A Call to Washington: Online Permitting Saves Money and the Environment
October 28, 2011 —
Douglas Reiser, Builders Council BlogHere’s some good news for Oregon contractors: Electronic Permitting is here. That’s right, no more standing in line with folders full of printed submittals and waiting all day for your permit. The click of a few buttons and you are in business. Great news, right? Unfortunately, Oregon isn’t sharing that celebration with Washington. So I say - why not?
Last week, the State of Oregon released its new ePermitting online interface. The website allows contractors, owners and even local building departments to create an account, submit building plans and procure permits. With your account, you can track the progress of submissions, print documents and get posting information.
The state ran a limited test version in the City of Florence since 2009, working out the kinks. Perhaps the most impressive result of the new system is that Oregon tackled the task of coagulating a local process into one central location.
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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com
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Be Careful When Walking Off of a Construction Project
November 24, 2019 —
Christopher G. Hill - Construction Law MusingsI am truly grateful that my buddy Craig Martin (@craigmartin_jd) continues his great posts over at The Construction Contractor Advisor blog. He is always a good cure for writer’s block and once again this week he gave me some inspiration. In his most recent post, Craig discusses a recent Indiana case relating to the ever present issue of termination by a subcontractor for non-payment. In the Indiana case, the court looked at the payment terms and determined that the subcontractor was justified in walking from the project when it was not paid after 60 days per the contract.
This result was the correct, if surprising. Why do I say surprising? Because I am always reluctant to recommend that a subcontractor walk from a job for non payment if it is possible to continue. This is not so much for legal reasons (not paying a sub is a clear breach of contract by a general contractor) but practical ones. The practical effect of walking from the job is that the subcontractor is put on the defensive. Instead of arguing later that it performed but was not paid, that subcontractor is put in the position of arguing that the general contractor cannot collect its completion related and other damages because it breached first. This is a more intuitively difficult argument and one that is not as strong as the first.
Of course, all of this is contingent on the language in your contract (is there a “pay if paid” or language like that in the Indiana case?).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Homeowner’s Claims Defeated Because “Gravamen” of Complaint was Fraud, not Breach of Contract
September 29, 2021 —
Garret Murai - California Construction Law BlogBe careful what you wish for or, as in the next case, what you plead. In Vera v. REL-BC, LLC, Case Nos. A155807, A156823, and A159141 (June 30, 2021) 1st District Court of Appeal, a the buyer of a remodeled home who asserted breach of contract and fraud claims against a developer discovered that her claims, including her breach of written contract claim, was subject to a shorter 3 year statute of limitations because the “gravamen” of her complaint was fraud.
The REL-BC Case
Homeowner Adriana Vera purchased a remodeled home in Oakland, California from developers REL-BC, LLC and SNL Real Estate Solutions, LLC. The developers had purchased the home in July 2011, remodeled it, and sold it to Vera in November 2011.
As is typical in such transactions, the purchase agreement for the house required that the sellers disclose known material facts and defects affecting the property. In their disclosure, the sellers stated that they were not aware of any significant defects or malfunctions with respect to the property. The disclosure also stated that the sellers were not aware of any water intrusion issues with respect to the property.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
2021 Executive Insights: Leaders in Construction Law
August 16, 2021 —
Donald Berry - Construction ExecutiveGregory Cokinos, President and CEO, Cokinos | Young
First, experience in the construction industry is of primary importance and vital to successfully negotiating construction contracts and handling construction claims and disputes. Even a mildly complex construction dispute is more than most non-construction lawyers can properly handle. Issues concerning scheduling, productivity, change management and risk shifting (among many others) are complex and unique to construction and can be further complicated by the procedural and substantive law that differs from jurisdiction to jurisdiction.
Second, it is essential that your law firm has a culture of representing construction professionals. Understanding construction nomenclature and how construction projects are staffed, organized and documented saves time and money in an already expensive and time-consuming process.
You cannot overstate the advantage of shared resources within an established construction firm when evaluating and handling construction matters. A law firm that dedicates a significant portion of its practice to the construction industry is uniquely positioned to realize this advantage. Finally, as I tell our young lawyers, “success” only comes before “work” in the dictionary. Hard work is the key to successfully negotiating a contract or executing a litigation plan in this complex industry. So, look for a firm that is not afraid of working long days and weekends to achieve success.
Reprinted courtesy of
Donald Berry, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Purely “Compensatory” Debts Owed by Attorneys to Clients (Which Are Not Disciplinary or Punitive Fees Imposed by the State Bar) Are Dischargeable In Bankruptcy
April 28, 2016 —
Renata L. Hoddinott & David W. Evans – Haight Brown & Bonesteel LLPThe United States Court of Appeals for the Ninth Circuit in Scheer v. The State Bar of California (4/14/16 – Case no. 2:14-cv-04829-JFW) reversed the district court’s affirmance of the bankruptcy court’s decision that a suspended attorney’s debt was nondischargeable in bankruptcy under 11 U.S.C. § 523(a)(7).
