Update: Supreme Court Issues Opinion in West Virginia v. EPA
August 03, 2022 —
Anne Idsal Austin, Shelby L. Dyl & Sheila McCafferty Harvey - PillsburyTakeaways
- The Supreme Court sided with a coalition of states and coal mining companies constraining EPA’s ability to regulate CO2 emissions from power plants.
- The Supreme Court’s deployment of the “major questions doctrine” could have far-reaching implications for agencies’ authority to take actions that are politically and economically significant.
- The Court also announced a broad interpretation of standing, finding that the challengers could bring their suit notwithstanding EPA’s announced nonenforcement of the Clean Power Plan and intent to engage in a rulemaking to replace it.
Introduction
On June 30, 2022, the Supreme Court issued its opinion in West Virginia v. EPA, invalidating the 2015 Obama-era Clean Power Plan (CPP). Chief Justice John Roberts delivered the opinion of the court, holding that Section 111(d) of the Clean Air Act does not authorize EPA to devise emissions caps based on “generation shifting”—the approach EPA took in the CPP wherein power plants would be required to transition from higher-emitting (e.g., coal) to lower-emitting (e.g., natural-gas) to then even lower-emitting (e.g., wind and solar) electricity production.
The Court’s holding that the case was justiciable despite the Biden administration’s stated intent to repeal the Clean Power Plan and engage in a new rulemaking, as well as its deployment of the “major questions doctrine,” is likely to have far-reaching implications for legal challenges to all administrative agency actions.
Reprinted courtesy of
Anne Idsal Austin, Pillsbury,
Shelby L. Dyl, Pillsbury and
Sheila McCafferty Harvey, Pillsbury
Ms. Austin may be contacted at anne.austin@pillsburylaw.com
Ms. Dyl may be contacted at shelby.dyl@pillsburylaw.com
Ms. Harvey may be contacted at sheila.harvey@pillsburylaw.com
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Herman Russell's Big Hustle
May 20, 2024 —
Maggie Murphy - Construction Executive“Any person that I knew of in the city of Atlanta who did anything ran it by Herman before they did anything else.”
These are the words of Anthony Dixon, senior project manager and 47-year veteran employee with H. J. Russell & Company. But ask anyone who knows anything about H. J. Russell, and they’ll say the same thing: The story of the company is the story of Herman J. Russell himself.
From humble beginnings in Atlanta’s Summerhill neighborhood came a young man with an unbreakable entrepreneurial spirit, who used that drive to forge an unlikely path to success in the Jim Crow–era South. What began as a plastering company in 1952 is today one of the largest Black-owned contractors in the United States, with Herman’s children—Donata Russell Ross, H. Jerome Russell and Michael B. Russell Sr.—at the helm (a natural fit for the family-focused firm).
Over its 72-year history, H. J. Russell has grown exponentially, contracted when necessary and persevered through segregation, the turbulence of the Civil Rights Movement and multiple economic downturns. Now, in the next five years, they’re poised to become a billion-dollar company.
But long before any of that, there was just a boy and a dream.
Reprinted courtesy of
Maggie Murphy, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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A Homeowner’s Subsequent Action is Barred as a Matter of Law by way of a Prior “Right to Repair Act” Claim Resolved by Cash Settlement for Waiver of all Known or Unknown Claims
February 26, 2015 —
Richard H. Glucksman, Esq., Jon A. Turigliatto, Esq., and David A. Napper, Esq. – Chapman Glucksman Dean Roeb & Barger BulletinDavid Belasco v. Gary Loren Wells et al. (2015) B254525
OVERVIEW
In a decision published on February 17, 2015, the Second District Court of Appeal made clear that settlement agreements containing waivers of unknown claims in connection with a construction of a property, absent fraud or misrepresentation, will be upheld. In brief, the homeowner plaintiff had made a claim against the builder pursuant to California Code of Civil Procedure Section 896 (“Right to Repair”) and settled for a cash payment and obtained a Release of all Claims including for all known and unknown claims. The court held that homeowner’s subsequent construction defect claim was barred pursuant to the terms and conditions of the earlier release.
