Embattled SNC-Lavalin Files Ethics Appeal, Realigns Structure
May 01, 2019 —
Debra K. Rubin - Engineering News-RecordEven as Montreal design-build giant SNC-Lavalin Group Inc. faces corporate bribery charges on old Libya contracts, the firm now seeks, in an April 4 federal court appeal, to reverse Canadian prosecutors’ 2018 rejection of a negotiated settlement.
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Debra K. Rubin, ENRMs. Rubin may be contacted at
rubind@enr.com
Key California Employment Law Cases: October 2018
December 11, 2018 —
Alejandro G. Ruiz & Eric C. Sohlgren - Payne & FearsThis month’s key employment law cases address the test for independent contractor status, the legality of an incentive compensation system, and personal liability for wage and hour violations.
Garcia v. Border Transp. Group, LLC, Cal. Ct. App. Oct. 22, 2018
Summary: Defendants must satisfy Dynamex ABC test to establish independent contractor status as defense to wage order claims, but Borello multifactor test applies to non-wage-order claims.
Facts: Plaintiff leased a taxicab license and taxicab from defendants. Plaintiff brought several employment claims against defendants, including claims for whistleblower wrongful termination, unpaid wages, minimum wages, meal and rest break penalties, wage statement penalties, civil penalties under the California Labor Code Private Attorney Generals Act (“PAGA”), waiting time penalties, and unfair competition. Defendants filed a motion for summary judgment on all claims on the ground that plaintiff was an independent contractor and not an employee. Relying on the factors described in Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341, 256 Cal. Rptr. 543 (1989), defendant presented evidence that plaintiff set his own hours, used the cab for personal business, kept collected fares, used a radio dispatch service, entered into sublease agreements, held other jobs, and advertised services in his own name.The trial court granted summary judgment in favor of defendants. While plaintiff’s appeal was pending, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903, 232 Cal. Rptr. 3d 1 (2018), establishing a new test for independent contractor status under the definition of employment found in the California Industrial Welfare Commission Wage Orders.
Reprinted courtesy of
Alejandro G. Ruiz, Payne & Fears and
Eric C. Sohlgren, Payne & Fears
Mr. Ruiz may be contacted at agr@paynefears.com
Mr. Sohlgren may be contacted at ecs@paynefears.com
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Congratulations 2020 DE, MA, NY and PA Super Lawyers and Rising Stars
November 16, 2020 —
White and Williams LLPSixteen White and Williams lawyers have been named by Super Lawyers as a Delaware, Massachusetts, New York or Pennsylvania "Super Lawyer" while eleven received "Rising Star" designations. Lawyers are selected through a process that takes into consideration peer recognition and professional achievement. The lawyers named to this year’s list represent a multitude of practices throughout the firm.
Reprinted courtesy of
White and Williams LLP
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Georgia Court of Appeals Upholds Denial of Coverage Because Insurance Broker Lacked Agency to Accept Premium Payment
December 07, 2020 —
Lawrence J. Bracken II, Michael S. Levine & Rachel E. Hudgins - Hunton Insurance Recovery BlogIn American Reliable Insurance Company v. Lancaster, the Georgia Court of Appeals reversed the denial of a property insurer’s summary judgment motion concerning the insurer’s denial of a fire loss claim. The basis of the denial was that the policyholders had failed to pay the policy premium. The policyholders, Charlie and Wanda Lancaster, claimed that they had paid their policy premiums for several years to their insurance agent, Macie Yawn. In October 2014, American Reliable mailed a renewal notice to the Lancasters notifying them that premium payments had to be made directly to the insurer. After it did not receive payment from the Lancasters, American Reliable sent them a cancellation notice in December 2014, again notifying them that payments be made directly to the insurer. The Lancasters denied having received either notice from American Reliable, but the record included a receipt for certificate of mailing.
After the Lancaster’s home burned down in 2015, American Reliable denied coverage on the grounds that the policy had been cancelled for nonpayment of premium. In the subsequent coverage action, the trial court denied American Reliable’s motion for summary judgment, ruling that a factual issue existed as to the actual and apparent agency of the insurance agent, Yawn. On appeal, the Court of Appeals found that the trial court erred in deciding that there was a factual issue concerning Yawn’s agency. Specifically, the Court of Appeals ruled that the record showed American Reliable had terminated Yawn’s agency to accept policy premiums, and that the Lancaster’s received notice of that termination in the renewal and cancellation notices. In addition to determining that Yawn was not an actual agent, the Court held that Yawn did not have apparent agency, because the notices sent to the Lancasters stated that the premium payment was to be paid to American Reliable, not to the agent.
