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DIRECTORY AND CAPABILITIES

EEOC Chair Issues New Report “Building for the Future: Advancing Equal Employment Opportunity in the Construction Industry”

June 05, 2023 — The U.S. Equal Employment Opportunity Commission
WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) Chair Charlotte A. Burrows issued a report today titled, “Building For The Future: Advancing Equal Employment Opportunity in the Construction Industry.” The report provides findings and next steps based on the agency’s enforcement experience, witness testimony presented at the EEOC’s May 2022 hearing on discrimination and harassment in construction and other Commission hearings, and academic research. “The recent historic federal infrastructure investments provide a once-in-a-generation opportunity to break down barriers and expand opportunity in the construction industry,” said EEOC Chair Charlotte A. Burrows. “While discrimination has long been an issue in the industry, we can decide the future. I look forward to working with industry leaders, employers, and unions to help ensure safe and inclusive workplaces for all workers.” Read the court decision
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In Midst of Construction Defect Lawsuit, City Center Seeks Refinancing

October 02, 2013 — CDJ STAFF
The owners of the City Center complex in Las Vegas are going through with a refinancing of their $1.8 of debt while they still seek to demolish the Harmon Tower. The cost of building City Center was $8.5 billion, making it the most expensive development on the Las Vegas strip. Unfortunately for the owners, the Harmon Tower isn’t the only empty space in the complex. MGM Resorts is currently in the midst of a construction defect lawsuit against the builder of the Harmon Tower. The judge in the case has given a go-ahead to tear down the building. Read the court decision
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Insurance Law Client Alert: California Appeals Court Refuses to Apply Professional Services Exclusion to Products-Completed Operations Loss

March 19, 2014 — Valerie A. Moore and Chris Kendrick - Haight Brown & Bonesteel LLP
In North Counties Engineering v. State Farm (No. A133713, filed 3/13/14), State Farm insured an engineering company under CGL insurance that had a professional services exclusion and included products-completed operations (PCO) coverage. The owner of the engineering company, NCE, contracted with a winery to construct a dam and associated works. Also on the project was the owner's son, who had his own construction company, NCD. There were multiple contracts, both oral and written, variously naming one company or the other. The evidence later showed that the father performed hands-on work for the project. After completion, the winery was sued over sediment and erosion caused by the dam. State Farm denied coverage on the ground that the professional services exclusion applied, as well as a mistaken belief that the policy had no PCO coverage. State Farm then changed its position and agreed to defend, but only going forward. The insured sued State Farm over past defense fees, alleging breach of contract and bad faith. The case went to trial and after testimony detailing State Farm's claim handling, the trial judge granted a nonsuit, finding that the professional services exclusion barred all coverage: "[I]f you look at the pleadings, the legal pleadings and the contracts, the NCE role is, as the engineering company, the support company, and that company was overseeing the [sic] NCD to make sure that whatever they did was done right.... NCE is the expert on the job, the professional providing professional services, design and construction, and also overseeing the work of NCD, the son’s business, which is doing more of the physical activity.... That takes professional expertise and I think all of what Mr. Akerstrom did was professional.... It was this professional work, and not 'something incidental to their professional involvement' that gave rise to the underlying actions. In this situation, it’s not a malpractice or E and O policy. It’s a business policy, which has good benefits, but is subject to the professional services exclusion." Reprinted courtesy of Valerie A. Moore and Chris Kendrick of Haight Brown & Bonesteel LLP Ms. Moore may be contacted at vmoore@hbblaw.com; Mr. Kendrick may be contacted at ckendrick@hbblaw.com Read the court decision
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Illinois Court Addresses Coverage Owed For Subcontractor’s Defective Work

May 06, 2019 — Brian Bassett - TLSS Insurance Law Blog
In Acuity Ins. Co. v. 950 W. Huron Condo. Assoc’n, 2019 IL App (1st) 180743, the Illinois Court of Appeals held that a claim against a subcontractor for damage caused to property outside the scope of its work satisfied the insuring agreement of a CGL policy. The condominium association for the building located at 950 West Huron Street in Chicago, Illinois (“the Association”), sued its general contractor and construction manager Belgravia Group, Ltd., and Belgravia Construction Corporation (collectively “Belgravia”). The Association sought to recover for alleged defects from Belgravia’s unworkmanlike construction of the building that permitted water to permeate and cause damage. In the Association’s complaint, it alleged that in June 2002, after the Association took possession of the building but prior to the completion of construction, Belgravia became aware of numerous conditions and defects, including extensive water infiltration of the building. After discussing the issues with Belgravia, the Association claimed that Belgravia retained contractors to provide cosmetic fixes. However, this did not address the problems and defects. The Association alleged that it spent a substantial amount of money to identify and correct the damage and that it would incur additional costs for future repairs. Read the court decision
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Reprinted courtesy of Brian Bassett, Traub Lieberman
Mr. Bassett may be contacted at bbassett@tlsslaw.com

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Understanding the California Consumer Privacy Act