DISCUSSION
Plaintiff and Appellant, David Belasco ("Belasco"), purchased a newly construction home in Manhattan Beach from builder Gary Loren Wells ("Wells"). Two years after purchasing the property, Belasco filed a Complaint for construction defects, which eventually resulted in settlement between the parties. The settlement agreement included a California Civil Code Section 1524 waiver of all known or unknown claims with the word "claims" defined in part as “any and all known and unknown construction defects." Six years later in 2012, Belasco filed a Complaint alleging a claim, amongst others, that the defective and leaky roof breached the statutory warranty on new construction under California Civil Code section 896 ("Right to Repair Act").
Relying on San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th 1048, Wells and Wells' surety, American Contractors Indemnity Company (collectively "Wells"), filed a motion for summary judgment contending that the 2012 action was barred by the settlement of Belasco’s prior Complaint against Wells for construction defects to his home. When the trial court ruled in favor of Wells, Belasco appealed. Belasco, a patent attorney, made the following contentions:(1) the general release and section 1542 wavier in the settlement agreement for patent construction defects is not a "reasonable release" of a subsequent claim for latent construction defects within the meaning of section 929 and the “Right to Repair” Act; (2) a reasonable release can only apply to a "particular violation" and not to a latest defect under the language of section945.5, subdivision (f), and the settlement was too vague to be valid because it does not reference a "particular violation;" (3) section 932 of the California Civil Code specifically authorizes an action on "[s]subsequently discovered claims of unmet standards;" (4) public policy prohibits use of a general release and section 1542 waiver to bar a subsequent claim for latent residential construction defects; and (5) a genuine issue of material fact exists concerning Belasco's fraud and negligence claims that would have voided the settlement pursuant to section 1668.
Pursuant to the "Right to Repair Act" Section 929 subsection (a), a builder can make a cash offer in lieu of a repair and the homeowner is free to accept or reject such offer. Section 929subsection (b) goes on to state that
"[t]he builder may obtain a reasonable release in exchange for the cash payment. The builder may negotiate the terms and conditions of any reasonable release in terms of scope and consideration in conjunction with a cash payment under this chapter."
The Second District Court of Appeal ruled that the prior cash settlement, with a release and section 1524 wavier, was a "reasonable release" under the language of California Civil Code Section 929.
On multiple occasions, the Court noted that Belasco is an attorney and was represented by an attorney during the negotiation of the settlement agreement. By executing the agreement with express language regarding what claims were to be release, Belasco released Wells of "any and all claims" due to "any and all known and unknown construction defects." The Court reasoned that because Belasco is an attorney in his own right, he should have understood the import of the Section 1542 waiver and had the opportunity to reject or revise the settlement agreement prior to binding himself to it. The Court further found that the agreement "could not have been more clear" regarding the waiver of all unknown and known construction defect claims and therefore was not vague. Belasco's additional contentions were found to be without merit because Belasco availed himself of the statutory remedy of a cash settlement in lieu of repairs and voluntarily entered into a negotiated settlement agreement. Lastly, Belasco failed to present any evidence regarding his misrepresentation claim.
When a homeowner files a "Right to Repair Act" claim, often it seems that only two options exist: either repair the alleged defects or go to court. However, Belasco is a reminder to builders that the "Right to Repair Act" does offer an avenue for settlement. The Second District Court of Appeal presented a clear, unqualified opinion regarding the validity and enforceability of settlement agreements releasing all known or unknown construction defects in a single family home case. The Court will hold parties to the settlements they agree to. This is especially so when one of the parties is an attorney and provides deposition testimony expressly acknowledging that he understood the scope of the agreement. Attorneys for builders should always include a waiver of all known and unknown claims, which pursuant to Belasco and San Diego Hospice, will ensure that any future claims at the property will be effectively barred by the terms of the settlement agreement.
Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys
Richard H. Glucksman,
Jon A. Turigliatto and
David A. Napper
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Turigliatto may be contacted at jturigliatto@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com
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Times Square Alteration Opened Up a Can of Worms
January 26, 2017 —
Nadine M. Post – Engineering News-RecordCompared with some of its Manhattan neighbors, a high-rise on the corner of Seventh Avenue and West 47th Street looks standard. Like many buildings in Times Square, the 41-story retail-entertainment-hotel development, nearly topped out, has a tower springing from a boxy base that will sport a flashy billboard.