Reprinted courtesy of
Lawrence J. Bracken II, Hunton Andrews Kurth,
Michael S. Levine, Hunton Andrews Kurth and
Rachel E. Hudgins, Hunton Andrews Kurth
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Hudgins may be contacted at rhudgins@HuntonAK.com
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Construction Mezzanine Financing
March 29, 2017 —
Tim Davis & Steven Coury - White and Williams LLPConstruction mezzanine lending is on the rise and more development deals are getting done with a capital stack that includes mezzanine debt in addition to the traditional components of sponsor equity and senior mortgage debt. Below are important issues and concepts to bear in mind when structuring the financing of a construction project that includes a mezzanine debt component.
Funding Sequence
Funding Sequence
When will the proceeds of the mezzanine loan be advanced? In some instances, the mezzanine loan proceeds will be advanced only after all of the borrower’s equity has been contributed to the construction of the project. In other instances, the borrower’s equity and the mezzanine loan proceeds go in either pari passu or simultaneously at another ratio. If the equity is not entirely contributed in advance, the mezzanine lender may require that the uncontributed equity be held by the mezzanine lender or held in a pledged account. The mezzanine lender may also further mitigate the risk of non-funding of the equity by requiring an equity funding guaranty (as discussed below).
Additionally, when will the mezzanine loan proceeds be advanced in relation to the senior mortgage loan proceeds? Will the entire mezzanine loan be advanced prior to any senior mortgage loan advance or will they be advanced pari passu? Depending on the business deal, the mezzanine loan agreement will need to reflect how and when the equity, the mezzanine debt, and the mortgage debt will be advanced.
Reprinted courtesy of
Tim Davis, White and Williams LLP and
Steven Coury, White and Williams LLP
Mr. Davis may be contacted at davist@whiteandwilliams.com
Mr. Coury may be contacted at courys@whiteandwilliams.com
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Construction Defect Leads to Death, Jury Awards $39 Million
November 27, 2013 —
CDJ STAFFA failure in the installation of a 13-ton concrete panel in Milwaukee County lead to the death of a 15-year-old boy in 201; two others were also injured. A lawsuit over this has concluded with the contractor, Advance Cast Stone, found culpable due to their concealing that the panel was not installed as prescribed. The incident happened at a parking garage operated by the county.
Advanced Cast Stone made the claim that the method they used to secure the panel had been approved by other in the project. The jury awarded $6.3 million to the estate of Jared Kellner, $1.5 million each to the young man who was injured, Eric Wosniki, and his parents. The county was also awarded $6 million for lost revenue in the parking garage and for repairs.
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Concerns Over Unstable Tappan Zee Bridge Push Back Opening of New NY Bridge's Second Span
October 02, 2018 —
The New York Daily News - Engineering News-RecordSept. 08 --Big bridge, big scissors, big problems.
A day after an elaborate ribbon-cutting ceremony, the grand opening of the second span of the new Gov. Mario M. Cuomo bridge was postponed over concerns that the remains of the "destabilized" and "dangerous" Tappan Zee Bridge could collapse.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
California Appellate Court Confirms: Additional Insureds Are First-Class Citizens
May 04, 2020 —
Scott S. Thomas - Payne & FearsMany businesses shift risk by requiring others with whom they do business – e.g., vendors, subcontractors, suppliers, and others – to procure insurance on their behalf by making the business an “additional insured” under the other person’s liability insurance policy. Unfortunately, insurance companies sometimes treat these additional insureds as second-class citizens, refusing to acknowledge that the additional insured has the same rights as the policyholder, who paid the premium. In Philadelphia Indemnity Insurance Company v. SMG Holdings, a California appellate court removes any doubt whether these additional insureds are third-party beneficiaries entitled to the same rights – and bound by the same duties – as the entity that bought the policy.
While the dispute at issue in SMG Holdings was a narrow one – i.e., whether the additional insured was bound by the policy’s arbitration clause – the implications of its holding are far ranging in ways that, in some instances, may benefit the additional insured. For example, because the additional insured is an intended beneficiary under the policy, neither the insurer nor the policyholder may do anything to impair the additional insured’s rights under the policy; if they do, they may be liable for tortiously interfering with the additional insured’s contract rights. This means that (again, by way of example) if the insurer attempts to rescind, or cancel, or amend the policy in a way that impairs the additional insured’s rights, the additional insured may have recourse. It also means that if the policyholder does something untoward that jeopardizes the additional insured’s rights under the policy, the policyholder may be liable to the additional insured for any resulting harm.
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Scott S. Thomas, Payne & FearsMr. Thomas may be contacted at
sst@paynefears.com