Green Home Predictions That Are Best Poised to Come True in 2014 and Beyond (guest post)
July 16, 2014 —
Melissa Dewey Brumback – Construction Law in North CarolinaToday, a guest post on the green design issues that are becoming realities from Penny Olmos, who is associated with Holloway Houston, Inc. a leading industrial lifting equipment manufacturing company. Welcome, Penny!
The scorching heat singed us and the winter wave chilled us — more than ever before. What are we heading to? Earthquakes, volcanoes, tsunamis, tornadoes and extreme temperatures? Mother Nature is warning us in myriad ways. And the good news is that we are heeding her calls after long. Saving our natural resources and going green has found many takers. We have seen many eco-friendly homes and buildings designed and created in the last decade. Green homes are here to stay. We look at the popular green home design and construction trends in 2014 that are about to transform the landscape of green realty.
Rise of Net Zero Energy Homes
It seemed impossible until a couple of years ago but 2014 will witness a rise in net zero energy homes. These are homes with zero net energy consumption. The total amount of energy used by these buildings annually equals the amount of renewable energy created on the property. This is the greenest and the most energy efficient house you can possess. And you do not need to cut down on any of your comforts. There are heating, cooling, entertainment and utility appliances functioning in the house like they would in any other home.
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Melissa Dewey Brumback, Construction Law in North CarolinaMs. Brumback may be contacted at
mbrumback@rl-law.com
Contractors: A Lesson on Being Friendly
April 06, 2016 —
Garret Murai – California Construction Law BlogI know.
You’re just trying to be friendly.
Don’t.
Particularly when you’re a contractor bidding on a public works project.
Those dinners at swanky restaurants, tickets to The Jersey Boys, and all expense paid trips to the Napa Valley have a way of appearing less “friendly” in hindsight, and more like bribery, or as they say, “pay to play.”
In Sweetwater Union High School District v. Gilbane Building Company, California Court of Appeals for the Fourth District, Case No. D067383 (February 24, 2016), three contractors, Gilbane Building Company (“Gilbane”), The Seville Group, Inc. (“Seville”) and Gilbane/SGI Joint Venture (“Gilbane/SGI”) (collectively “Contractors”) were sued by the Sweetwater Union School District (“District”) to void their contracts with the District and for disgorgement of all monies paid to them under Government Code section 1090 after it was discovered that the Contractors had engaged in a “pay to play” scheme involving several officials of the District.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Assembly Bill 1701 Contemplates Broader Duty to Subcontractor’s Employees by General Contractor
August 17, 2017 —
Richard H. Glucksman, Esq. & Chelsea L. Zwart, Esq. – Chapman Glucksman Dean Roeb & BargerAB 1701 recently passed the Assembly and is pending in the Senate’s Labor and
Industrial Relations and Judiciary Committees. The Bill, if signed by the Governor, would
create a new section in the California Labor Code (Section 218.7) making “direct contractors” –
defined as a contractor “making or taking a contract in the state for the erection, construction,
alteration, or repair of a building, structure, or other private work” – liable for wages a
subcontractor or sub-subcontractor fails to pay to its employee for work included in the general
contractor’s contract with the project owner.
Under the new law, direct contractors would be liable for up to one year from the date of
completion of the work for unpaid wages, fringe benefits, health and welfare benefits, and
pension fund contributions, including interest and state tax payments owed to a subcontractor’s
employee. The employee, however, would not be able to recover penalties or liquidated
damages from the general contractor.
AB 1701 would give the employee, Labor Commissioner, or a joint labor-management
cooperation committee the right to enforce the direct contractor’s liability through a civil action.
It would also extend to third parties who are owed fringe or other benefit payments or
contributions on the employee’s behalf. Pursuant to the proposed language of the new statute, a
prevailing plaintiff in such an action would be entitled to their reasonable attorneys’ fees and
costs, including expert witness fees.
Although Labor Code § 218.7 would impose certain obligations on the subcontractor to
provide the direct contractor with relevant project and payroll records, the subcontractor’s failure
to comply with those obligations does not relieve the direct contractor from liability.
Impact
AB 1701’s apparent purpose is to protect employees, an undeniably important legislative
goal. However, if passed, the bill could greatly increase general contractors’ exposure when
subcontracting work and their cost of doing business. Especially because the new law would not
impact existing laws requiring a direct contractor to timely pay a subcontractor.
As a result, many coalitions against AB 1701 stress the halting effect this could have on
the construction industry as a whole, particularly private construction, which is not as heavily
regulated as public works.
CGDRB will continue to monitor this Bill and provide updates as developments occur.
Reprinted courtesy of
Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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First Circuit Limits Insurers’ Right to Recoup Defense Costs or Settlement Payments
April 02, 2024 —
Eric Hermanson, Austin Moody & Victoria Ranieri - White and Williams LLPWeighing in on an issue that has divided courts nationwide, the U.S. Court of Appeals for the First Circuit has ruled that an insurer under Massachusetts law has no right to recoup defense costs, or amounts the insurer pays in settlement – even if the insurer reserves rights prior to payment and obtains a ruling, after the fact, that no defense or indemnity was owed. Berkley Natl. Ins. Co. v. Atlantic-Newport Realty LLC, No. 22-1959, 2024 U.S. App. LEXIS 4115 (1st Cir. Feb 22, 2024) (“Granite Telecomm"). However, the First Circuit rested its ruling on narrow procedural grounds, which may prolong the controversy rather than resolve it.
