a construction site accident occurring on July 11, 2018, while in the scope of his employment as a laborer in connection with the construction/renovation of a residential apartment building in Brooklyn, New York. Specifically, the plaintiff alleged that he was injured when he was coming down from a ladder and fell on a 2”x 4”, causing him disabling injuries. The plaintiffs’ counsel articulated a $3 million settlement demand.
Labor Law §240(1) imposes absolute liability on a defendant where an injured worker engaged in the performance of covered construction work establishes that a safety device proved inadequate to shield him from elevation-related harm, and that the defendant’s failure to provide an adequate safety device proximately caused the injuries alleged. The plaintiff first testified that he stepped on the 2” x 4” after he came down off of the ladder, but his counsel then prompted him to recalibrate his testimony by asking whether the accident arose when he was coming down the ladder or after he had come down off of the ladder. The plaintiff changed his testimony, alleging that the accident arose as he was coming down the ladder and that he remained partially on the ladder when he stepped on the piece of formwork and fell. Inderjit argued that the plaintiff’s reframing of his deposition testimony was immaterial for purposes of the Labor Law § 240 (1) analysis. Irrespective of whether the plaintiff was on solid ground or had one foot on the ladder at the time of the occurrence, his Labor Law § 240 (1) claim was unavailing in that the accident did not arise as a result of the type of extraordinary elevation-related peril protected by Labor Law § 240 (1). Justice Maslow agreed and dismissed the plaintiff’s Labor Law § 240 (1) claims.
Read the court decisionRead the full story...Reprinted courtesy of
Lewis Brisbois