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Nadine M. Post, Engineering News-RecordMs. Post may be contacted at
postn@enr.com
New York Court of Appeals Addresses Choice of Law Challenges
August 20, 2018 —
Grace V. Hebbel - Saxe Doernberger & Vita, P.C.In June, the New York Court of Appeals examined the application of a New York Choice of Law provision in a contract – a determinative issue for the case. In Ontario, Inc. v. Samsung C&T Corp., the issue was whether the plaintiff’s claims were subject to Ontario, Canada’s 2-year statute of limitations or New York’s 6-year statute of limitations for breach of contract where the contract contained a broad New York Choice of Law provision. The court found that pursuant to New York’s borrowing statute, Ontario’s more restrictive statute of limitations applied. The action was dismissed as time-barred, serving as a harsh reminder of the potential effects of choice of law and limitations periods.
The suit arose out of the following facts. In 2008, an Ontario renewable energy developer, SkyPower Corp. (“SkyPower”), entered into a Non-Disclosure Agreement (NDA) with the defendants which allowed the defendants to review SkyPower’s confidential and proprietary information. The review was conditioned on restricted disclosure and the requirement that the information would be destroyed after review.
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Grace V. Hebbel, Saxe Doernberger & Vita, P.C.Ms. Hebbel may be contacted at
gvh@sdvlaw.com
More Business Value from Drones with Propeller and Trimble – Interview with Rory San Miguel
August 10, 2017 —
Aarni Heiskanen - AEC BusinessHere’s my interview with Rory San Miguel, CEO of Propeller Aerobotics, a UAV tech company. We’re discussing the use of drones in construction and the company’s recently announced collaboration with Trimble to deliver efficient UAV workflows.
You’re a co-founder of Propeller. How did your company come about?
I met Francis (Propeller co-founder) in 2013 at a drone delivery startup called Flirtey. There we worked closely on drone technology as engineers but ultimately felt like there were nearer term revenue opportunities for drones in the mapping/surveying space. We quickly spun out to start Propeller and have focussed on making drone data easy for construction, mining, quarries and landfills since then.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
info@aepartners.fi
Illinois Appellate Court Address the Scope of the Term “Resident” in Homeowners Policy
April 11, 2022 —
James M. Eastham - Traub LiebermanIn Farmers Ins. Exch. v. Cheekati, 2022 IL App (4th) 210023, the 4th District Court of Appeals for the State of Illinois addressed whether the term “resident” in a homeowners policy included a tenant leasing the insured premises. The Insureds owned property which was insured through Farmers under a homeowner’s policy. Unable to sell the property, the Insureds entered into a two-year lease agreement with a tenant. Several months after entering into the lease agreement, the tenant allegedly sustained physical injuries inside of the rented premises when a staircase collapsed. The tenant sued the Insureds and the matter was tendered to Farmers. Thereafter, Farmers denied coverage based on an exclusionary provision in the homeowner’s policy. Specifically, the policy contained a "Liability Exclusions" section, which provided:
"Coverage E (Personal Liability) *** and personal injury coverage, if covered under this policy, do not apply to: Any insured or other residents of the residence premises. We do not cover bodily injury or personal injury to: (a) any insured; or (b) any resident of the residence premises, whether resident in the dwelling or a separate structure." (Emphases in original.)
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James M. Eastham, Traub LiebermanMr. Eastham may be contacted at
jeastham@tlsslaw.com
Miorelli Doctrine’s Sovereign Immunity in Public Construction Contracts — Not the Be-All and End-All
March 21, 2022 —
David Adelstein - Florida Construction Legal UpdatesIn the Florida commercial contract public arena, there is a sovereign immunity doctrine known as the Miorelli doctrine after 1997 Florida Supreme Court decision, County of Brevard v. Miorelli Eng’g, Inc., 703 So.2d 1049 (Fla. 1997). This doctrine would apply to construction contracts between a contractor and a public body.
Through the years, the Miorelli doctrine stands for the proposition in commercial transactions with a Florida public body “that the doctrine of sovereign immunity precludes recovery of the cost of extra work where claims for that extra work are ‘totally outside’ the terms of the contract.” Monroe County v. Ashbritt, Inc., 47 Fla.L.Weekly D594a (Fla. 3d DCA 2022). See also Asbritt, n.2 quoting Posen Construction v. Lee County, 921 F.Supp.2d 1350, 1356 (M.D.Fla. 2013) (“A claim for damages predicated on work ‘totally outside the terms of the contract‘ is barred by the doctrine of sovereign immunity, whereas damages caused by extra work done at the state’s behest and in furtherance of the contractual covenants (express or implied) are potentially recoverable.”)
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
