The Families First Coronavirus Response Act: What Every Employer Should Know
April 06, 2020 —
Donald A. Velez, Karissa L. Fox & Sarah K. Carpenter - Smith CurrieSmith Currie provides this update regarding the Families First Coronavirus Response Act as part of its continuing effort to monitor developments concerning the Coronavirus disease (“COVID-19”) and provide guidance as to potential issues that may arise in businesses across the United States.
On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”), which contains provisions requiring certain private employers to provide paid leave to employees who cannot work because of Coronavirus, expanding Family and Medical Leave Act coverage, providing for federal tax credits to affected employers, and providing eligible states the ability to further fund their unemployment trust fund accounts. The Act is effective as of April 2, 2020 and will remain in place through December 31, 2020.
Below, we provide a summary of the Act and several of its key components, including the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), the Emergency Paid Sick Leave Act, and the Emergency Unemployment Insurance Stabilization and Access Act.
Reprinted courtesy of Smith Currie attorneys
Donald A. Velez,
Karissa L. Fox and
Sarah K. Carpenter
Mr. Velez may be contacted at davelez@smithcurrie.com
Ms. Fox may be contacted at klfox@smithcurrie.com
Ms. Carpenter may be contacted at skcarpenter@smithcurrie.com
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Event-Cancellation Insurance Issues During a Pandemic
September 07, 2020 —
Lorelie S. Masters & Latosha M. Ellis - Hunton Andrews KurthAs the effects of coronavirus continue, organizations and companies now are considering whether events in late 2020 and early 2021 can take place or need to be converted to virtual events. What insurance effects will those changes and cancellations have? Consideration of these important decisions requires a review of both event-cancellation insurance and a consideration of force majeure and other such issues.
On the insurance front, years ago, many policyholders purchased event-cancellation insurance for events in 2020, 2021, and even as far out as 2024. Such policies, purchased before the middle of March 2020, generally contain explicit coverage “buy-backs” for losses from “communicable disease.” That is, the policyholders paid an extra, specifically identified premium to remove any exclusion for communicable disease from these policies. Typically, these policies do not use the word, “virus”, but rather use “communicable disease”; and exclude neither. Those policies typically cover a specified amount of net profit and include additional coverages for “Cost of Remedial Action”, “Future Marketing Expense”, etc., over and above that specified amount of coverage.
Reprinted courtesy of
Lorelie S. Masters, Hunton Andrews Kurth and
Latosha M. Ellis, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Ms. Ellis may be contacted at lellis@HuntonAK.com
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Cause Still Unclear in March Retaining Wall Collapse on $900M NJ Interchange
June 07, 2021 —
Stephanie Loder - Engineering News-RecordA probe continues by construction engineer Hardesty and Hanover LLC into what caused the late March collapse of a retaining wall that is part of one of New Jersey's largest roadbuilding projects—the already late-running effort called Direct Connection, which aims to untangle the convoluted interchange of north-south I-295 and east-west Route 42 in Camden County.
Reprinted courtesy of
Stephanie Loder, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Steps to Curb Construction Defect Actions for Homebuilders
June 15, 2017 —
Jason Daniel Feld – Kahana & Feld, LLPThe homebuilding and construction industries in California are at a record high in 2017 according to the National Homebuilders Association. While there is finally prosperity and growth for builders, developers and contractors after suffering from the recession of 2008, there is also a growth in construction defect claims. As with every industry and especially with construction, there are several risk prevention methods that can help curb this litigation.
Time Frames for Pursuing Construction Defect Claims
It is important to know and understand the time frames for which construction defect claims can be pursued by homeowners. There is a hard cut-off for construction defect litigation in California known as the Statute of Repose of 10 years. California Code of Civil Procedure (“CCP”) §337.15 provides a statute of repose that bars actions to recover damages for construction defects more than 10 years after substantial completion of the work of improvement. This provision is limited to property damage claims and does not extend to personal injuries (See, Geertz v. Ausonio, 4 Cal.App.4th 1363 (1992) and willful misconduct or fraudulent concealment claims. (See, Acosta v. Glenfed Development Corp., 128 Cal.App. 4th 1278 (2005).
There are also interim statutes of limitations for “patent” and “latent” defects discovered at the home also from the date of substantial completion. CCP §337.1(e) provides for a four year window to bring suit for deficiencies that are apparent by reasonable inspection (patent deficiencies). CCP §337.15(b) provides for deficiencies that are not apparent by reasonable inspection or hidden defects that require invasive testing to become apparent (latent deficiencies). A latent defect can become patent after it “manifests itself” (i.e. becomes observant – for example a roof leak) for which the four year window from the date of discovery would become the applicable statute of limitations.
