NY Pay-to-Play Charges Dropped Against LPCiminelli Executive As Another Pleads Guilty
June 06, 2018 —
Mary B. Powers & Debra K. Rubin - Engineerings News-RecordThe former president of New York contractor LPCiminelli—the firm that has been at the center of an alleged pay-to-play scheme playing out since 2016 when he and two other executives were indicted—got a reprieve as federal prosecutors said they were dropping all charges against him, including wire fraud, conspiracy to commit wire fraud and making false statements to federal agents, according to a June 1 court filing.
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Mary B. Powers, ENR and
Debra K. Rubin, ENR
Ms. Rubin may be contacted at rubind@enr.com
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What is a Subordination Agreement?
May 06, 2019 —
Bremer Whyte Brown & O'Meara LLPPut simply, a subordination agreement is a legal agreement which establishes one debt as ranking behind another debt in the priority for collecting repayment from a debtor. It is an arrangement that alters the lien position. Without a subordination clause, loans take chronological priority which means that a deed of trust recorded first will be considered senior to all deeds of trusts recorded after. As such, the oldest loan becomes the primary loan, with first call on any proceeds from a sale of a property. However, a subordination agreement acknowledges that one party’s claim or interest is inferior to that of another party in the event that the borrowing entity liquidates its assets. Further, shareholders are subordinate to all creditors.
The junior debt is referred to as a “subordinated debt”, and the debt which has a higher claim to any assets is the senior debt. Often, the borrower does not have enough funds to pay all debts, and lower priority debts may receive little or no repayment. For example, if a business has $400,000 in senior debt, $100,000 in subordinated debt, and a total asset value of $420,000, upon liquidation of the company, only the senior debtholder will be paid in full. The remaining $20,000 will be distributed among the subordinated debtholders. Subordinated debts are, therefore, riskier and lenders will require a higher interest rate as compensation.
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Narrow Promissory Estoppel Exception to Create Insurance Coverage
August 07, 2022 —
David Adelstein - Florida Construction Legal UpdatesThere is an affirmative claim known as promissory estoppel. (Whereas equitable estoppel is used an affirmative defense, promissory estoppel is used as an affirmative claim.)
To prove promissory estoppel, a plaintiff must plead and prove the following three elements: “(1) a representation as to a material fact that is contrary to a later-asserted position; (2) a reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon.” Romo v. Amedex Ins. Co., 930 So.2d 643, 650 (Fla. 3d DCA 2006) (citation and quotation omitted). Stated differently: “A party will be estopped from denying liability under the principle of promissory estoppel when the party makes ‘[a] promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance…[and] injustice can be avoided only by enforcement of the promise.’” Criterion Leasing Group v. Gulf Coast Plastering & Drywall, 582 So.2d 799, 800 (Fla. 1st DCA 1991).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Florida Adopts Daubert Standard for Expert Testimony
October 07, 2019 —
Michael L. DeBona - The Subrogation StrategistSeven months ago, the Florida Supreme Court declined to adopt Daubert as the standard for admitting expert testimony in Florida state courts. In DeLisle v. Crane Co., 258 So. 3d 1219 (2018), the court reaffirmed that “Frye, not Daubert, is the appropriate test in Florida.” On May 23, 2019, however, Florida’s high court did an about-face. In In Re: Amendment to the Florida Evidence Code, No. SC19-107, the Florida Supreme Court overruled its decision in DeLisle and declared that Florida will now apply the Daubert standard to determine whether scientific evidence is admissible.
The Daubert standard comes from the case of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), which held that the longstanding Frye test[1] for admitting expert testimony was superseded by Rule 702 of the Federal Rules of Evidence. Daubert instructed that federal judges should act as “gatekeepers” to ensure expert testimony is rooted in scientifically valid principles and that those principles are properly applied to the facts at issue. In determining whether scientific evidence should be admitted, Daubert sets forth several factors to consider: the testability of the theory or technique; the peer review and publication of the theory or technique; the error rate for the technique; the standards controlling the technique’s operation; and the general acceptance of the theory or technique.[2] The Daubert standard is generally considered a more onerous test than Frye, precluding expert testimony that might otherwise go to the jury under Frye.[3] Whereas Frye is a single factor test that applies only to new or novel science, Daubert is a multifactor test that applies to all expert testimony.
Since Daubert, a growing number of states have moved away from the Frye test in favor of the Daubert standard; it is now followed by a majority of jurisdictions in the country. In 2013, the Florida State legislature attempted to move Florida in this direction by amending the Florida Evidence Code to codify the Daubert standard. But because the Florida Supreme Court is vested with the power to make procedural rules and it was unclear whether the Daubert standard was a procedural or substantive rule, it was uncertain whether the 2013 Daubert amendments were controlling law. Then in 2017, in In Re: Amendment to the Florida Evidence Code, No. SC16-181, the Florida Supreme Court expressly declined adopting the Daubert amendments to the extent they were procedural. This decision signaled that, if faced with the Daubert standard on appeal from a litigated case, the Florida Supreme Court would reaffirm that Frye – not Daubert – controlled the admissibility of expert testimony in Florida state courts.
