Virtual Mediation – How Do I Make It Work for Me?
December 21, 2020 —
Adrian L. Bastianelli, III & Jennifer Harris - Peckar & Abramson, P.C.Mediation took the construction industry by storm in the late 1980’s and has become a staple for resolving construction claims. Today, most construction contracts, including the ConsensusDocs, require mediation as a condition precedent to binding dispute resolution, whether it be arbitration or litigation. As a result, many construction executives have spent long hours sitting in conference rooms trying to reach resolution with their counterpart through mediation in order to avoid the alternative – costly arbitration or litigation that often produces an unsatisfactory result.
While many businesses have foreclosed the possibility of meeting in person due to the COVID-19 pandemic, the contractual requirements for mediation remain. Thus, in most cases, in-person or live mediation is no longer an option; however, attorneys and mediators have developed a virtual process to replace the live process. With a new process comes many questions: Does the virtual process work? What are the best practices and pitfalls for virtual mediation? Will virtual mediation continue when COVID-19 fades away? How do I make virtual mediation work for me? The answers to these questions and more are discussed below.
Reprinted courtesy of
Adrian L. Bastianelli, III, Peckar & Abramson, P.C. and
Jennifer Harris, Peckar & Abramson, P.C.
Mr. Bastianelli may be contacted at abastianelli@pecklaw.com
Ms. Harris may be contacted at jharris@pecklaw.com
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You Have Choices (Litigation Versus Mediation)
December 14, 2020 —
Christopher G. Hill - Construction Law MusingsAs I sit here thinking about an impending trial in the Goochland County General District Court, it hit me that I also serve as a mediator in that court from time to time. Coincidentally, I will be “wearing both hats” (litigator and mediator) this week on back to back days. It will be interesting to have to switch roles so quickly on back to back days.
While I don’t have the results of this thought experiment as I sit here typing this post, the timeline does bring into focus the two possible avenues to resolve a dispute. Neither is perfect and either works in the proper situation. Both lend a final “result” and closure to the dispute, they just each do so in a different manner and with a different role for me, the construction attorney/construction mediator.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Wichita Condo Association Files Construction Defect Lawsuit
November 20, 2013 —
CDJ STAFFKey Construction, the contractor of a downtown Wichita, Kansas mixed-use development has been sued by the condominium association of the development’s condo building. The WaterWalk Place Owners Association claims that the balconies on the building do not drain properly. Additionally, the suit claims that the building has water intrusion problems due to inappropriate or missing sealant at windows, doors, and expansion joints.
Key Construction says that they are dealing with the problems and describe the suit as due to “a deadline pushing on” the residents. Wyatt Hock, the attorney for the residents, says that he hopes for a settlement.
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The California Legislature Return the Power Back to the People by Passing the California Consumer Privacy Act of 2018
January 02, 2019 —
Richard H. Glucksman, Esq., David A. Napper, Esq., & Lana Halavi – Chapman Glucksman Dean Roeb & BargerIntroduction
Data breaches and social media hacks are becoming increasingly common stories on the news cycle. Meanwhile, companies have made fortunes on unsuspecting individuals by selling information gathered on the user. Every internet user has wondered why a pop-up ad or banner on an unrelated website relates to something you purchased or searched for "that one time. The California legislature has decided to return some power back to the people with the California Consumer Privacy Act of 2018. California is the first state to introduce privacy protection for individuals personal data and could pave the way for other states to follow suit in the near future.
The California Consumer Privacy Act of 2018
On June 28, 2018, California Governor Jerry Brown signed into law the California Consumer Privacy Act of 2018 ("the Act"). The California Legislature eagerly passed the Act, which comes into effect on January 1, 2020, granting broad new privacy rights to "consumers" and enforcing requirements on the protection of their personal data allowing consumers the right to take back control of their personal information.
A "consumer" is defined as a "resident of California as defined by California's personal income tax regulations. "Personal information" pursuant to the Act is defined as "information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household." Personal information is generally recognized in California as information that can identify a specific individual. The Act also includes information that can be used to identify a household.
Provisions of the Act
Pursuant to the Act, consumers are given the right to know upon request if their personal information is disclosed, and to whom it is disclosed, the right to know what personal information has been collected about them by a business, the right to object to the sale of their personal information, the right to obtain data collected about them, the right to require businesses to obliterate their personal information, and the right to be given equal service and pricing from businesses, including equal prices and quality of goods or services. The Act forbids discrimination by businesses against consumers for exercising their privacy rights pursuant to the Act.
Businesses are, however, permitted to charge different prices or provide different quality of service to consumers if the difference is "reasonably related to the value provided to the consumer by the consumer’s data." Additionally, businesses must allow consumers to exercise their rights by providing to consumers toll-free telephone numbers and/or websites to request such information or privacy. If a consumer sends a verified request for information to a business, the business subsequently has 45 days to give the consumer the requested information from the preceding 12 months with no charge to the consumer.
Who Must Comply with the Act
The Act will apply to for-profit businesses that do business in the State of California, deal with personal information of California residents, and either·(1) have more than $25 million in annual gross revenues, or (2) receive or disclose more than 50,000 California residents' personal information, or(3) derive 50% or greater of California residents' annual revenues from selling their personal information.
Who is Exempted from Compliance with the Act
A for-profit company, a small company, and/or a company that does not derive large amounts of personal information and does not share a brand with an affiliate covered by the Act is exempted from complying with the Act. Additionally, a company is exempted from compliance with the Act "if every aspect of . . . commercial conduct takes place wholly outside of California," meaning: (1) the personal information was collected from the consumer while they were outside California, (2) no sale of their personal information took place in California, and (3) there was no sale of personal information that was collected while the consumer was in California.
