A Changing Climate for State Policy-Making Regarding Climate Change
February 18, 2020 —
Sheila McCafferty Harvey - Gravel2Gavel Construction & Real Estate Law BlogIssued by 13 federal agencies, the 2018 Fourth National Climate Assessment presented a stark warning on the consequences of climate change for the United States. The report predicts that if significant steps are not taken to rein in global warming, the damage will reduce the U.S. economy by as much as 10 percent by the end of the century. The report, which was mandated by Congress and made public by the White House, is notable not only for the precision of its calculations and bluntness of its conclusions—the 1,656-page assessment lays out the devastating effects of a changing climate on the economy—but also in how it conflicts with President Donald Trump’s environmental deregulation plan. U.S. policy efforts at the state and local levels are ramping up to address this complex topic. These include:
Targeting Net-Zero Emissions. Hailed as the most aggressive climate law in the nation, New York State’s Climate Leadership and Community Protection Act are targeting 100 percent carbon-free electricity by 2040 and economy-wide, net-zero carbon emissions by 2050. California set a statewide target to reach carbon neutrality by 2045.
Reducing and Renewing. New Mexico established a statewide goal of reducing greenhouse gas emissions by 45 percent below 2005 levels by 2030. Nevada passed a bill to increase the amount of electricity it gets from renewable resources to 50 percent by 2030.
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Sheila McCafferty Harvey, PillsburyMs. Harvey may be contacted at
sheila.harvey@pillsburylaw.com
Landmark Montana Supreme Court Decision Series: The Duty to Defend
February 28, 2022 —
Lorelie S. Masters, Patrick M. McDermott & Rachel E. Hudgins - Hunton Insurance Recovery BlogThis post in our
Landmark Montana Supreme Court Decision Series discusses the Montana Supreme Court’s consideration of an insurer’s duty to defend in
National Indemnity Co. v. State, 499 P.3d 516 (Mont. 2021).
For 67 years, W.R. Grace & Company’s mining operations spread asbestos through the town of Libby, Montana,
causing elevated rates of asbestosis and asbestos-related cancer in Libby residents – even among those who never worked in the mine. The Environmental Protection Agency deemed the Libby Mine the
“most significant single source of asbestos exposure” in US history.
In 2000, Libby residents began filing lawsuits against the State of Montana, alleging that the State had failed to warn them about the mine’s danger, and this failure contributed to their bodily injuries. Id. at 521-22. The Libby plaintiffs’ asbestos exposures and related injuries had occurred decades earlier, and so the State searched its storage units for records of any potentially applicable insurance policies.
Reprinted courtesy of
Lorelie S. Masters, Hunton Andrews Kurth,
Patrick M. McDermott, Hunton Andrews Kurth and
Rachel E. Hudgins, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. McDermott may be contacted at pmcdermott@HuntonAK.com
Ms. Hudgins may be contacted at rhudgins@HuntonAK.com
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The Enforceability of “Pay-If-Paid” Provisions Affirmed in New Jersey
January 04, 2023 —
Levi W. Barrett, Michael S. Zicherman & Brian Glicos - Peckar & Abramson, P.C.On December 7, 2022, the Appellate Division affirmed the New Jersey Superior Court decision in Jersey Precast v. Tricon Enterprises, Inc. et al., finding that the “pay-if-paid” clause in a material supplier’s purchase order with a general contractor was binding and enforceable. While clauses conditioning a general contractor’s obligation to pay its subcontractors on the general contractor’s receipt of payment from the project owner are not unique – this is the first time that a court in New Jersey has affirmed this practice in a published opinion. [1]
Background
The general contractor, Tricon, sent Jersey Precast its standard form purchase order for the supply of prestressed box beams to fulfill a public improvement contract with Union County. The reverse side of the form purchase order contained standard terms and conditions, and included a pay-if-paid clause drafted by Michael Zicherman, a partner of Peckar & Abramson, P.C. While Jersey Precast provided some draft revisions to the terms and conditions, Tricon never signed the purchase order and the proposed revisions were never accepted. Significantly, Jersey Precast did not attempt to modify the pay-if-paid provision. It later developed that the construction of the project became impossible, and the beams fabricated by Jersey Precast were not used. Tricon invoiced Union County for the cost of the beams, but the County failed to make payment and refused to accept delivery of the beams.
Reprinted courtesy of
Levi W. Barrett, Peckar & Abramson, P.C.,
Michael S. Zicherman, Peckar & Abramson, P.C. and
Brian Glicos, Peckar & Abramson, P.C.
