A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge
March 22, 2021 —
Anthony B. Cavender - Gravel2GavelFebruary saw the usual array of significant environmental decisions and federal regulatory notices.
THE FEDERAL COURTS
U.S. Court of Appeals for the District of Columbia
Luminant Generation v. EPA
The court will be grappling with a difficult venue case governed by the Clean Air Act (42 USC Section 7607(b)). In 2013, the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court upheld the affirmative defenses that were made part of the Texas State Implementation Plan (SIP) and which applied to certain unpermitted emissions from regulated sources during periods of startup, shutdown or malfunction. These defenses were challenged in the Fifth Circuit and were rejected. On the national stage, EPA has been involved in litigation over these affirmative defenses and recently excluded from a “SIP Call” the Texas program, which was carved out. This EPA decision is being challenged in the DC Circuit (see Case number 20-1115),with the State of Texas arguing as an intervenor that any issues involving Texas belong in the Fifth Circuit, and not in the DC Circuit because the Act allows regional issues to be decided in the regional federal courts.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Additional Insured Is Covered Under On-Going Operations Endorsement Despite Subcontractor's Completion of Work
December 20, 2017 —
Tred Eyerly - Insurance Law HawaiiAlthough the homeowners did not own their homes when the subcontractors completed their work, the general contractor was still covered as an additional insured for the homeowners' suits based on the ongoing operations endorsement in the subcontractors' policies. McMillin Mgmt. Servs. v. Fin. Pac. Ins. Co., 2017 Cal. App. LEXIS 1000 (Cal. Ct. App. Nov. 14, 2017).
McMillin was the developer and general contractor for the project. Among the subcontractors were Martinez Construction Concrete Contractor, Inc. and Rozema Corporation. Martinez performed concrete flatwork between 2003 and November 2005. Rozema performed lath and stucco work between March 2003 and October 2005.
Lexington issued CGL policies to Martinez and Rozema. McMillin was an additional insured under both policies, "but only with respect to liability arising out of your [i.e., Martinez's or Rozema's] ongoing operations performed for [McMillin]." An exclusion provided that the insurance did not apply to property damage occurring after the insured subcontractor had completed operations on behalf of the additional insured.
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Tred Eyerly, Insurance Law HawaiiMr Eyerly may be contacted at
te@hawaiilawyer.com
Boys (and Girls) of Summer: New Residential Solar Energy System Disclosures Take Effect January 1, 2019
October 02, 2018 —
Garret Murai - California Construction Law BlogAs we come to the end of Summer, the California Contractors State License Board advises licensees that it has finalized its Solar Energy System Disclosure Document. The Solar Energy System Disclosure Document, required under Business and Professions Code Section 7169 as amended by Assembly Bill 1070 in 2017, requires that the disclosure language of the document be:
- Included in all contracts providing for the installation of a “solar energy system” on a residential building;
- Included on the front page or cover page of the contract;
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
U.S. Supreme Court Limits the Powers of the Nation’s Bankruptcy Courts
June 11, 2014 —
Earl Forte – White and Williams LLPOn June 9, 2014, the Supreme Court of the United States issued its much-awaited decision in Executive Benefits Insurance Agency v. Arkison, Chapter 7 Trustee of Estate of Bellingham Insurance Agency, Inc., Case No. 12-1200, in which the court confirmed that the power of the nation’s bankruptcy courts to hear and decide cases involving state-created private rights in which the bankruptcy proof of claim process has not been directly invoked, is severely limited by Article III of the Constitution of the United States.
The decision in Executive Benefits, while providing some clarity to practitioners and the public following the Court’s June 2011 decision in Stern v. Marshall, 131 S. Ct. 2594 (2011), nevertheless will make a substantial portion of bankruptcy litigation matters more cumbersome and potentially more expensive to guide through the bankruptcy system. Clients and practitioners are best advised to hire knowledgeable counsel to help navigate the more complex procedural waters created by this decision.
Although the Court in Executive Benefits did resolve a pending procedural question that had dogged practitioners since Stern was decided in 2011, the Court’s decision in Executive Benefits now makes it abundantly clear that many disputes that were previously heard and decided in the nation’s bankruptcy courts can no longer be decided there and must be submitted to the district courts for full de novo review and entry of a final judgment or order. It is difficult to see how this decision will not make bankruptcy litigation more cumbersome and expensive by adding an additional layer of judicial involvement to many matters, notably to fraudulent transfer and other avoidance “claw back” actions that historically have been decided in the bankruptcy courts and used famously in Madoff and other cases as an efficient device for creating value for creditors.
