New OSHA Regulations on Confined Spaces in Construction
May 20, 2015 —
Craig Martin – Construction Contractor AdvisorOn May 1, OSHA announced its final rules for construction workers in confined spaces. The Final Rules, which will take effect August 3, 2015, will require more comprehensive training , with the goal of providing construction workers the same or similar protections as employees in manufacturing and general industry.
The final rule will cover confined spaces such as:
- Crawl spaces
- Manholes
- Tanks
- Sewers
The final rule will require the following:
- Confined spaces must be large enough for an employee to enter and have a means of exiting.
- The air in confined spaces must be tested before workers enter them to ensure that the air is safe.
- Construction workers must share safety information with others when they are going to work in enclosed/confined spaces.
- Hazards associated with confined spaces must be continuously monitored and abated to the extent possible.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Eleven Newmeyer Dillion Attorneys Named to 2023 U.S. News Best Lawyers in Multiple Practice Areas
August 29, 2022 —
Newmeyer DillionNEWPORT BEACH, Calif. – August 18, 2022 – Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that eleven of the firm’s attorneys were recently selected for inclusion and will be recognized in their respective areas in The Best Lawyers in America© 2023.
Additionally, Greg Dillion, Thomas Newmeyer and Michael McClellan have been selected to Best Lawyers 2023 Lawyer of the Year list in Litigation - Construction, Construction Law and Litigation - Real Estate respectively.
The eleven 2023 Best Lawyers are:
Best Lawyers is the oldest peer-review publication for the legal profession. Attorneys are chosen through intensive peer-review surveys in which leading lawyers evaluate their professional peers. Best Lawyers listings are published in almost 70 countries worldwide and are recognized for their reliable and unbiased selections.
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Design and Construction Defects Not a Breach of Contract
February 14, 2013 —
CDJ STAFFThe California Court of Appeals tossed out a breach of contract award in Altman v. John Mourier Construction. The decision, which was issued on January 10, 2013, sent the construction defect case back to a lower court to calculate damages based on the conclusions of the appeals court.
The case involved both design issues and construction issues. According to the plaintiffs’ expert, the design plans did not make the buildings sufficiently stiff to resist the wind, and that the framing was improperly constructed, further weakening the structures, and leading to the stucco cracking. Additionally, it was alleged that the roofs were improperly installed, leading to water intrusion. The contractor’s expert “agreed the roofs needed repair, but disputed what needed to be done to repair the roofs and the cost.”
The jury rejected the plaintiffs’ claims of product liability and breach of warranty, but found in their favor on the claims of breach of contract and negligence. The plaintiffs were awarded differing amounts based on the jury’s conclusions about their particular properties.
Both sides sought new trials. JMC, the contractor, claimed that the jury’s verdicts were “inconsistent in that the relieved JMC of liability for strict products liability and breach of warranty, but found JMC liable for breach of contract and negligence.” The plaintiffs “opposed the setoff motion on the ground that the jury heard evidence only of damages not covered by the settlements.” Both motions were denied. After this, the plaintiffs sought and received investigative costs as damages. JMC appealed this amended judgment.
The appeals court rejected JMC’s claims that evidence was improperly excluded. JMC sought to introduce evidence concerning errors made by the stucco subcontractor. Earlier in the trial, JMC had insisted that the plaintiffs not be allowed to present evidence concerning the stucco, as that had been separately settled. When they wished to introduce it themselves, they noted that the settlement only precluded the plaintiffs from introducing stucco evidence, but the trial court did not find this persuasive, and the appeals court upheld the actions of the trial court. Nor did the appeals court find grounds for reversal based on claims that the jury saw excluded evidence, as JMC did not establish that the evidence went into the jury room. Further, this did not reach, according to the court, a “miscarriage of justice.”
The court rejected two more of JMC’s arguments, concluding that the negligence award did not violate the economic loss rule. The court also noted that JMC failed to prove its contention that the plaintiffs were awarded damages for items that were covered in settlements with the subcontractors.
The appeals court did accept JMC’s argument that the award for breach of contract was not supported by evidence. As the ruling notes, “plaintiffs did not submit the contracts into evidence or justify their absence; nor did plaintiffs provide any evidence regarding contract terms allegedly breached.”
The court also did not allow the plaintiffs to claim the full amount of the investigative costs. Noting that the trial court had rational grounds for its decision, the appeals court noted that “the jury rejected most of the damages claimed by plaintiffs, and the trial court found that more than $86,000 of the costs itemized in plaintiffs’ invoices ‘appear questionable’ as ‘investigation’ costs/damages and appeared to the trial court to be litigation costs nonrecoverable under section 1033.5.”
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Forum Selection Provisions Are Not to Be Overlooked…Even On Federal Projects
September 16, 2024 —
David Adelstein - Florida Construction Legal UpdatesForum selection provisions are NOT to be overlooked. Ever. Treat them seriously. Even on federal projects where there is a Miller Act payment bond. Consider forum selection provisions on the front end when negotiating your contract.
