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DIRECTORY AND CAPABILITIES

The Rubber Hits the Ramp: A Maryland Personal Injury Case

September 17, 2014 — Beverley BevenFlorez-CDJ STAFF
An elderly woman filed suit against the Town of Ocean City, Maryland, “after allegedly falling from her wheelchair because of a defective rubber warning mat on a resort street corner,” according to The Dispatch. The accident occurred when the woman’s wheelchair “struck one of the hard rubber warning mats on the handicap-accessible street corners.” The plaintiff is seeking “$750,000 in damages on three counts including negligence, strict liability and a violation of the Americans with Disabilities Act (ADA).” However, The Dispatch reported that it is not clear who is liable, since the sidewalk is owned and maintained by the town, but the State Highway Administration installed the rubber warning mats. Read the court decision
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Vaccine Mandate Confusion Continues – CMS Vaccine Mandate Restored in Some (But Not All) US States

January 03, 2022 — David S. Harvey, Jr. & Sarah Hock - Lewis Brisbois
Tampa, Fla. (December 16, 2021) - As has been widely publicized, the Biden Administration has attempted to impose various forms of vaccine mandates under a variety laws and programs. At the same time, we have seen a flurry of opposition to these efforts ranging from new state laws (for example, in Florida) to court challenges seeking to enjoin the effort. One of the federal mandates was issued by the Centers for Medicare & Medicaid Services (CMS) and is applicable to staff at Medicare- and Medicaid-certified healthcare providers. Initially, fourteen states sued in opposition to the CMS mandate and were able to obtain a nationwide injunction issued by a federal district judge in Louisiana. That injunction was appealed to the Fifth Circuit Court of Appeals, which has now issued a decision that awards points to both sides. The Fifth Circuit ruled the injunction only applies to the 14 states that participated in the Louisiana lawsuit and not nationwide. Those states are Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia. This opinion has the potential to revive the CMS vaccine mandate in just over half of U.S. states. We can anticipate new suits will be filed as to other states, with the outcome still uncertain. It is unknown at this point whether the United States Supreme Court will agree to review the issues when such review is sought in the near future. Reprinted courtesy of David S. Harvey, Jr., Lewis Brisbois and Sarah Hock, Lewis Brisbois Mr. Harvey may be contacted at David.Harvey@lewisbrisbois.com Ms. Hock may be contacted at Sarah.Hock@lewisbrisbois.com Read the court decision
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The Construction Lawyer as Counselor

June 10, 2019 — Christopher G. Hill - Construction Law Musings
It’s been a while since I discussed the role that I believe a construction lawyer should serve. Back in 2013, I discussed how those of us that practice construction law are seen as “necessary evils.” I was thinking over the weekend about certain clients and matters (as I often do, particularly in the shower) and came to the conclusion that the best role for me as a Virginia construction attorney is that of counselor and sounding board for my clients. Sure I come from a litigation background, enjoy working with other construction lawyers here in the Commonwealth, and often the first contact that I have with clients is when there is a problem, but I enjoy my practice, and I believe clients are more satisfied with their interactions with me when I try and provide a more cost effective and pragmatic solution than that which litigation or arbitration provides. The six years of solo construction practice since 2013 (yes, I’m close to the 9 year mark with my practice) has only served to cement the fact that construction professionals need and want the “counselor” portion of “attorney and counselor at law.” Working as a sort of “in house counsel” to various construction companies, as opposed to simply dealing with the litigation, allows me to better understand their businesses and assist them in avoiding problems through contract review, discussions of situations that come up short of claims, and general risk management. I also get to know these mostly small business owners on a more personal level (sometimes even resulting in a fishing trip or two). 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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Pennsylvania Supreme Court Dismisses Appeal of Attorney Fee Award Under the Contractor and Subcontractor Payment Act

