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Georgia Super Lawyers Recognized Two Lawyers from Hunton’s Insurance Recovery Group

March 06, 2023 — Hunton Insurance Recovery Blog
Hunton insurance recovery group partner Larry Bracken and associate Rachel Hudgins were each recognized in Georgia Super Lawyers 2023’s most recent publication. Larry Bracken was recognized as a Super Lawyer, and Rachel Hudgins was selected as a Rising Star for Insurance Coverage. Super Lawyers, a subsidiary of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. Ultimately, no more than 5% of lawyers in a state are selected as Super Lawyers, and less than 2.5% are recognized as Rising Stars. Congratulations to Larry and Rachel on this achievement! Read the court decision
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Reprinted courtesy of Hunton Andrews Kurth LLP

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Alleging and Proving a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) Claim

December 13, 2021 — David Adelstein - Florida Construction Legal Updates
When it comes to construction disputes, a Florida Deceptive and Unfair Trade Practices Act (known by its acronym “FDUTPA”) claim is not commonly asserted. A FDUTPA claim is a statutory claim under Florida Statute s. 501.201 en seq. This claim is NOT easy to prove, particularly in the construction context. Sometimes, a party will assert a FDUTPA claim to create a basis for attorney’s fees; however, that basis cuts BOTH ways, i.e., you can be liable for fees if you fail to prove the FDUTPA claim. In a construction dispute, a FDUTPA claim is one that really should be pled with caution after a party understands and fully considers what it MUST prove including the all-important consideration of how actual damages are determined under FDUTPA, which requires an actual loss. Nevertheless, it is good to know what you need to prove to support a FDUTPA claim in case you believe you have facts that can support a FDUTPA claim and actual damages under FDUTPA (known as benefit-of-the-bargain damages). Reprinted courtesy of David Adelstein, Kirwin Norris, P.A. Mr. Adelstein may be contacted at dma@kirwinnorris.com Read the full story... Read the court decision
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The Utility of Arbitration Agreements in the Construction Industry

December 30, 2019 — Brian L. Gardner & Jason R. Finkelstein - Construction Executive
In today’s ever-evolving world of employment law, it is far from an easy task for construction industry employers to operate their business while successfully navigating all of the potential legal potholes that continue to abound and multiply seemingly with every passing day. This is particularly true in the face of the onslaught of claims lodged by current and former employees in recent years for alleged unpaid wages. While there may not be a “sure bet” way of avoiding such claims, one tool that employers should strongly consider in their arsenal are arbitration and class action waiver agreements. To that end, last year, the United States Supreme Court rendered its ground-breaking decision in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018). In Epic Systems, the Supreme Court held that arbitration agreements containing class and collective action waivers of wage and hour disputes are enforceable. At the time of the decision, a split of authority existed among courts across the country as to whether such agreements were viable. On the one hand, several courts contended that class waivers unfairly violated employees’ rights to collectively bargain under the National Labor Relations Act. On the other hand, many other courts were finding that such agreements were fully enforceable and supported by the policies promoted under the Federal Arbitration Act. The Epic Systems Court sided with this latter viewpoint, concluding that the FAA’s clear policy promoting arbitration as a dispute resolution mechanism and private parties’ rights to freely negotiate contracts outweighed any potential arguments against such agreements under the NLRA. With wage and hour lawsuits being filed against construction industry employers practically daily, the Epic Systems decision is critically important. Construction employers can now freely enter into arbitration and class waiver agreements with their laborers and thereby potentially limit the cost, expense and exposure of fighting such actions in a public forum on a collective or class-wide basis. To be clear, such agreements will not eliminate employees from bringing such wage and hour claims entirely, nor should the use of those agreements signal to employers that they need not make every good-faith effort to comply with their obligations under the Federal Labor Standards Act and/or any applicable state wage and hour laws. But the reality is that arbitration and class waiver agreements can work to avoid tens or hundreds or even thousands of employees from banding together in some of the massive wage and hour lawsuits being filed across the country. Instead, employers can require that those legal battles be conducted by a single plaintiff in a more controlled environment before an arbitrator (or panel of arbitrators). Reprinted courtesy of Brian L. Gardner & Jason R. Finkelstein, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Gardner may be contacted at bgardner@coleschotz.com Mr. Finkelstein may be contacted at jfinkelstein@coleschotz.com Read the court decision
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Texas Supreme Court Rules on Contractual Liability Exclusion in Construction Cases