March 02, 2020 — Kevin Bonsignore - Wilke Fleury
The recently enacted California Consumer Privacy Act (“CCPA” or the “Act”) goes into effect on January 1, 2020 and with it comes enhanced consumer protections for California residents against businesses that collect their personal information. Generally speaking, the CCPA requires that businesses provide consumers with information relating to the business’ access to and sharing of personal information. Accordingly, businesses should determine whether the CCPA will apply to them and, if so, what policies and procedures they should implement to comply with this new law. Application of the CCPA Importantly, the CCPA does not apply to all California business. The requirements of the CCPA only apply where a for-profit entity collects Consumers’ Personal Information, does business in the State of California, and satisfies one or more of the following: (1) has annual gross revenues in excess of twenty-five million dollars ($25,000,000); (2) receives for the business’s commercial purposes, sells, or shares for commercial purposes the personal information of 50,000 or more consumers, households, or devices; or (3) derives 50 percent or more of its annual revenues from selling consumers’ personal information. (California Code of Civil Procedure § 1798.140(c)(1)(A)-(C).) Thus, as a practical matter, small “mom and pop” operations will likely not be subject to the CCPA, but most mid-size and large companies should review their own books or consult with an accountant to determine whether the CCPA applies to their business. Rights Granted to Consumers “Consumers,” as the term is used in the CCPA, means “any natural person who is a California resident…” (California Code of Civil Procedure § 1798.140(g).) This broad definition makes no carve-outs or exclusions for a business’s employees and, despite the traditional definition of the term “consumer,” does not seem to require that the resident purchase any goods or services. This definition seems intentional and was likely designed to prevent businesses from attempting to circumvent the requirements of the CCPA by arguing that the personal information they collect does not belong to “consumers” under the traditional meaning of the word. Read the court decision
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Reprinted courtesy of Kevin Bonsignore, Wilke Fleury
Mr. Bonsignore may be contacted at kbonsignore@wilkefleury.com

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Broker Not Liable for Failure to Reveal Insurer's Insolvency After Policy Issued

March 28, 2012 — Tred R. Eyerly - Insurance Law Hawaii

Faced with an issue of first impression in California, the Court of Appeals held that a broker was not liable for failing to reveal the insurer's insolvency occurring after issuance of the policy. Pacific Rim Mechanical Contractors, Inc. v. Aon Risk Ins. Serv. West, Inc., 2012 Cal. App. LEXIS 232 (Cal. Ct. App. Feb. 28, 2012).



The developer for a construction project in downtown San Diego retained Aon as its broker to secure coverage. Aon procured a general liability policy for the project with Legion Indemnity Company. Legion was solvent when it issued the policy.



The developer hired Pacific Rim (“PacRim”) as one of several subcontractors on the project. The parties entered into a contract in which the developer agreed to provide PacRim with liability insurance through an Owner Controlled Insurance Program (“OCIP”). Aon was not a party to the contract and PacRim was never its client. PacRim, however, enrolled in the OCIP by contacting Aon and providing all necessary paperwork.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Fourth Circuit Rejects Application of Wrap-Up Exclusion to Additional Insured

December 11, 2018 — K. Alexandra Byrd & Samantha M. Oliveira - Saxe Doernberger & Vita, P.C.
Utilizing an owner-controlled or contractor-controlled insurance program (collectively known as “wrap-ups”) can reduce claims, save costs, and give owners and general contractors comfort in knowing their project is adequately insured. However, problems often arise when a subcontractor doesn’t enroll in the wrap-up and, instead, agrees to provide additional insured coverage to the owner and general contractor on the subcontractor’s own general liability policy. One of those problems is the prevalence of wrap-up exclusions on subcontractors’ general liability policies. If the wrap-up exclusion is too broadly drafted, the exclusion can eliminate coverage for the general contractor and owner even when the subcontractor is not enrolled in the wrap-up. Reprinted courtesy of K. Alexandra Byrd, Saxe Doernberger & Vita, P.C. and Samantha M. Oliveira, Saxe Doernberger & Vita, P.C. Ms. Byrd may be contacted at kab@sdvlaw.com Mr. Oliveira may be contacted at smm@sdvlaw.com Read the court decision
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The Anatomy of a Construction Dispute- The Claim

January 12, 2015 — Christopher G. Hill – Construction Law Musings
A new year brings with it promise and challenges. The promise is a relatively clean slate and the thought that 2015 will be a great year for construction professionals and those that assist them. The challenges come from the almost inevitable issues that can arise on a construction site with its many moving parts and enough potential pitfalls to make even the most optimistic construction attorney, contractor, subcontractor or supplier think that Murphy was an optimist. In order to assist with the potential challenges, this post will be the first in a series of “musings” on the best way to handle a payment dispute arising from a construction contract. This week’s post will discuss what the first steps should be once a payment dispute or claim arises. We’ll assume that you, as a construction contractor, have taken early advantage of the services of a construction lawyer and have carefully reviewed your contract for issues before signing that contract. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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