Ninth Circuit Reverses Grant of Summary Judgment to Insurer For Fortuitous Loss
July 01, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe Ninth Circuit reversed the district court's issuance of summary judgment regarding coverage for damages when the insured's plant had to be shut down due to an accident. Ingenco Holdings, LLC v. Ace American Ins. Co., 2019 U.S. App. LEXIS 10946 (9th Cir. April 15, 2019).
Ingenco operated a gas purification plant which converted raw landfill gas into usable natural gas. The final step in the purification process involved the removal of excess nitrogen from the landfill gas. The gas was directed through adsorbent beads, to which nitrogen adhered, contained within pressure vessels.The beads could not withstand the direct pressure of the landfill gas inflow. which, if untreated, could grind the beads down into dust. To reduce the force of the gas flow on the beads, a "diffuser basket" was suspended from the top of each bead-filled pressure vessel. The diffuser basket acted as a shield that prevented the full force of the incoming landfill gas from striking the beads directly.
In 2010, metal brackets securing a diffiuser basket broke. This resulted in damage to other components and an eventual shutdown of the entire facility. The plant remained idle for several months as Ingenco investigated alternative nitrogen filtration options and undertook repairs.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Construction Defect Notice in the Mailbox? Respond Appropriately
August 04, 2011 —
Douglas Reiser, Builders Council BlogRecently, I have seen a rash of ignored construction defect notices. What is a construction defect notice? It’s a statutorily required notice, sent from a homeowner to a contractor, listing a number of defects found at their property. If you get one, don’t ignore it.
The Revised Code of Washington includes a number of provisions intended for residential construction disputes. Among them is the “Notice to Customer” requirement in RCW 18.27.114, which can preempt a contractor’s lien rights, and the “Notice of Construction Defects” found in RCW 64.50.020.
The Notice of Construction Defects is a standard notice mandated by RCW 64.50, a chapter in the Revised Code of Washington, intended to provide a pre-litigation resolution process for contractors and consumers. The chapter applies only to those losses “caused by a defect in the construction of a residence or in the substantial remodel of a residence.”(See “Action” RCW 64.50.010).
Unfortunately, many contractors will simply ignore these notices or tell the homeowner to make a warranty claim. But, the notice actually provides a contractor with a forty-five (45) day window to alleviate the dispute.
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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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Court Holds That One-Year SOL Applies to Disgorgement Claims Under B&P Section 7031
November 23, 2020 —
Garret Murai - California Construction Law BlogWe’ve talked before about Business and Professions Code section 7031 which courts have referred to as “harsh[ ],” “unjust[ ]” and even “draconian.” Under Section 7031, a contractor performing work requiring a contractor’s license, but who doesn’t: (1) is prohibited from suing to recover payment for work performed; and (2) is required to disgorge all money paid by the project owner for work performed. This is true even if the project owner knew that the contractor was unlicensed, the contractor was only unlicensed during part of the time it performed work requiring a license, and even if the work performed by the contractor was free of defects. In short, it’s the nuclear bomb of remedies against a contractor.
However, until now, no court has addressed when a project owner is permitted to raise a Business and Professions Code section 7031 claim against a contractor. In the next case, Eisenberg Village of the Los Angeles Jewish Home for the Aging v. Suffolk Construction Company, Inc., Case No B297247 (August 26, 2020), the 2nd District Court Appeal finally answers this question.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Assembly Bill 1701 Contemplates Broader Duty to Subcontractor’s Employees by General Contractor
August 17, 2017 —
Richard H. Glucksman, Esq. & Chelsea L. Zwart, Esq. – Chapman Glucksman Dean Roeb & BargerAB 1701 recently passed the Assembly and is pending in the Senate’s Labor and
Industrial Relations and Judiciary Committees. The Bill, if signed by the Governor, would
create a new section in the California Labor Code (Section 218.7) making “direct contractors” –
defined as a contractor “making or taking a contract in the state for the erection, construction,
alteration, or repair of a building, structure, or other private work” – liable for wages a
subcontractor or sub-subcontractor fails to pay to its employee for work included in the general
contractor’s contract with the project owner.
Under the new law, direct contractors would be liable for up to one year from the date of
completion of the work for unpaid wages, fringe benefits, health and welfare benefits, and
pension fund contributions, including interest and state tax payments owed to a subcontractor’s
employee. The employee, however, would not be able to recover penalties or liquidated
damages from the general contractor.
AB 1701 would give the employee, Labor Commissioner, or a joint labor-management
cooperation committee the right to enforce the direct contractor’s liability through a civil action.
It would also extend to third parties who are owed fringe or other benefit payments or
contributions on the employee’s behalf. Pursuant to the proposed language of the new statute, a
prevailing plaintiff in such an action would be entitled to their reasonable attorneys’ fees and
costs, including expert witness fees.