Impact
According to 2017 estimates, California's population totaled approximately 39 million people. Clearly the Act will affect an incredibly large amount of people considering it concerns the most populous state in America. The California Consumer Privacy Act of 2018, which is being compared to the EU General Data Protection Regulation for its all-encompassing method and resilient privacy protections is also speculated to have an impact on businesses throughout the nation and around the world. While the costs will likely go up for companies to do business in California, the transparency and trust earned by business and gained by consumers in this new landscape could potential overcome the initial costs to provide these required services. Perhaps most importantly however, is if California consumers decide to take advantage of the new protections, they will no longer have to wonder what for-profit businesses are doing with their data.
Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys
Richard H. Glucksman,
David A. Napper and
Lana Halavi
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com
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Finding of No Coverage Overturned Due to Lack of Actual Policy
March 18, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe Appellate Division overturned a verdict for the insurer when the actual policy was never introduced at trial. Pennsylvania Lumbermens Mut. Ins. Co. v. B&F Land Dev. Corp., 2019 N.Y. App. Div. LEXIS 264 (N.Y. App. Div. Jan 16, 2018).
The decedent was killed when he fell through a skylight while working on a premises owned by B&F Land Development Corporation. The estate sued B&F for wrongful death.
B&F tendered to its carrier, Pennsylvania Lumbermens Mutual (PLM). PLM issued a reservations of rights. It later denied coverage because the location of the loss was not a location listed on the policy, an exclusion barred coverage for bodily injury arising out of B&F's ongoing operations conducted by it or on its behalf, and the loss was not reported to PLM as soon as practicable.
PLM sued B&F and the estate for a declaratory judgment that it had no duty to defend or indemnify. A default judgment was entered against B&F after it failed to answer. Trial proceeded against the estate
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Insurer Must Pay Portions of Arbitration Award Related to Faulty Workmanship
October 21, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe court determined that portions of an arbitration award against the insured contractor based upon faulty workmanship were covered by the policy. Wallace v. Nautilus Ins. Co., 2019 U.S. Dist. LEXIS 122219 (D. N. H. July 23, 2010).
Plaintiffs, owners of adjoining homes, hired McPhail Roofing, LLC to replace the roofs of their houses. After installation, the plaintiffs found several problems with their roofs and withheld roughly a third of the agreed-upon contract price from final payments due to McPhail. A roofing consultant found evidence of water leaking through both roofs during rainstorms. Improper installation of the shakes on the roofs allowed rain to seep through to the roof decks (the plywood underneath the roofs) and eventually into the houses. The only way to cure the installation defects was to remove and replace the roofs entirely.
Plaintiffs and McPhail went to arbitration. Plaintiffs sought compensation for the damage caused by the leaking and for the replacement costs of the roofs. McPhail sought the remaining payment under the contracts. Nautilus defended McPhail under this CGL policy.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
N.J. Appellate Court Applies Continuous Trigger Theory in Property Damage Case and Determines “Last Pull” for Coverage
November 15, 2017 —
K. Alexandra Byrd – Saxe Doernberger & Vita, P.C.The New Jersey Superior Court, Appellate Division, published an important decision addressing several fundamental issues regarding how a commercial general liability (CGL) policy applies to long-term property damage. The court held that: (1) a continuous trigger theory of coverage may be applied to third-party liability claims involving progressive property damage caused by an insured’s allegedly defective work; (2) the “last pull” (i.e., the cutoff point) of the continuous trigger is when the “essential nature and scope” of the property damage first becomes known or could reasonably be known; and (3) the “last pull” is not when the property damage is “attributed” to the insured’s faulty work.
The underlying action in Air Master & Cooling Inc. v. Selective Ins. Co., et al. 1 concerned property damage arising out of the construction of a seven-story, 101-unit condominium building in Montclair, New Jersey. The project’s construction manager hired Air Master & Cooling, Inc. (Air Master) to perform HVAC work on the project, including installing individual HVAC equipment in each resident’s unit from 2005 to 2008. In early 2008, unit owners began complaining about water infiltration and damage to their windows, ceilings, and other portions of their units. The general contractor and developer began assessing the damage and making repairs. Eventually, in April 2010, an expert consultant performed a moisture survey of the roof and discovered 111 areas that were damaged by water infiltration. The expert report indicated that “it [was] impossible to determine when [the] moisture infiltration occurred.”
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K. Alexandra Byrd, Saxe Doernberger & Vita, P.C.Ms. Byrd may be contacted at
kab@sdvlaw.com
After the Fire, Should Some Parts of Los Angeles Never Rebuild?
January 28, 2025 —
Akshat Rathi - BloombergThe fires in and around Los Angeles are coming under control. The city’s mayor has already issued an executive order to speed up rebuilding. But equally catastrophic blazes are likely to strike again on a hotter planet, raising the question of whether some parts of the region should still be considered livable.
It’s not an unthinkable notion. There have been a handful of attempts at systematically moving populations away from regions severely affected by climate change. This kind of “managed retreat” has typically been applied to risks from rising sea levels, with recent programs in the US involving relocating tribal populations in Alaska and Washington.
But people affected by wildfires are only just starting to see efforts from governments to help them to move away from high-risk areas, including in LA county. A California program launched last year that offered up to $350,000 in loans to those affected by fires in 2018 and 2020 to shift to safer places fully allocated its funds within weeks.
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Akshat Rathi, Bloomberg
