Insurer's Motion to Dismiss Complaint for Failure to Cover Collapse Fails
April 13, 2017 —
Tred R. Eyerly – Insurance Law HawaiiThe insurer was unsuccessful in moving to dismiss the property owner's complaint that was filed after coverage for collapse of basement walls was denied. Cyr v. CCAA Fire & Cas. Ins. Co., 2017 U.S. Dist. LEXIS 39387 (D. Conn. March 20, 2017).
The Cyrs began observing cracking patterns in the basement wall of their home. A structural engineer inspected the wall and determined that the cracks were due to a chemical reaction in the concrete that would ultimately render the walls unstable. The Cyrs made a claim with CCAA under their homeowner's policy. The insureds contended that the progressive deterioration of the concrete in the basement walls was a collapse under the policy.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
One Shot to Get It Right: Navigating the COVID-19 Vaccine in the Workplace
January 18, 2021 —
Natale DiNatale, Stephen W. Aronson, Britt-Marie K. Cole-Johnson, Emily A. Zaklukiewicz, Kayla N. West & Abby M. Warren - Construction ExecutiveThe Food and Drug Administration has granted Emergency Use Authorization for Pfizer and Moderna’s COVID-19 vaccines. As COVID-19 cases continue to rise, employers across all industries may be considering whether to adopt a vaccination policy requiring vaccination as a condition of working and/or accessing the workplace or jobsite. The FDA’s recent authorization of the COVID-19 vaccine raises several legal and practical issues that employers may wish to consider as they prepare for widespread distribution and availability of the vaccine in 2021.
Mandating the COVID-19 Vaccine in the Workplace
The Equal Employment Opportunity Commission recently issued guidance suggesting that employers may mandate that employees receive the COVID-19 vaccination, subject to certain limitations. The EEOC has taken the position that administration of the COVID-19 vaccine does not implicate the Americans with Disabilities Act (ADA) because administration of the vaccine is not a medical examination. Under the EEOC’s guidance, employers, regardless of the industry, may require that employees receive the COVID-19 vaccine without having to justify that the mandate is job related and consistent with business necessity. Beyond that, construction employers should be aware of numerous issues and risks associated with mandatory vaccine policies.
Reprinted courtesy of Natale DiNatale, Stephen W. Aronson, Britt-Marie K. Cole-Johnson, Emily A. Zaklukiewicz, Kayla N. West & Abby M. Warren of
Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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You’ve Been Suspended – Were You Ready?
April 20, 2020 —
Curtis W. Martin, Patrick J. Greene, Jr. & Levi W. Barrett - Peckar & Abramson“Effective tomorrow … the City is suspending all regular activity at construction sites in Boston.” This was just one of the surprises that greeted contractors last week. Contractors and owners with projects across the country are scrambling to comply with mandated governmental suspensions. Project participants should begin contingency planning for possible project shutdowns.
Reacting to Suspension
Your legal rights and remedies will be largely determined by your contract and the laws applicable to it. But some basic principles will be applicable depending on the source of the suspension.
Suspension by the Owner: An owner work suspension suggests review of the contract’s suspension of work clause. Federal contractors would look to the FAR Suspension of Work clause, FAR 52.242-14, but that is applicable if the suspension is by the Contracting Officer; the US would argue that a systemic suspension was a sovereign act and outside the FAR clause.
Contractors for private work and state or municipal work may have contractual suspension of work clauses. At least some suspension clauses provide relief for time and money.
Reprinted courtesy of Peckar & Abramson attorneys
Curtis W. Martin,
Patrick J. Greene and
Levi W. Barrett
Mr. Martin may be contacted at cmartin@pecklaw.com
Mr. Greene may be contacted at pgreene@pecklaw.com
Mr. Barrett may be contacted at lbarrett@pecklaw.com
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How to Build a Water-Smart City
August 23, 2021 —
Chris Malloy - BloombergCities across time have stretched to secure water. The Romans built aqueducts, the Mayans constructed underground storage chambers, and Hohokam farmers dug more than 500 miles of canals in what is now the U.S. Southwest.
Today’s cities use portfolios of technologies to conserve supply — everything from 60-story dams and chemicals to centrifugal pumps and special toilets. And yet, the cities of tomorrow will have to do more.
A recent United Nations report on drought says climate change is increasing the frequency, severity and duration of droughts, which contribute to food insecurity, poverty and inequality. The report also asserts that “drought has been the single longest-term physical trigger of political change in 5,000 years of recorded human history.” It calls for urgent action and a transformation in governance to manage modern drought risk more effectively.
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Chris Malloy, Bloomberg
Labor Development Impacting Developers, Contractors, and Landowners
June 25, 2019 —
John Bolesta & Keahn Morris - Sheppard Mullin Construction & Infrastructure Law BlogIt is unlawful for unions to secondarily picket construction sites or to coercively enmesh neutral parties in the disputes that a union may have with another employer. This area of the law is governed by the National Labor Relations Act (“NLRA”), the federal law that regulates union-management relations and the National Labor Relations Board (“NLRB”), the federal administrative agency that is tasked with enforcing the NLRA. But NLRB decisions issued during the Obama administration have allowed a union to secondarily demonstrate at job sites and to publicize their beefs over the use of non-union contractors there, provided the union does not actually “picket” the site. In those decisions, the NLRB narrowed its definition of unlawful “picketing,” thereby, limiting the scope of unlawful activity prohibited by law. Included in such permissible nonpicketing secondary activity is the use of stationary banners or signs and the use of inflatable effigies, typically blow-up rats or cats, designed to capture the public’s attention at an offending employer’s job site or facilities.