Mr. Barrett may be contacted at lbarrett@pecklaw.com
Mr. Zicherman may be contacted at mzicherman@pecklaw.com
Mr. Glicos may be contacted at bglicos@pecklaw.com
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Fact of Settlement Communications in Underlying Lawsuits is Not Ground for Anti-SLAPP Motion in Subsequent Bad Faith Lawsuit
August 24, 2020 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Trilogy Plumbing, Inc. v. Navigators Specialty Ins. Co. (No. G057796, filed 5/27/20, ord. pub. 6/18/20), a California appeals court ruled that an insurance bad faith lawsuit alleging a variety of claim handling misconduct in defending the insured was not subject to an insurer’s special Strategic Lawsuit Against Public Participation (SLAPP) motion to strike because, while the alleged acts were generally connected to litigation, they did not include any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body and, therefore, did not constitute protected activity under California’s anti-SLAPP statute.
In Trilogy Plumbing, the policyholder was sued in 33 different construction defect lawsuits, some of which Navigators defended, and others which were denied or had the defense withdrawn. The Navigators’ policies were subject to a $5,000 deductible, and Trilogy alleged that Navigators breached the contracts by “demanding deductible reimbursement amounts greater than the policies’ $5,000 stated deductible, and by seeking reimbursement of ordinary defense fees and expenses as if they were subject to deductible reimbursement,” “claiming a right to seek reimbursement from Trilogy for defense fees and expenses Navigators paid for the benefit of third-party additional insureds,” “providing conflicted defense counsel who took instructions only from Navigators without disclosing conflicts of interest,” “failing to reasonably settle cases and by withdrawing [the] defense as a strategic means of trying to force Trilogy to fund its own settlements,” “misrepresenting its deductible provisions,” “refusing to account for deductible amounts it charges and collects,” and others.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
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BKV Barnett, LLC v. Electric Drilling Technologies, LLC: Analyzing the Impact of Colorado’s Anti-Indemnification Statute
December 23, 2024 —
David M. McLain – Colorado Construction Litigation BlogIn the recent case of BKV Barnett, LLC v. Electric Drilling Technologies, LLC, the United States District Court for the District of Colorado dealt with significant legal issues concerning indemnification and insurance obligations in construction agreements. The ruling, handed down on September 26, 2024, serves as a crucial reminder of the limitations imposed by Colorado’s Anti-Indemnification Statute, C.R.S. § 13-21-111.5, and its implications for contracts in the construction industry.
This case arose from a Master Service Contract (“MSC”) between BKV Barnett, LLC (“BKV”) and Electric Drilling Technologies, LLC (“EDT”), in which EDT provided electrical services and equipment to an oil and gas lease wellsite in Texas. Following a lightning strike in early 2022 that damaged electrical infrastructure at the site, EDT dispatched Turn Key Utility Construction to repair the damage. During the repair work, an arc flash occurred, causing significant injuries to one of Turn Key’s employees, Matthew Lara, leading to a personal injury lawsuit filed by Lara in Dallas County, Texas. BKV sought indemnification, defense, and additional insured status from EDT under the terms of their MSC, which EDT contested.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Another Municipality Takes Action to Address the Lack of Condominiums Being Built in its Jurisdiction
March 12, 2015 —
Heather M. Anderson – Higgins, Hopkins, McLain & Roswell, LLCWhether you are in the market to downsize or are looking to be a first time home buyer, you have likely noticed that your housing options in Colorado have become extremely limited over the course of the last several years. If you are a contractor and have worked on multi-family projects in the recent past, you know why the housing options are limited in the State of Colorado. In the past two years, there have been studies commissioned and articles published in local periodicals investigating the extreme slowdown seen in the construction of owner-occupied multi-family housing, namely condominiums and townhomes. Those of us involved in and with the construction industry are intimately familiar with the lengthy, complicated, and incredibly expensive construction defect litigation that has plagued multi-family construction in the State of Colorado and brought it to a virtual halt.
And now, local municipalities and elected officials are starting to take notice. Most recently, the City of Lone Tree passed Ordinance No. 15-01, to become effective on April 1, 2015. According to the City of Lone Tree, Ordinance No. 15-01 is “aimed at encouraging the development of owner-occupied, multi-family residential projects through the adoption of regulations designed to balance the risk and exposure to builders and developers of such projects, while still protecting homeowners from legitimate construction defect claims.”
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Heather M. Anderson, Higgins, Hopkins, McLain & Roswell, LLCMs. Anderson may be contacted at
Anderson@hhmrlaw.com
10 Safety Tips for General Contractors
October 09, 2018 —
Eric Weisbrot – JW Surety BondsThe construction industry continues to grow each year, paving the way for general contractors to make a profitable, sustainable living when the job is done right. However, to do so effectively, safety standards need to be met with consistency and focus on each worksite. General
contractors who are licensed and bonded must take proactive steps to avoid potentially fatal injuries among their subcontractors and employees, even though this may be easier said than done. To create and maintain a safe worksite each and every time, general contractors should consider how to implement the following best practices and safety tips on the job.
1 – Know the Risks
The most crucial step toward maintaining a safe construction site is to first be aware of the risks involved. Each year, thousands of
construction workers experience injuries on the job, and some ultimately lose their life because of safety missteps at work. As a general contractor, it is your responsibility to know that construction risks run rampant given the nature of the work. Being tuned into the potential for falls, slips, and other common safety-related incidents is a necessary part of operating a safe worksite for you and your employees.