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Earl Forte, White and Williams LLPMr. Forte may be contacted at
fortee@whiteandwilliams.com
Remodel Gets Pricey for Town
December 30, 2013 —
CDJ STAFFUsually when home gets remodeled, it’s the homeowners who encounter unexpected expenses, but in Clearwater, Florida, it’s the town. Clearview has spent about $40,000 trying to determine if changes to a home are a “substantial improvement,” and the bill could get bigger, according to TBNweekly.com.
The home in question, that of David and Aileen Blair, is in a flood zone, and city rules would require the alterations to comply with flood drainage-resistance provisions, but only if it is a “substantial improvement.” The Blairs applied for the remodel permit in April 2001, and it was granted more than 10 years later, in July 2011. Work started soon after until the city put a stop to it.
The Blairs sued, claiming that as the city issued the permit, they assumed the plans were approved, and that the partially-completed renovation now diminishes the value of their home. The city has approved an additional $160,000 in outside legal counsel to respond to the Blair’s lawsuit.
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Subrogation Waiver Unconscionable in Residential Fuel Delivery Contract
April 29, 2024 —
Ryan A. Bennett - The Subrogation StrategistIn a matter of first impression, the Superior Court of Connecticut (Superior Court), in American Commerce Ins., Co. v. Eastern Fuel Corp., No. CV-206109168-S, 2024 Conn. Super. LEXIS 380, held that a waiver of subrogation provision in a consumer fuel service/delivery contract violated public policy. The Superior Court overruled the motion for summary judgment filed by Eastern Fuel Corporation (Eastern) and determined that the clause was impermissible as the contract was entered into by two parties with unequal bargaining power.
American Commerce Insurance Company (American) provided property insurance to Arlene and James Hillas (the Insureds) for their home in Woodbridge, Connecticut. The Insureds hired Eastern to service their heating system on or around October 25, 2018. The service work at the property included inspecting the oil filters and flushing the fuel lines. On November 1, 2018, when the Insureds turned the heating system on for the first time that season, the two oil tanks on the property were allegedly full. After a series of deliveries, claims that the oil levels were lower than expected, discovering oil staining on the floor and Eastern’s replacement of the oil lines, Eastern delivered another 429 gallons. However, after the delivery, additional leaks were discovered relating to the oil line replacements. Ultimately, the Insureds submitted a claim to American and American paid in excess of $59,000 for the damage incurred.
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Ryan A. Bennett, White and Williams LLPMr. Bennett may be contacted at
bennettr@whiteandwilliams.com
Anatomy of a Data Center
October 28, 2024 —
Robert A. James & Matt Olhausen - Gravel2Gavel Construction & Real Estate Law BlogTraditional and social media are thick with reports and predictions of the remarkable increase in size, power consumption and significance of data centers. Not only technology companies but real estate and energy developers, investment funds, lenders, and professionals of all stripes are in or determined to enter this sector. Our inboxes are full—it’s data center this, data center that.
But what exactly is a data center? What infrastructure, technology and human resources come together to create and sustain one of these localized points of computation? By understanding their components, we can glean some understanding of the business, public policy and (our focus) legal issues that arise before and during their operation.
In this article, we cite key characteristics of a reference Blackacre Data Center, with occasional glances at other (real) structures that offer variations on themes. Blackacre is a composite of several centers we have encountered in our law practice. These facilities differ widely in size, location and functions, so your mileage will vary.
Reprinted courtesy of
Robert A. James, Pillsbury and
Matt Olhausen, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Mr. Olhausen may be contacted at matt.olhausen@pillsburylaw.com
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Jobsite Safety Should Be Every Contractors' Priority
December 09, 2019 —
Ray Reese - Construction ExecutiveAny general contractor understands the range of factors that go into building and sustaining a successful jobsite: hiring the right team, maintaining cutting-edge equipment, ensuring constant communication with clients and effectively leveraging the newest building technologies, just to name a few.
But any good general contractor understands that there is one factor that should always be considered as top priority: jobsite safety.
The health and wellbeing of a project’s team is paramount for obvious reasons, and it isn’t a lighthearted matter. Injuries and fatalities have too often been a piece of our industry’s story. In 2017 alone, there were 971 reported deaths on construction sites, which accounted for 20% of total worker fatalities, according to a report from the Occupational Safety and Health Administration. Of these 971 fatalities, 582 were the result of construction’s “fatal four”—falls, workers being struck by objects, electrocutions and workers being caught between equipment. For members of the industry, these are difficult numbers to read and to process; yet, it is extremely important to consider the injuries and lives lost when we take into consideration the seriousness of jobsite safety.
Often, general contractors’ and superintendents’ greatest challenge isn’t being convinced of the necessity of jobsite safety practices in protecting employees or the value of safety in creating a productive work environment. Instead, the focus should be providing industry leaders tips on exactly how to improve safety measures on their own jobsites. Understanding that safety is everyone’s responsibility is paramount.
Reprinted courtesy of
Ray Reese, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Reese may be contacted at
rreese@rives.com
