Safe and Safer
May 01, 2023 —
Grace Austin - Construction ExecutiveThere’s always room for improvement” is a cliché that applies to nothing if not health and safety in the construction industry, where doing things differently—doing them better—means preventing injuries and saving lives. In that spirit, Construction Executive asked five industry safety advocates a simple question: What is one thing about construction safety you’d like to see change?
Ranging from sweeping to granular, their answers all focus on the people underneath the hard hats. As Miller & Long’s Frank Trujillo notes: “‘Safety first’ has been a mantra in the industry for decades, but I think companies have forgotten what that means. It’s about people—who they are, what they care about, who they love and their wellness.”
But each of our experts—all of them representing companies who participate in ABC’s STEP Safety Management System —has a different idea of how safety in the construction industry can and should evolve, and what needs to change. Their answers below have been condensed and edited for clarity.
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Grace Austin, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Construction Law Alert: A Specialty License May Not Be Required If Work Covered By Another License
March 07, 2011 —
Steven M. CvitanovicContractors should always be sure that they understand the licensing in any Subcontract or Prime Contract before entering into any agreement. However, on March 3, 2011, in the case of Pacific Casson & Shoring, Inc. v. Bernards Bros., Inc. 2011 Cal.App.Lexis 236, the Court of Appeal determined that if a specialty license is subsumed within another license, the specialty license may not be required.
Bernards entered into a subcontract with Pacific to excavate, backfill, grade and provide geotechnical design parameters for a hospital. The Prime Contract required the bidder to maintain a Class C-12 specialty earthwork license. However, Pacific only held a Class A general engineering license which it turns out was suspended during the performance of the work. Pacific sued Bernards for nonpayment of $544,567, but the lawsuit was dismissed because the trial court found that Pacific (1) lacked a C-12 license, and (2) Pacific’s Class A license was suspended for failure to pay an unrelated judgment. Pacific was also ordered to disgorge $206,437 in prior payments.
The Court of Appeal reversed and remanded. The Court of Appeal agreed with Pacific and held that a C-12 specialty license was not required despite the Prime Contract. The Court of Appeal found that the C-12 specialty license would have been “superfluous” since it was fully encompassed within the Class A requirements. However, the Court of Appeal also remanded the case for further
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Reprinted courtesy of Steve Cvitanovic of Haight Brown & Bonesteel, LLP.
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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
Construction Defect Journal Seeks Article Submissions Regarding SB800 and Other Builders Right to Repair Laws
October 28, 2011 —
CDJ STAFFAs we approach the tenth anniversary of the passage and signing of SB800, California’s right-to-repair law, we’d like to hear your reactions to the law, your experiences with it, and your thoughts on it and right-to-repair laws in other states.
We invite you to submit articles either reacting to SB800 or on other matters relevant to construction defect and claims issues. You can promote your firm’s capabilities and get valuable exposure through the publication of your articles. Construction Defect Journal is widely read by our highly targeted audience of decision makers, construction attorneys, builders, owners, and claims professionals.
Articles may contain relevant images, your firm’s name, and links to your corporate website or third parties and can be submitted through e-mail to submitstory@constructiondefectjournal.com. Please remember to include your contact information if you would like it to be published with your content. If you are submitting photos or PDF documents with your article, please send them as e-mail attachments. Items submitted are assumed to be cleared for publishing upon receipt by CDJ.
Normally articles are published in full, although we reserve the right to edit content for space purposes. All articles submitted are considered for publication. For additional questions please contact editor@constructiondefectjournal.com.
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Brown Paint Doesn’t Cover Up Construction Defects
April 25, 2012 —
CDJ STAFFIn a decision that describes the case as illustrating “the perils that real estate brokers and their agents assume when acting as a dual listing agent to both the buyers and sellers of the same house,” the California Court of Appeals has issued a decision in William L. Lyon & Associates v. The Superior Court of Placer County. Lyon & Associates sought summary judgment to dismiss the claims of the Henleys who bought a home in a transaction where a Lyon agent represented both sides.
The prior owners of the home, the Costas, had used a Lyon agent in purchasing their home. When they later sought to sell it, that agent “became aware of some of the house’s defects and problems.” In response, the Costas sought the help of another agent, Connie Gidal, also of Lyons & Associates. Photos taken in the presence of Ms. Gidal show defects of the paint and stucco. The Costas also took the step of painting the house dark brown. During the sale process, “rain caused many of the painted-over defects to reappear.” The Costas “purchased more dark brown paint and covered up the newly visible damage prior to inspection by the Henleys.”
With the damage concealed, the Henleys bought the home in May 2006. The agreement with Lyons & Associates noted that “a dual agent is obligated to disclose known facts materially affecting the value or desirability of the property to both parties.” Escrow closed on May 9, 2006. The contract with the broker included a two-year limit on the time to bring legal action.