In Scheer, the client (Clark) retained attorney Scheer to help modify his home mortgage loan. Clark paid Scheer $5,500 before any modification occurred. Clark then fired Scheer and sought return of the $5,500 under California’s mandatory attorney fee dispute arbitration program. An arbitrator concluded that, although Scheer performed competently, she violated California Civil Code §2944.7(a) by receiving advance fees for residential mortgage modification services. Although the arbitrator believed that Scheer’s violations were neither willful nor malicious, he concluded California law required a full refund of the improperly collected fees. Scheer made a few payments against the arbitration award but, claiming a lack of funds, failed to pay the outstanding balance.
Reprinted courtesy of
David W. Evans, Haight Brown & Bonesteel LLP and
Renata L. Hoddinott, Haight Brown & Bonesteel LLP
Ms. Hoddinott may be contacted at rhoddinott@hbblaw.com
Mr. Evans may be contacted at devans@hbblaw.com
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Tenants Who Negligently Cause Fires in Florida Beware: You May Be Liable to the Landlord’s Insurer
May 13, 2019 —
Rahul Gogineni - The Subrogation StrategistIn Zurich Am. Ins. Co. v. Puccini, LLC, 2019 Fla. App. LEXIS 1487, 44 Fla. L. Weekly D 383, Florida’s Third District Court of Appeals considered whether a landlord’s carrier, Zurich American Insurance Company (Zurich), was precluded from pursuing a subrogation claim against the landlord’s tenant, Puccini, LLC (Puccini), for fire-related damages. After the fire, Zurich paid its insured, Lincoln-Drexel Waserstein, Ltd. (Lincoln), over $2.1 million. Zurich then proceeded with an action against Puccini. Puccini filed for summary judgment arguing that it was an additional insured under the Zurich policy. The trial court agreed with Puccini and dismissed the action. Zurich then appealed the case to Florida’s Third District Court of Appeals. Finding that the lease contemplated both liability on the part of the tenant and indemnification in favor of the landlord, the court held that the tenant was not an implied co-insured under Zurich’s policy. Thus, the court allowed Zurich’s subrogation action.
The Sutton Doctrine Extension of the Anti-Subrogation Rule
In the United States, most states have adopted an anti-subrogation rule either by statute or through common law. Under an anti-subrogation rule, an insurer may not pursue its insured for monies paid to the insured. While some states limit their anti-subrogation rule to apply only to the named insured, other states have expanded the rule to include parties listed as additional insureds, and even, in some instances, implied insureds (those parties not specifically listed, but still considered an insured under the applicable policy).
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Rahul Gogineni, White and Williams LLPMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
AB5 Construction Exemption – A Checklist to Avoid Application of AB5’s Three-Part Test
February 18, 2020 —
Blake Dillion - Payne & Fears LLPConstruction companies have a unique opportunity to avoid the application of the restrictive new independent contractors law that took effect this year. This article provides a checklist that will help construction companies determine whether their relationships with subcontractors qualify for this exemption.
California’s Assembly Bill 5 (“AB5”), which went into effect Jan. 1, 2020, enacts into a statute last year’s California Supreme Court decision in
Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor.
Certain professions and industries are potentially exempt from this standard, including the construction industry. The ABC test does not apply to the relationship between a contractor and an individual performing work pursuant to a subcontractor in the construction industry, if certain criteria are met. In order for the “construction exemption” to apply, the contractor must demonstrate that all of the following criteria are satisfied.
- The subcontract is in writing;
- The subcontractor is licensed by the Contractors State License Board and the work is within the scope of that license;
- If the subcontractor is domiciled in a jurisdiction that requires the subcontractor to have a business license or business tax registration, the subcontractor has the required business license or business tax registration;
- The subcontractor maintains a business location that is separate from the business or work location of the contractor;
- The subcontractor has the authority to hire and to fire other persons to provide or assist in providing the services;
- The subcontractor assumes financial responsibility for errors or omissions in labor or services as evidenced by insurance, legally authorized indemnity obligations, performance bonds, or warranties relating to the labor or services being provided; and
- The subcontractor is customarily engaged in an independently established business of the same nature as that involved in the work performed.
The contractor must be able to establish each of the above criteria for the construction exemption to apply. If the contractor is successful, the long standing multi-factor test for determining independent contractor vs. employee status as described in
S.G. Borello & Sons, Inc. v. Dep’t of Industrial Relations, 48 Cal. 3d 341 (1989) will apply.
You should review your processes and procedures for engaging subcontractors to ensure that you can satisfy the above criteria. If you have questions about the application of AB5, the construction exemption, or the
Borello factors, you should speak with an attorney.
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Blake A. Dillion, Payne & FearsMr. Dillion may be contacted at
bad@paynefears.com
Congratulations to BWB&O’s 2023 Super Lawyers Rising Stars!
June 26, 2023 —
Bremer Whyte Brown & O'Meara LLPBWB&O is excited to announce Partner
Courtney Serrato and Associates
Andrew Arakelian,
Pamchal Deylami, and
Brian Taylor have been selected in the 2023 Southern California Super Lawyers list as Rising Stars for their work in Family Law and Civil Litigation. To read Super Lawyers’ digital publication, please click
here.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The objective of Super Lawyers’ patented multiphase selection process is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Please join us in congratulating Courtney, Andrew, Pamchal, and Brian on achieving this level of recognition!
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Bremer Whyte Brown & O'Meara LLP