February 16, 2016 — William J. Taylor – White and Williams LLP
In late December, the Supreme Court of Pennsylvania dismissed, as improvidently granted, the appeal in Waller Corporation v. Warren Plaza, Inc., No. 6 WAP 2015 (December 21, 2015). As a result, the Superior Court’s holding in that case that there is no good faith exception to the attorney fee provision of the Pennsylvania Contractor and Subcontractor Payment Act (CASPA), 73 P.S. §§ 501-516, remains intact. In its decision in Waller, 95 A.3d 313 (Pa. Super. 2014), the Superior Court considered if there was a “good faith” exception to the interest and penalties provision of CASPA, 73 P.S. § 512(a), and whether there was a similar good faith exception to the attorney fee provision of the statute, 73 P.S. § 512(b). The court held that while an award of interest and penalties under § 512(a) could be denied if a party had a good faith basis for withholding payments due under a construction contract, no such exception exists for an award of attorney fees under § 512(b). Rather, an award of attorney fees is appropriate for the “substantially prevailing party” under a CASPA claim, and a claimant can be the substantially prevailing party even if the other party withheld payments in good faith. Read the court decision
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Reprinted courtesy of William J. Taylor, White and Williams LLP
Mr. Taylor may be contacted at taylorw@whiteandwilliams.com

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Sometimes a Reminder is in Order. . .

June 21, 2021 — Christopher G. Hill - Construction Law Musings
Recently, I was talking with my friend Matt Hundley about a recent case he had in the Charlottesville, VA Circuit Court. It was a relatively straightforward (or so he and I would have thought) breach of contract matter involving a fixed price contract between his (and an associate of his Laura Hooe) client James River Stucco and the Montecello Overlook Owners’ Association. I believe that you will see the reason for the title of the post once you hear the facts and read the opinion. In James River Stucco, Inc. v. Monticello Overlook Owners’ Ass’n, the Court considered Janes River Stucco’s Motion for Summary Judgment countering two arguments made by the Association. The first Association argument was that the word “employ” in the contract meant that James River Stucco was required to use its own forces (as opposed to subcontractors) to perform the work. The second argument was that James River overcharged for the work. This second argument was made without any allegation of fraud or that the work was not 100% performed. 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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How Are You Dealing with Material Delays / Supply Chain Impacts?

June 07, 2021 — David Adelstein - Florida Construction Legal Updates
In a prior article I discussed a material escalation provision in your construction contract to account for the volatility of the material price market. While including such a provision may not have been much of a forethought before, it is now! What about concerns with the actual supply chain that impacts the availability of and the lead time of materials? How are you addressing this concern in your construction contract? The pandemic has raised awareness to this issue as certain material availability has been impacted by the pandemic. As a result, parties in construction have tried to forecast those materials where delivery issues may occur including those materials with longer than expected lead times. But equally important is how this issue is being addressed in your construction contract including how you want to negotiate this risk in future construction contracts. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Material Prices Climb…And Climb…Are You Considering A Material Escalation Provision?

May 31, 2021 — David Adelstein - Florida Construction Legal Updates
As you may know, material prices have been climbing. And they continue to climb based on the volatility of the material market. On top of that, there are lead times in getting material due to supply chain and other related concerns. The question is, how are you addressing these risks? These are risks that need to be addressed in your contract. As it relates to climbing material prices, one consideration is a material escalation provision. The objective of this provision is to address the volatility of the material market in economic climates, such as today’s climate, where the price of material continues to climb. Locking down a material price today will be different than locking down the same price months from today. This volatility and risk impacts pricing and budgets. Naturally, an owner and contractor would like to be in a position to lock down supplier prices as soon as possible—both to secure pricing and to account for items with long lead times or that recent data forecasts a long lead time due to supply chain concerns. However, this is not always possible or practical and can depend on numerous issues such as when the owner contracts with the contractor, when the owner issues the notice to proceed (and permits are issued), final construction documents and revisions to the construction documents, the type of material, whether there is staging or storage available for the materials, and the current status including climitazation of the project. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Allegations of Actual Property Damage Necessary to Invoke Duty to Defend

January 17, 2013 — Tred Eyerly, Insurance Law Hawaii

The Fifth Circuit held that under Texas law, conclusory allegations of property damage in the underlying complaint did not trigger the insurer's duty to defend. PPI Tech. Serv., L.P. v. Liberty Mut. Ins. Co., 2012 U.S. App. LEXIS 24571 (5th Cir. Nov. 29, 2012).

Royal Production Company was the lessor and operator of three leases for oil exploration. Royal retained the insured, PPI, as its agent to assist in well-planning and oversee the drilling of wells on the leases.

A well was drilled on one of the three leased areas, but in resulted in a dry hole. It was later discovered that the well had been drilled on the wrong lease. Royal sued PPI for negligence, claiming that PPI caused the drilling rig to be towed to the wrong location, resulting in a dry hole and "property damage." 

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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

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