The Henleys moved in during June 2006, and “began to discover construction defects that had been concealed by the Costas.” In addition to the painted-over stucco problems, the Henleys found that the Costas had “installed quartzite stone overlays on the backyard steps in a manner that caused water intrusion on the house’s stucco walls.”
In May 2009, the Henleys sued the Costas, Ron McKim Construction, Lyons & Associates, and Ms. Gidal. Their complaint alleged that Lyons & Associates had committed breach of contact, negligence, fraud, breach of fiduciary duty, and negligent nondisclosure in connection with the construction defects. The Costas named Lyons in a cross complaint. Lyons moved for summary judgments on the grounds that the two-year statute of limitations had expired before the complaint and cross-complaint were filed. Both the Henleys and the Costas opposed this claim. The court denied the motion and Lyons appealed.
The appeals court upheld the denial, noting that the both California Supreme Court decision and later action by the legislature compels real estate brokers and salespersons “to conduct a reasonably competent and diligent visual inspection of the property offered for sale.” The court noted that under California law, brokers have responsibilities to both sellers and buyers. The section of law cited by Lyons applies to seller’s agents. The court rejected the contention by Lyons that they were “cooperating brokers.” The Henleys were “not constrained by the two-year statute of limitations.”
Lyons contended that even if California’s statute did not apply, there was a contractual limit of two years. The court also rejected this, agreeing with the Henleys that “the two-year limitation period must be extended by the discovery rule.”
The court noted that “Lyon & Associates may not reap the benefit of a shortened contractual limitation period when its own alleged malfeasance contributed to the delay in the discovery of the buyer’s injury.” The court found that the Henleys could proceed with their breach of contract claim, because, “when a breach of contract is committed in secret, such as the intentional nondisclosure of a real estate broker regarding a previously visible construction defect, the contractual limitations period is properly held subject to the discovery rule.” The court felt that the interpretation favored by the California Association of Realtors would “halve the applicable statute of limitations period.”
In addition to rejecting Lyon request for summary judgment on the claims made by the Henleys, the court also rejected the request of summary judgment on the claims made by the Costas, concluding that neither claim is time-barred. Costs were awarded to both the Henleys and Costas.
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Judge Gives Cintra Bid Protest of $9B Md. P3 Project Award New Life
March 21, 2022 —
Jim Parsons - Engineering News-RecordThe Maryland Dept. of Transportation will have to reconsider a protest lodged by the losing bidder for the initial phase of its $9-billion Express Lanes project, according to a Feb. 17 state circuit court judge's ruing. The decision likely stalls the state's ambitious plan to add capacity along portions of the I-495/Beltway and I-270 west of Washington, DC, using a progressive public-partnership.
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Jim Parsons, Engineering News-Record
ENR may be contacted at enr@enr.com
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Third Circuit Affirms Use of Eminent Domain by Natural Gas Pipeline
November 28, 2018 —
Anthony B. Cavender - Gravel2GavelOn October 30, the U.S. Court of Appeals for the Third Circuit decided the case of Transcontinental Gas Pipe Line Co., LLC v. Permanent Easements for 2.14 Acres, et al. , affirming the District Court’s grant of a preliminary injunction to Transcontinental Gas Pipe Line Company, LLC (Transcontinental). This case involves the construction of the “Atlantic Sunrise Expansion Project,” a natural gas pipeline that runs through Pennsylvania, Maryland, Virginia, North Carolina and South Carolina.
Under the Natural Gas Act (NGA), pipeline companies can exercise powers of eminent domain when they are acting in the public interest. The Third Circuit cautions that this is a “standard” eminent domain power, and not a “quick take” that is permitted under another statute.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Federal Public Works Construction Collection Remedies: The Miller Act Payment Bond Claim
July 30, 2015 —
William L. Porter – The Porter Law Group BulletinFederal public work construction projects are unique in that there are no Stop Payment Notice or Mechanics Lien remedies available. Furthermore, although a remedy is available by proceeding against the original contractor’s payment bond under a federal law known as the “Miller Act” and its corresponding Federal Regulations (40 USCS 3131 et seq. and 48 CFR 28.101-1 et seq.), this remedy is not available to all subcontractors or suppliers. In addition, there are circumstances where a different form of security can be substituted for the payment bond (40 USCS 3131(b)(2)).
Among those who generally cannot sue on the Miller Act Payment Bond are third-tier subcontractors and suppliers to suppliers. (See J.W. Bateson Company v. Board of Trustees, 434 U.S. 586 (1978)). As a general rule, every subcontractor, laborer, or material supplier who deals directly with the prime contractor may bring a lawsuit against the bond company providing the Miller Act Payment Bond. Further, every subcontractor, laborer, or material supplier who has a direct contractual relationship with a first tier subcontractor may bring such an action.
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William L. Porter, The Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