The insureds in Granite Telecomm owned a company cafeteria. They were sued by a food service worker who suffered a foot infection after being exposed to bacteria during a sewage backup. They sought coverage from their insurer, Berkley. Berkley argued that coverage was barred by a fungus and bacteria exclusion in the policy. The insureds disagreed. They threatened suit under M.G.L. ch. 93A, and demanded that Berkley defend the case.
Reprinted courtesy of
Eric Hermanson, White and Williams LLP,
Austin Moody, White and Williams LLP and
Victoria Ranieri, White and Williams LLP
Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com
Mr. Moody may be contacted at moodya@whiteandwilliams.com
Ms. Ranieri may be contacted atranieriv@whiteandwilliams.com
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Insurance Policies Broadly Defining “Suits” May Prompt an Insurer’s Duty to Defend and Indemnify During the Chapter 558 Pre-Suit Notice Process
May 30, 2018 —
Daniel Garcia - Gordon & Rees Construction Law BlogIn Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Company, No. SC16-1420, 2017 WL 6379535 (Fla. Dec. 14, 2017), the Florida Supreme Court addressed whether the notice and repair process set forth in chapter 558, Florida Statutes, constitutes a “suit” within the meaning of a commercial liability policy issued by Crum & Forster Specialty Insurance Company (“C&F”) to Altman Contractors, Inc. (“Altman”). The Court found that because the chapter 558 pre-suit process is an “alternative dispute resolution proceeding” as included in the definition of “suit” in the policy by C&F to Altman, C&F had a duty to defend Altman during the chapter 558 process, prior to the filing of a formal lawsuit.
Chapter 558, titled “Construction Defects,” sets forth procedural requirements before a claimant may file a construction defect action. It requires a claimant to serve a written notice of claim on the applicable contractor, subcontractor, supplier, and/or design professional prior to filing a construction defect lawsuit. The legislature intended for Chapter 558 to be an alternative dispute resolution mechanism in certain construction defect matters allowing an opportunity to resolve the claim without further legal process.
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Daniel Garcia, Gordon & Rees Scully MansukhaniMr. Garcia may be contacted at
daniel.garcia@grsm.com
California Supreme Court Hands Victory to Private Property Owners Over Public Use
June 21, 2017 —
Sean M. Sherlock - Snell & Wilmer Real Estate Litigation BlogIn 1970 the California Supreme Court held that, under certain circumstances, private property owners impliedly dedicate their property to the public if they permit the public to use it. Gion v. City of Santa Cruz (1970) 2 Cal.3d 29. This holding was controversial, and the next year the California Legislature enacted Civil Code section 1009 limiting the public’s ability to permanently use private property through an implied dedication.
In the 40-plus years since then, the lower courts have wrestled with the issue of whether the statute limiting implied dedication applies only to recreational uses by the public, or also to nonrecreational uses. On June 15, 2017, the California Supreme Court issued its unanimous opinion in Scher v. Burke (June 15, 2017, S230104) ___ Cal.4th ___, holding that the limitations on implied dedication apply to nonrecreational as well as recreational uses. The case is significant because it demonstrates that the Supreme Court will apply the plain language of the state’s statutes to uphold private property rights.
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Sean M. Sherlock, Snell & WilmerMr. Sherlock may be contacted at
ssherlock@swlaw.com
Professional Services Exclusion in CGL Policies
December 05, 2022 —
David Adelstein - Florida Construction Legal UpdatesA professional services exclusion in a commercial general liability policy means something. It’s an exclusion an insurer will rely on to avoid insurance coverage based on “professional services” performed or rendered by the insured. Don’t take it from me. Take it from the recent opinion in Colony Insurance Company v. Coastal Construction Management, LLC, 2022 WL 16636697 (M.D.Fla. 2022) where the trial court granted a commercial general liability insurer’s motion for judgment on the pleadings based on the professional services exclusion.
Here, an owner sued, among other parties, an entity performing only construction management services based on construction defects at its project. The construction manager did not perform any design or physical construction. It was hired to make site inspections of the construction, review construction quality and finish standards, ensure workmanship quality, coordinate the punchlist process, and supervise management and administration of the project.
The construction manager’s commercial general liability insurer sued for declaratory relief claiming it owed no duty to defend or indemnify based on the professional services exclusion.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Court of Appeals Affirms Dismissal of Owner’s Claims Based on Contractual One-Year Claims Limitations Period
October 04, 2021 —
Cassidy Ingram - Ahlers Cressman & SleightIn a recent unpublished decision – Tadych v. Noble Ridge Construction, Inc.– the Washington State Court of Appeals, Division One, held that a one-year contractual claim limitations clause was valid and enforceable. The Tadych decision is important because it reiterates the strict approach courts will take to a claim limitations clause less than the statutory six years for breach of contract claims prescribed by RCW 4.16.040(1). In other words, when the parties agree to shorten the limitations period, the agreement will be enforced barring any procedural or substantive unconscionability.
In Tadych, plaintiff owners (the Tadychs) contracted with defendant contractor (Noble Ridge Construction, Inc., or NRC) for the construction of a custom home in 2012. The contract provided a one-year claim limitations clause in which claims could be raised, and that all claims not raised in the one-year period would be waived. In December 2013, as the project neared completion, the Tadychs met with NRC to identify any outstanding project issues. The Tadychs noted several, including rainwater pools at the landing at the bottom of the stairs and several nicks and cracks on the stucco exterior walls.
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Cassidy Ingram, Ahlers Cressman & SleightMs. Ingram may be contacted at
cassidy.ingram@acslawyers.com