In a recent opinion, U.S. f/u/b/o Timberline Construction Group, LLC vs. Aptim Federal Services, LLC, 2024 WL 3597164 (M.D.Fla. 2024), a joint venture prime contractor was hired by the federal government to build a temporary housing site. The joint venture prime contractor obtained a Miller Act payment bond. The joint venture then entered into a subcontract with one of its joint venture members and the member-subcontractor then engaged a sub-subcontractor. The sub-subcontractor claimed it was owed $3.5 Million and sued the member-subcontractor, as well as the prime contractor’s Miller Act payment bond, in the Middle District of Florida. The member-subcontractor and the Miller Act payment bond sureties moved to transfer venue to the Middle District of Louisiana pursuant to a forum selection clause in the contract between the sub-subcontractor and the member-subcontractor. The contract provided that the exclusive venue would be a United States District Court located in Louisiana.
Forum selection provisions are analyzed in federal court under 28 U.S.C. 1404(a): “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” U.S. f/u/b/o Timberline, supra at *2. A forum selection provision is presumptively valid and given controlling weight. Id. (quotations and citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
The 411 on the New 415 Location of the Golden State Warriors
June 10, 2015 —
Garret Murai – California Construction Law BlogYou can feel the buzz here in the Bay Area as the Golden State Warriors enter Game 4 of the NBA Playoffs following a 35 point upset over the Houston Rockets on Saturday, and a chance tonight to sweep the series and head to the NBA Finals for the first time since 1975.
Formerly the Philadelphia Warriors from 1946 to 1962, and later the San Francisco Warriors from 1962 to 1971, the Golden State Warriors have played in Oakland’s currently named Oracle Arena since 1966 (except for one year when they played in San Jose while the Oracle Arena was being remodeled).
Starting next year, however, construction will begin on the Warriors’ new stadium in the Mission Bay area of San Francisco with completion scheduled for the 2018-2019 season. Although details are just emerging – and even the conceptual plans have changed after some said that the initial design looked like a toilet – here’s the 411 we know on the new 415 location of the Warriors:
- The cost of the new arena is estimated to be $1 billion.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Incorporate Sustainability in Building Design to Meet Green Construction Goals
September 25, 2018 —
Norma Lehman - Construction ExecutiveA few miles outside the city limits of Austin, Texas, construction work is expected to soon begin on the Austin Ridge Bible Church’s tri-level, 80,000-square-foot building. The building will house a 2,500-seat sanctuary, classrooms and other spaces where congregants can gather for prayer and fellowship.
When the project is completed, scheduled for the end of 2019, it will produce a worship place that will significantly reduce the building’s energy costs in the years ahead.
Reprinted courtesy of
Norma Lehman, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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California Statutes Authorizing Public-Private Partnership Contracting
February 01, 2022 —
Robert A. James & Shade Oladetimi - Gravel2Gavel Construction & Real Estate Law BlogPublic-private partnerships are often cited as a key pathway to restoring and enhancing the nation’s infrastructure. They can be challenging arrangements to structure. (As a result of the pandemic, they have even suffered the indignity of having their “PPP” acronym coopted by the
Paycheck Protection Program. With apologies to Small Business Administration practitioners, we use “PPP” in this article to refer to the infrastructure tool.)
One gating condition to setting up a PPP is identifying the authority for a public entity to use a contracting method that does not run afoul of the general requirements that (i) works of improvement be let to the lowest responsive bid by a responsible bidder and (ii) design services be awarded through a qualifications-based selection process. Integrated forms of project delivery that vest in a single concessionaire multiple design, construction, financing, operation, maintenance and entrepreneurial roles must find an exception to any applicable background rules.
Reprinted courtesy of
Robert A. James, Pillsbury and
Shade Oladetimi, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Ms. Oladetimi may be contacted at shade.oladetimi@pillsburylaw.com
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The OFCCP’s November 2019 Updated Technical Assistance Guide: What Every Federal Construction Contractor Should Know
March 23, 2020 —
Sarah K. Carpenter - Smith CurrieThe Department of Labor (“DOL”) Office of Federal Contract Compliance Programs (“OFCCP”) issued its 148-page Updated Construction Contractor Technical Assistance Guide (the “Guide”) on November 13, 2019. A complete copy of the Guide can be found
here, but the below provides a summary of what every Federal Construction Contractor should know regarding the OFCCP’s November 2019 update to its prior 2006 publication.
The DOL has identified the Guide as a “self-assessment tool” to assist contractors in meeting “their legal requirements and responsibilities for equal employment opportunity by preventing violations before they occur.” However, the Guide does not create or impose new requirements for Federal Construction Contractors. Instead, the Guide provides an overview of anti-discrimination and affirmative action requirements and obligations under existing laws and regulations, and suggests best practices and guidance. Specifically, the Guide provides:
- A concise summary of Federal Construction Contractors’ legal obligations under the three main laws enforced by the OFCCP: Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974;
- A detailed explanation of requirements for written Affirmative Action Plans;
- A clear schedule of Standard Federal Equal Employment Opportunity Construction Contract Specifications;
- A reorganized recap of the sixteen affirmative action steps Federal Construction Contractors are required to implement in good-faith; and
- A user-friendly roadmap of what to expect during an OFCCP audit, including a discussion of record keeping requirements.
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Sarah K. Carpenter, Smith CurrieMs. Carpenter may be contacted at
skcarpenter@smithcurrie.com