A recently released NLRB advice memo, however, signals the likely reversal of those earlier decisions and that contractors and owners may now be able to stop such harassing union job site tactics simply by filing a secondary boycott unfair labor practice change with the NLRB. The 18 page memo, dated December 20, 2018 (and released to the public on May 14, 2019), directs the NLRB’s Region 13 to issue a complaint against the Electrician’s Union in a dispute coming out of Chicago where the union erected a large, inflatable effigy, a cat clutching a construction worker by the neck, and posted a large stationary banner proclaiming its dispute to be with the job’s general contractor over the use of a non-union electrical sub at the job site’s entrance. Though not an official Board decision, the memo suggests the NLRB General Counsel’s (GC) belief that the earlier Obama era decisions may have been wrongly decided and should be reconsidered by the NLRB on the theories that the Union’s nonpicketing conduct was tantamount to unlawful secondary picketing, that it constituted “signal” picketing that unlawfully induced or encouraged the employees of others to cease working with the subs or that it constituted unlawful coercion.
Reprinted courtesy of
John Bolesta, Sheppard Mullin and
Keahn Morris, Sheppard Mullin
Mr. Bolesta may be contacted at jbolesta@sheppardmullin.com
Mr. Morris may be contacted at kmorris@sheppardmullin.com
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Guarantor’s Liability on Partially Secured Debts – The Impacts of Pay Down Provisions in Serpanok Construction Inc. v. Point Ruston, LLC et al.
October 24, 2021 —
Margarita Kutsin - Ahlers Cressman & SleightIn
Serpanok Construction, Inc. v. Point Ruston, LLC, Division Two of the Washington Court of Appeals decided an issue of first impression in Washington—whether a guarantor of a partially secured debt remains liable until the last dollar of the entire debt is paid off. After examining cases from other jurisdictions, the court held that that a guarantor is liable until the underlying debt is paid in full unless the agreement contains an express pay down provision. A pay down provision sets forth the guarantor’s right to reduce its obligation to the extent of any payment toward the debt, and it establishes that the guaranty applies only until an amount equivalent to the guaranteed amount is paid off.
The Serpanok decision addressed several other issues, but the published portion of this part-published case focused on whether an entity involved in a real estate development, Point Ruston LLC, was discharged from its guaranty obligation following a foreclosure sale where the proceeds did not cover the entire debt owed to a subcontractor. Point Ruston LLC, Point Ruston Phase II LLC (“Phase II”), and Century Condominiums (“Century”) were affiliated entities (collectively “Point Ruston parties”) that constructed retail and residential structures on a site in Point Ruston. Serpanok Construction Inc. (“Serpanok”) entered into subcontract agreements with Phase II and Century to perform concrete and steel work on a parking garage and movie theater for the project. Point Ruston LLC was not a party to either subcontract.
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Margarita Kutsin, Ahlers Cressman & SleightMs. Kutsin may be contacted at
margarita.kutsin@acslawyers.com
Boilerplate Contract Language on Permits could cause Problems for Contractors
March 19, 2014 —
Beverley BevenFlorez-CDJ STAFFCraig Martin on his blog Construction Contractor Advisor discusses the potential problems for a contractor that a “boilerplate contract” could cause: “A recent case revealed the problems a contractor had with permits when the contractor’s estimate contemplated an easy permitting process and compliance, but in actuality it was much, much more difficult.”
Martin cites the case Bell/Heery v. United States, where a contractor discovered that the permit process would be much more time-consuming and expensive than originally planned. When Bell/Heery asked for additional funds to cover the additional costs, the “contracting officer rejected the request, finding that Bell/Heery had assumed the risk of the permitting process and it was liable for any costs associated with the permitting process and construction methods required by the permitting process.”
“Bell/Heery appealed to the Court of Claims,” but lost the battle. The contractor had to absorb $7 million in costs to comply with the required permits.
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No Friday Night Lights at $60 Million Texas Stadium: Muni Credit
March 26, 2014 —
Darrell Preston and Aaron Kuriloff – BloombergPervasive cracking has shuttered the $60 million home of a high-school football championship team in Texas after less than two years. Investors in the tax-free bonds that paid for the stadium are unscathed.
Taxpayers in Allen Independent School District north of Dallas and the $29 billion Texas Permanent School Fund, a state bond insurer, are responsible for $119 million of debt that paid for the venue and other facilities, leading officials to find a new site for graduation and possibly games after closing 18,000-seat Eagle Stadium last month.
The development suggests the fund, created in 1854 to help pay for education, shouldn’t be used for stadiums, said Colby Harlow, president of hedge fund Harlow Capital Management. The Permanent Fund has top credit ratings and secures about $55 billion of bonds, according to the Texas Education Agency. The pool has at times reached the limit of debt it can back, preventing districts from accessing it. The guarantee is still a boon to bondholders.
Mr. Merelman may be contacted at smerelman@bloomberg.net; Mr. Sillup may be contacted at msillup@bloomberg.net
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Darrell Preston and Aaron Kuriloff, Bloomberg