The discovery rule effectively acts to toll the statute of limitation period on construction defect claims until they become reasonably apparent. (See, Regents of the University of CA v.Harford Accident & Indemnity, Co., 21 Cal.3d 624, 630 (1978). This is similar to a breach of contract claim, also a four year statute of limitation. Finally, the California Right to Repair Statute (SB800) – Civil Code §§895, et seq. specifically Civil Code §896 sets forth the “Functionality Standards” or a list of actionable defect items, including items affecting the component’s “useful life” and a catch-all provision for all items not expressed listed as defects in the statute. (Civil Code §897). The majority of the defects alleged have a 10 year statute of limitations. However, there are shortened statute of limitations for the following items:
| Functionality Standards | Statute of Limitations |
|---|
| Noise Transmission |
1 year from original occupancy of adjacent unit |
| Irrigation |
1 year from close of escrow |
| Landscaping Systems & Wood Posts (untreated) |
2 years from close of escrow |
| Electrical systems, pluming/sewer systems, steel fences (untreated), flatwork cracks |
4 years from close of escrow |
| Paint/Stains |
5 years from close of escrow |
| All other functionality standards (Civil Code §941(a)) |
10 years after substantial completion(date of recordation of valid NOC) |
Preventative Measures to Curb Construction Defect Litigation
Once the builder knows the time frames for construction defect claims, the following are some preventive measures to limit construction defect claims. As a reminder, homeowners are less likely to bring construction defect action if they feel that the builders are taking care of them.
1. Communicate With Homeowners Prior to Claims
It is imperative to communicate with the homeowners throughout the ten years statute of repose period. For example, most builders provide a limited warranty to the homeowners at the time of purchase. Homeowners are generally confused as to the length of the warranty and what the warranty covers. A practical tip to help curb construction defect claims is for the builder to send postcards or letters to the homeowners at the six month, one year and nine-year marks to advise the homeowner of: (1) the existence of the warranty and what is covered at each time frame; (2) the maintenance obligations of the homeowner at the various time frames; and (3) the fact that the home is approaching the ten-year mark. Most builders would rather deal directly with the homeowners through customer service than defend a construction defect litigation action where the costs to defend the claim will vastly exceed the cost to address the individual homeowner issues. The more the builder communicates with the homeowner in advance, the less likely it is that the homeowner engages in litigation against the builder.
2. Timely Response to Homeowner Claims
During the purchase process, provide the homeowners instructions on how to send in a customer service or warranty requests. Provide multiple methods for notification to the builder by the homeowner when issues arise in their home (fax, email, website forms, etc.). The builder should provide a timely response – within 48 hours of the notice if possible. The homeowner wants to receive some notification from the builder that they received their request and, at the very least, will investigate the claim. Even if it is determined to be a maintenance item or homeowner caused damage, the homeowner should receive: (1) an acknowledgement of the claim; (2) an investigation report of the issue; and (3) an action plan or conclusion statement – this can be a declination of repairs with an explanation as to the cause not being the result of original construction. Sometimes even sending a customer service representative to the home to listen to the homeowner claims and explaining that there are not repairs required is sufficient to satisfy the homeowner. The goal is to make sure the homeowner’s claims are acknowledged and that the builder is standing behind its product. In my experience, the fact that the builder failed to respond in a timely fashion to the homeowner is a significant motivating factor as to why the homeowner elected to enter formal litigation against the builder.
3. Be Proactive When Litigation Ensues Despite the fact that the homeowner has engaged an attorney and joined a construction defect action, the builder is not precluded from continuing to communicate with its homeowners. Several builders send letters to the non-plaintiff homeowners reminding them to contact the builder should they have issues at their homes rather than join the ongoing construction defect action. Under the law, clients can always talk to clients even if they are represented by counsel. While the attorneys for the builders cannot speak to the represented construction defect homeowners, the builder can communicate directly with its homeowners offering to honor its warranty and customer service procedures in lieu of the homeowner proceeding with the litigation. Both of these builder attempts to communicate with homeowners post-litigation have a dual effect – some homeowners elect to contact the builder to effectupate repairs and drop the litigation; while others elect to continue with the litigation. So proceed cautiously in this regard.