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
The Texas Supreme Court ruled on Ewing v. Amerisure Ins. Co. on January 17th, a “much-anticipated” decision according to Carl A. Salisbury of Kilpatrick Townsend & Stockton LLP. “Construction projects are always the subject of contracts among owners and contractors” Salisbury stated in his article on Lexology.com. The recent decision demonstrates that “an exclusion in the standard Comprehensive Liability Insurance policy that precludes coverage for ‘liabilities assumed under contract’” does not usually “apply to construction contracts.” In 2008, Ewing Construction Company built a set of tennis courts in Corpus Christi, according to Salisbury. “Shortly after construction was complete, according to the school district, ‘the courts started flaking, crumbling, and cracking, rendering them unusable for their intended purpose of hosting competitive tennis events.’” After the school district sued Ewing in state court, Ewing “turned the suit over to Amerisure, its CGL insurer, seeking a defense and indemnity. Amerisure denied all coverage, citing the contractual liability exclusion in its policy. This inspired Ewing to sue the carrier in federal district court for the Southern District of Texas.” After several rulings and appeals, the case eventually reached the Texas Supreme Court: “According to the Ewing court, the contract claims that Ewing failed to perform in a good and workmanlike manner ‘are substantively the same as its claims that Ewing negligently performed under the contract because they contain the same factual allegations and alleged misconduct.’ Failure to perform in a ‘good and workmanlike manner’ is functionally and substantively the same as performing negligently. ‘Accordingly,’ the Ewing court said, ‘we conclude that a general contractor who agrees to perform its construction work in a good and workmanlike manner, without more, does not enlarge its duty to exercise ordinary care in fulfilling its contract, thus it does not ‘assume liability’ for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion.’” Read the court decision
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How Many Homes have Energy-Efficient Appliances?

October 08, 2014 — Beverley BevenFlorez-CDJ STAFF
The National Association of Home Builders’ Eye on Housing analyzed data from the Census Bureau’s 2011 American Housing Survey to “reveal the share of owner-occupied homes that contain various Energy Star related appliances.” Eye on Housing reported that in “new homes, the leading shares of Energy Star rated appliances were refrigerators (70%), washing machines (69%), dishwashers (65%), and central air conditioning (52%).” In “owner-occupied homes,” the survey demonstrated that “refrigerators are the most common Energy Star appliance.” Read the court decision
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Be Aware of Two New Statutes that Became Effective May 1, 2021

May 24, 2021 — Christopher G. Hill - Construction Law Musings
On May 1, 2021, two new statutes that passed in 2020 and that directly affect construction became effective. I’ve used the AGC-VA description of the bills and encourage you to read the statutes in full. Prevailing Wage Starting May 1, 2021, Virginia’s new prevailing wage statute takes effect. This statute requires any contractor bidding on state procurement jobs to pay prevailing wages for work completed on the project. Further, localities and some institutes of higher education have the option to require prevailing wages on jobs. This may have the effect of significantly raising the cost of these jobs and creating market incentives which make it very difficult for many contractors to bid on this type of work, and is consistent with work performed on VDOT and federal projects. The law further requires certified payroll for any prevailing wage job and the consequence for not following the statute includes debarment. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Title II under ADA Applicable to Public Rights-of-Way, Parks and Other Recreation Areas

June 29, 2017 — Richard E. Morton - Haight Brown & Bonesteel LLP
Plaintiff Ivana Kirola, who suffers from cerebral palsy, sued the City and County of San Francisco, in a class action contending certain public areas, including rights-of-way, pools, parks and other recreation areas, did not meet the mandate of Title II of the American With Disabilities Act (Kirola v. City and County of San Francisco, 9th Circuit Court of Appeals, No. 14-17521, 2017 DJDAR 5982). Title II provides that no qualified individual with a disability “shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Title II’s implementing regulations mandate that each facility constructed after January 26, 1992 be “readily accessible to and usable by individuals with disabilities.” And, for each facility “altered after January 26, 1992,” the altered portion must, “to the maximum extent feasible,” be likewise accessible. The Federal Architectural and Transportation Barriers Compliance Board creates nonbinding Americans With Disabilities Act Accessibility Guidelines (ADAAG) to ensure compliance with Title II, and that the Department of Justice (DOJ) adopt its own binding regulations, consistent with the ADAAG standards. Here, the District Court interpreted ADAAG standards as not applying to public rights-of-way, parks, and playground facilities. The District Court concluded that none of Kirola’s experts were reliable in their interpretation of the standards and how the standards applied to the public rights-of-way, etc. Conversely, the District Court concluded that all of the city’s experts were reliable. It thus disregarded and discarded every ADAAG violation identified by Kirola’s experts, accepting only the small number of violations identified by the city’s experts. Read the court decision
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Reprinted courtesy of Richard E. Morton, Haight Brown & Bonesteel LLP
Mr. Morton may be contacted at rmorton@hbblaw.com

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Workers at Two NFL Stadiums Test Positive for COVID-19, But Construction Continues

April 13, 2020 — Tim Newcomb - Engineering News-Record
Construction at SoFi Stadium in Inglewood, Calif., and Allegiant Stadium outside Las Vegas—two new NFL stadiums scheduled to open in 2020—continue forward despite a worker at each location testing positive for COVID-19. Tim Newcomb, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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