2 – Require Protective Gear
An often overlooked safety precaution on construction sites is the use of up-to-date and well-maintained protective gear. For many subcontractors and employees, it is easy to skip this necessary step in safeguarding themselves from potential safety issues. However, general contractors can take steps to make protective gear a requirement on the job. This may include mandating hardhats and steel-toed shoes, gloves, and eyewear when appropriate. All visitors and workers on a construction site should follow protective gear instructions to avoid unnecessary safety risks.
3 – Educate on Ladder Safety
According to the Bureau of Labor Statistics, ladder injuries account for a significant number of construction worker incidents each year, making up more than 200,000 accidents on average. Ladders have continuously ranked high on OSHA’s list of violations at construction sites because the prevalence of injuries is so high. General contractors can help thwart ladder-related injuries among workers by promoting ladder safety training, including reminders about the right ladder to use for each task. Workers should also be well aware of the importance of inspection before use, and they should always follow the three points of contact rule when going up or down a ladder.
4 – Recognize Equipment Pitfalls
Many construction workers experience injuries relating to equipment used on the job. This could be tied to getting on or off equipment, or loading and unloading materials from machinery. In any case, general contractors can encourage simple tactics to improve equipment safety measures. Paying close attention to secure footing while getting on or off a machine, having more than one person assist with loading and unloading, and ensuring everyone feels comfortable asking for help with these tasks reduces safety risks.
5 – Document Potential Hazards
A general contractor’s main responsibility is to manage the construction site efficiently from start to finish. Part of this duty is recognizing the possible issues on a worksite that may lead to accidents or injuries if not addressed at the beginning of a project. It is necessary to take the time to identify safety risks such as unstable working surfaces, dangerous trenches, or weather-related concerns that may impact the safety of subcontractors, suppliers, or other site visitors. Potential hazards should be documented and shared with site workers, and they should be updated as the project progresses.
6 – Maintain Equipment and Tools
Poorly maintained equipment and tools also cause issues on construction sites. The Infrastructure Health and Safety Association suggests that general contractors
remind workers to inspect tools, machines, handheld equipment, and vehicles before each use to ensure they are properly maintained. Additionally, understanding the maintenance standards for certain tools or equipment and following those guidelines is crucial to reducing injury on the job.
7 – Minimize Crowds
Crowded work areas can be a serious safety issue for general contractors, subcontractors, and vendors and suppliers on site. It is common for crowds to gather during the use of heavy equipment or when a significant task is being completed. However, general contractors should discourage crowd-forming for spectating purposes. This can be done by limiting the number of people allowed to be in an area when certain activities are taking place, and enforcing these rules at every possible opportunity.
8 – Hire Licensed Subcontractors
General contractors may have full- or part-time employees as part of their business model, or there may be a heavy presence of subcontractors not directly tied to the main business. In either case, it is essential to have faith in the capabilities of workers, including their willingness and commitment to follow safety standards. General contractors can help ensure each worker is more likely to take safety seriously when they hire licensed contractors who follow through with
licensing requirements as mandated by the state or city.
9 – Focus on Training
Even after vetting subcontractors and employees based on their licensing status, general contractors also need to ensure training and education are a priority. Several online and in-person courses focus on construction safety training which workers should be encouraged to attend. Safety
education programs from OSHA and other reputable sources are crucial to decreasing accidents on the job.
10 – Be Present
Finally, general contractors can only have an impact on the safety of the job site when they are purposefully present. It is common for some GCs to stop by a project when they are needed or to check on progress periodically. However, new safety hazards, lacking worker training, and other risks are not easily fixed when the general contractor is not consistently on site. Reducing the potential for falls, slips, trips, and fatalities on the job requires communication with workers, and that takes place most effectively when general contractors are in person.
Eric Weisbrot is the Chief Marketing Officer of JW Surety Bonds. With years of experience in the surety industry under several different roles within the company, he is also a contributing author to the surety bond blog.
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9th Circuit Closes the Door on “Open Shop” Contractor
September 04, 2018 —
Garret Murai - California Construction Law BlogAt the height of the Great Depression nearly one-quarter of Americans were unemployed. In response, Congress enacted a series of laws including the Smoot-Hawley Tariffs Act, which raised tariffs on foreign goods in an effort to spur domestic investment and to increase the number of jobs. Sound familiar?
Background
The Davis-Bacon Act
Among the new laws enacted by Congress was the Davis-Bacon Act which required contractors on federal works projects to pay their workers the wages prevailing in the area where a project was located, also known as “prevailing wages,” in an effort to stem the practice of employers bringing in lower-wage workers from outside the area. The same year that the Davis-Bacon Act was enacted, California enacted its own prevailing wage law modeled after the Davis-Bacon Act and applicable to state and local public works projects.
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