It is noted, there are many motivating factors for homeowners to bring a lawsuit against homebuilders that have nothing to do with the construction practices or customer service and are merely economically driven. However, these small steps in addition to providing solid construction practices should help curb construction defect litigation by homeowners.
Jason Daniel Feld is a founding partner of Kahana & Feld LLP, an AV Preeminent boutique litigation firm in Orange County specializing in construction defect, insurance defense, employment and general business litigation matters. The firm was founded with the goal of providing high-quality legal services at fair and reasonable rates. The firm believes that what defines attorneys is not their billing rates, but their record of success, which speaks for itself. For more information, please visit: www.kahanafeld.com.
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Parties to an Agreement to Arbitrate May be Compelled to Arbitrate with Non-Parties
February 28, 2022 —
Paul R. Cressman Jr. - Ahlers Cressman & Sleight PLLCIn a recent case decided by Division III of the Washington Court of Appeals, David Terry Investments, LLC – PRC v. Headwaters Development Group LLC,[1] the court held that parties to an arbitration agreement can be compelled to arbitrate related claims with non-parties to the agreement based on the doctrine of equitable estoppel.
The case involved six joint venture agreements to develop three separate properties in Spokane, two joint venture agreements per property. One entity, David Terry Investments, LLC – PRC (“DTI”), owned by David Terry, was a partner in each of the six joint venture agreements. DTI joint ventured with S.G. Spady Consulting (“SGSC”) and with Headwaters Development Group LLC (“HDG”) separately for each of the three properties. HDG owned the three properties, and SGSC was to provide construction management advice. Steve Spady was the principal of both HDG and SGSC. Stoneridge was a licensed general contractor, the principal of which was also Steve Spady.
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Paul R. Cressman Jr., Ahlers Cressman & Sleight PLLCMr. Cressman may be contacted at
paul.cressman@acslawyers.com
Defective Panels Threatening Profit at China Solar Farms: Energy
January 21, 2015 —
Bloomberg NewsFlaws found in some Chinese solar panels can drastically eat into their efficiency, reducing how much power the panels will produce as the country races to meet aggressive goals to hold the line on fossil fuel emissions.
The defects, found in products set to be used only in China, are in a coating that suppresses reflections on glass, allowing the panels to capture more light. About 23 percent of samples taken from dozens of Chinese companies failed to meet requirements, according to regulators in China. For samples from Jiangsu, the eastern province where much of the glass is made, the rate was as high as 40 percent.
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Bloomberg News
San Diego’s NFL Stadium Dream Counts on Munis for Chargers’ Home
June 10, 2015 —
James Nash and Darrell Preston – BloombergSan Diego, still dealing with the legacy of a pension crisis that led politicians to consider bankruptcy a decade ago, may throw taxpayer money behind municipal bonds for a football-stadium bidding war.
The city and the National Football League’s Chargers are negotiating on a proposed $1.3 billion coliseum to keep the team from leaving for Los Angeles. A plan backed by a city panel would have San Diego pay $121 million of the new stadium’s debt, even though it still owes $52 million for the Chargers’ current home. San Diego County would chip in, too.
The quest to keep the team has triggered a debate over whether to finance professional football as the city deals with $2 billion of deferred maintenance brought about in part by mounting pension costs. The city’s retirement system has a shortfall just as large, which led voters three years ago to approve reducing benefits for city workers.
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James Nash, Bloomberg and
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Terminating Notice of Commencement Without Contractor’s Final Payment Affidavit
October 23, 2018 —
David Adelstein - Florida Construction Legal UpdatesPrior to construction work being performed on your property, a Notice of Commencement should be recorded. Among other things, construction liens will relate back in time to an effective Notice of Commencement (meaning it has not expired). For this reason, lenders or others will want the Notice of Commencement to be terminated when the job is complete by recording in the official records a Notice of Termination of the Notice of Commencement. There is a statutory procedure to terminate a Notice of Commencement pursuant to Florida Statute 713.132.
Frequently, a clerk will want the Notice of Termination of the Notice of Commencement to be accompanied with a Contractor’s Final Payment Affidavit because 713.132 says, in material part:
(2) An owner has the right to rely on a contractor’s affidavit given under s. 713.06(3)(d), except with respect to lienors who have already given notice, in connection with the execution, swearing to, and recording of a notice of termination. However, the notice of termination must be accompanied by the contractor’s affidavit.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