Although Labor Code § 218.7 would impose certain obligations on the subcontractor to
provide the direct contractor with relevant project and payroll records, the subcontractor’s failure
to comply with those obligations does not relieve the direct contractor from liability.
Impact
AB 1701’s apparent purpose is to protect employees, an undeniably important legislative
goal. However, if passed, the bill could greatly increase general contractors’ exposure when
subcontracting work and their cost of doing business. Especially because the new law would not
impact existing laws requiring a direct contractor to timely pay a subcontractor.
As a result, many coalitions against AB 1701 stress the halting effect this could have on
the construction industry as a whole, particularly private construction, which is not as heavily
regulated as public works.
CGDRB will continue to monitor this Bill and provide updates as developments occur.
Reprinted courtesy of
Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and
Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Ms. Zwart may be contacted at czwart@cgdrblaw.com
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You Need to be a Contractor for Workers’ Compensation Immunity to Apply
November 16, 2020 —
David Adelstein - Florida Construction Legal UpdatesIf you are a contractor, you are aware of workers’ compensation immunity when it comes to injuries on the site; and, if not, you should be. It is this workers’ compensation immunity (where workers compensation is the exclusive form of liability for an injured employee) which is why a contractor should generally always want to ensure its subcontractors have workers’ compensation insurance. Workers’ compensation immunity would protect a contractor that is being sued by a subcontractor’s employees that are injured on the job. For more information on workers’ compensation immunity, please check out this
article and this
article.
In this regard, Florida Statute s. 440.10(1)(b) provides:
In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.
(If the subcontractor does not have workers’ compensation insurance, the contractor is deemed the statutory employer and its workers’ compensation insurance would apply. Otherwise, the subcontractor’s workers compensation insurance would apply.)
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
New York Appellate Court Expands Policyholders’ Ability to Plead and Seek Consequential Damages
February 27, 2019 —
Michael S. Levine & Joshua S. Paster - Hunton Andrews KurthIn a huge win for policyholders, a New York appellate court, in D.K. Property, Inc. v National Union Fire Insurance Company of Pittsburgh, Pa., held that an insured need not provide a detailed factual description or explanation for why consequential damages are recoverable at the pleading stage. Rather, an insured’s complaint must only (i) specify the types of consequential damages claimed; and (ii) allege that those damages reasonably were contemplated by the parties prior to contracting.
Here, D.K. Property’s building was damaged as a result of construction on an adjoining building, and it timely filed a claim with National Union under a policy that covers “direct physical loss or damage to” the building. National Union neither paid the claim nor disclaimed coverage. Instead, according to D.K. Property, National Union made unreasonable and increasingly burdensome information demands over a three-year period, which it alleges was a “tactic” to make pursuing the claim so expensive that D.K. Property would abandon the claim. As a result of the delay, D.K. Property alleges the structural damage to its building has worsened.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth and
Joshua S. Paster, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Paster may be contacted at jpaster@HuntonAK.com
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Seeking Better Peer Reviews After the FIU Bridge Collapse
September 16, 2019 —
Engineering News-RecordOn the surface, it seemed like an outrageous defensive move following a painful tragedy. Louis Berger Group has refused requests from the Dept. of Labor to hand over emails with FIGG Bridge Engineers about its peer review of the ill-fated Florida International University pedestrian bridge. The structure collapsed on March 15, 2018, killing six people and injuring several others.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
When Construction Defects Appear, Don’t Choose Between Rebuilding and Building Your Case
October 11, 2021 —
Curtis Martin - ConsensusDocsWhen construction defects occur during construction, they intensify pressure from a schedule that may already be tight. Defects must be analyzed, confirmed, removed, and replaced and this can be time consuming. Or course, a construction schedule rarely anticipates defects, demolition, and rework and the owner will still expect the project to be completed on time; however, pressing forward with immediate remediation may have unintended consequences.
Before starting demolition, consider the evidentiary doctrine of spoliation. Spoilation occurs when a party destroys or unreasonably deprives another party of evidence and courts have imposed sanctions on a party that deprives an opponent of evidence. The doctrine has historically concerned documents, but its application has extended to electronic data, and courts also apply it to building conditions in construction defects cases. So, before tearing out or fixing defective work, consider the need to allow the opposing party to inspect, test and document it.
Imagine this scenario. The concrete in a slab placed by your subcontractor shows low compressive strength results in the 28-day cylinder tests. Tearing out the slab and replacing it will put you at least a month behind schedule and you don’t want to waste any time before removing and replacing it. Nevertheless, while you’re rebuilding the defective slab, be mindful that you are also building a case. If you plan to recover the costs you incur because of the defective concrete from the responsible parties, you should allow the subcontractor (and possibly the concrete supplier and other implicated parties) to examine, preserve, and/or test the work in question. Failure to do so may subject you to spoliation sanctions and jeopardize your right to recover damages.
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Curtis Martin, Peckar & AbramsonMr. Martin may be contacted at
cmartin@pecklaw.com