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Michael L. DeBona, White and Williams LLPMr. DeBona may be contacted at
debonam@whiteandwilliams.com
Tall Mass Timber Buildings Now Possible Under 2021 IBC Code Changes
February 03, 2020 —
Kenneth Bland - Construction ExecutiveThe International Code Council (ICC) has approved 17 changes to the 2021 editions of the International Building Code (IBC) and International Fire Code, allowing for mass timber buildings up to 18 stories. With the addition of three new mass timber construction types (Type IV-A, IV-B, and IV-C), this is the first time in the history of the modern building code that significantly new construction types have been added to the code.
Building Materials
The primary building material that makes tall mass timber (TMT) buildings possible is cross-laminated timber (CLT). CLT is manufactured from dimension lumber (nominal 2x lumber) laid side-by-side or mass plywood panels of a specified width. Laminations of lumber are typically laid perpendicular to each other to form panels of various thicknesses that are bonded together using heat resistant adhesives that cure in large hydraulic presses. CLT commonly consists of an odd number of laminations.
These solid wood panels can be anywhere from 6 inches to 20 inches nominal thickness and 60 feet long. Typical CLT panels will be 6 inches to 14 inches nominal thickness. The panels are fabricated off site, transported onto the construction site and assembled in a manner that is efficient and remarkably fast. CLT panels can be used as floor, wall, or roof building elements supported by glued-laminated beams and columns.
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Kenneth Bland, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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California Court of Appeal Finds Alleged Inadequate Defense by Insurer-Appointed Defense Counsel Does Not Trigger a Right to Independent Counsel
January 11, 2022 —
Robert Dennison - Traub LiebermanThe California Second District Court of Appeal had occasion to examine an insurer’s duty to provide independent counsel (“Cumis counsel”) to its insured in a declaratory relief action entitled Nede Management, Inc. v. Aspen American Insurance Company. The action arose from a fire on a property covered by an insurance policy issued by Aspen American Ins. Co (“Aspen”). Aspen’s insureds were sued for wrongful death and negligence by tenants and squatters allegedly injured by the fire.
Aspen defended three individual members of the family who owned the property and the family business, Nede Management, Inc. (“Nede”), which managed the property. The defense was subject to reservations of rights on the lack of an obligation to pay any judgment in excess of the $1 million policy limits and no coverage for punitive damages. Aspen appointed defense counsel to defend its insureds. The insureds sought independent counsel based on the assertion that defense counsel appointed by the insurer defended the action inadequately, failed to communicate an initial settlement demand within policy limits and failed to fully investigate the case. Aspen did provide Cumis counsel to Nede for a period but terminated the arrangement after revoking its reservation of rights to that entity. The underlying case eventually settled at no cost to the insureds.
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Robert Dennison, Traub LiebermanMr. Dennison may be contacted at
rdennison@tlsslaw.com
Newmeyer & Dillion Ranked Fourth Among Medium Sized Companies in 2016 OCBJ Best Places to Work List
September 01, 2016 —
Newmeyer & Dillion LLPProminent business and real estate law firm
Newmeyer & Dillion LLP is proud to announce that it has been ranked fourth among medium sized companies in the
Best Places to Work in Orange County – 2016 Survey. The firm was the only law firm to make the top 25 of its category. This marks the fifth consecutive year Newmeyer & Dillion LLP has made the list showing that its deep commitment to professionalism and client service is shared and appreciated by its workforce.
Jeff Dennis, Newmeyer & Dillion’s Managing Partner, believes the award is representative of the team effort and atmosphere that is fostered at the firm. “We believe that client satisfaction goes hand-in-hand with work-place satisfaction. By combining an environment in which individual effort is recognized, with a team approach in which everyone is respected, we have achieved the perfect balance for success. We are honored that our employees appreciate our efforts in this regard.”
Created in 2009, the awards program evaluates entries based on workplace policies, practices, demographics and also collects employee surveys to measure overall satisfaction and experience. The Best Companies Group worked alongside the Orange County Business Journal in collecting and analyzing the data and is a partner in the project.
Newmeyer & Dillion has been honored in the July 25 issue of the Orange County Business Journal. For more information on the survey process and to see other award recipients contact Jackie Miller at 877-455-2159 or visit www.BestPlacestoWorkOC.com.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Extreme Weather Events Show Why the Construction Supply Chain Needs a Risk-Management Transformation
July 24, 2023 —
Brad Barth - Construction ExecutiveA perfect storm of recent extreme weather events has exposed the fragility of North America’s construction supply chains amid an increasingly fluctuating, fast-changing risk landscape. Supply chains that were already reeling from resurgent demand for raw materials coming out of the pandemic have been further disrupted by major storms such as recent tornados in Arkansas and Mississippi. Such events can have a ripple effect across many distinct supply lines as exemplified when the 2021 Texas freeze caused railroad closures and knocked out both petrochemical and semiconductor plants, causing shortages that affected construction and many other industries.
The wide-ranging reverberations from these events demonstrate how stakeholders across all stages of capital projects increasingly share common vulnerabilities. Crucially, the way in which disruption from extreme weather events has caused project delays and cost overruns shows how time, cost and scope are increasingly interlinked and equally vulnerable to systemic risks.
Traditional project-management methods where risks are not collectively managed and mitigated by all stakeholders are becoming increasingly inadequate, as risks to cost, time and scope are often considered in isolation. The domino effect of supply-chain disruption across capital projects similarly shows the inadequacy of project-management models where suppliers are not afforded a key stake in the project (or sometimes even a seat at the planning table). This traditional model cannot adapt to sudden, systemic risks that disrupt multiple suppliers and ripple out across all stakeholders, deliverables and project-management metrics.
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Brad Barth, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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