Contract’s Definition of “Substantial Completion” Does Not Apply to Third Party for Purposes of SOL, Holds Court of Appeal
June 15, 2020 —
Garret Murai - California Construction Law BlogThose of you in the construction industry know that the two primary statutes of limitation are the 4-year year statute of limitations for patent defects and 10-year statute of limitations for latent defects. Both statutes begin to run on “substantial completion.”
In Hensel Phelps Construction Co. v. Superior Court of San Diego, Case No. D076264 (January 22, 2020), the 4th District Court of Appeal examined whether the term “substantial completion,” as used in Civil Code section 941, which applies to residential construction, can be defined by the parties’ contract and applied to third-parties.
The Hensel Phelps Case
Hensel Phelps Construction Co. entered into a prime construction contract with the owner and developer of a mixed-use project in San Diego. Hensel Phelps was the general contractor on the project. The project included a residential condominium tower which would eventually be managed and maintained by Smart Corner Owners Association. Smart Corners was not a party to the contract.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Can Your Industry Benefit From Metaverse Technology?
November 06, 2023 —
The Hartford Staff - The Hartford InsightsAs the
metaverse evolves, we know there are inherent
risks for businesses. But what industries can we expect to be impacted and what are the potential upsides and opportunities?
“We are observing how different industries are incorporating this technology to better their business strategy. For example, companies are utilizing augmented reality to assess the risk for large catastrophes, like wildfires. This technology could help prevent major disastrous events if integrated properly,” said Michael Kearney, vice president of emerging technologies and innovation at The Hartford.
As virtual and augmented reality technologies become more popular, there is an uptick in demand across industries to mitigate risk, increase company efficiency and build brand awareness. There are several industries that may be significantly impacted by the evolution of the metaverse, including:
- Technology: It is anticipated that there will be cutting edge technologies at the forefront, building the infrastructure for the metaverse.
- Gaming: This industry has potential to be the center of the metaverse with gamers developing a deeper connection to the digital world.
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The Hartford Staff, The Hartford Insights
How to Build Climate Change-Resilient Infrastructure
July 20, 2020 —
Aarni Heiskanen - AEC BusinessOhio University has released a guide titled, An Engineer’s Guide to Building Climate Change-Resilient Infrastructure. It was created for engineers, environmentalists, climate change communities, and construction organizations who are looking to share information about the importance of building cities that are able to fight growing climate threats.
Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi
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Million-Dollar U.S. Housing Loans Surge to Record Level
July 30, 2014 —
Alexis Leondis – BloombergBanks are handing out mortgages of as much as $10 million to the wealthy in record numbers while first-time homebuyers struggle to get loans.
Erin Gorman, managing director at Bank of New York Mellon Corp., said she’s fielding more requests for home loans of at least $2 million than ever before. She recently provided a mortgage of more than $6 million for a client’s purchase of a second property in Colorado.
“These high-net-worth borrowers do act differently than first-time buyers, who borrow because they have to,” said Gorman, who serves as the national mortgage sales director at Bank of New York Mellon’s wealth management group based in Boston. “High-net-worth borrowers don’t have to borrow. They choose to, so they’re very strategic about what, why, and when they borrow.”
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Alexis Leondis, BloombergMs. Leondis may be contacted at
aleondis@bloomberg.net
Texas Supreme Court Authorizes Exception to the "Eight-Corners" Rule
February 28, 2022 —
Jared De Jong, Nathan A. Cazier & Scott S. Thomas - Payne & FearsFor decades, an insurer’s duty to defend under Texas law was determined exclusively by reviewing the insurance contract and the allegations of the complaint under the “eight-corners rule.” All of this changed last week when, in a long-awaited decision, the Texas Supreme Court ruled that courts may consider extrinsic evidence to determine the existence of coverage in certain limited situations. Monroe Guar. Ins. Co. v. BITCO Gen. Ins. Corp., No. 21-0232, 2022 WL 413940 (Tex. Feb. 11, 2022).
In Monroe, a drilling contractor was sued for damages arising out of the allegedly botched drilling of an irrigation well. The underlying lawsuit alleged that negligent drilling caused damage to surrounding farmland. However, the complaint did not allege when the damage occurred. The contractor’s insurers, BITCO General Insurance Corporation (“Bitco”) and Monroe Guarantee Insurance Company (“Monroe”) disputed whether Monroe owed a duty to defend. Although Bitco agreed to provide a defense, Monroe refused, arguing that the property damage happened before its policy period. Bitco sued Monroe for contribution. In the trial court, the insurers stipulated that a drill bit became stuck before Monroe’s policy incepted, a fact that would have supported Monroe’s “prior damage” defense. On summary judgment, though, the trial court ruled this stipulated fact could not be considered under Texas’ eight-corners rule. Monroe appealed, and the Fifth Circuit, which had previously endorsed an exception to the eight-corners rule under Northfield Insurance Co. v. Loving Home Care, Inc., 363 F.3d 523, 531 (5th Cir. 2004), certified the question to the Texas Supreme Court.
Reprinted courtesy of
Jared De Jong, Payne & Fears,
Nathan A. Cazier, Payne & Fears and
Scott S. Thomas, Payne & Fears
Mr. Jong may be contacted at jdj@paynefears.com
Mr. Cazier may be contacted at nac@paynefears.com
Mr. Thomas may be contacted at sst@paynefears.com
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The California Legislature Return the Power Back to the People by Passing the California Consumer Privacy Act of 2018
January 02, 2019 —
Richard H. Glucksman, Esq., David A. Napper, Esq., & Lana Halavi – Chapman Glucksman Dean Roeb & BargerIntroduction
Data breaches and social media hacks are becoming increasingly common stories on the news cycle. Meanwhile, companies have made fortunes on unsuspecting individuals by selling information gathered on the user. Every internet user has wondered why a pop-up ad or banner on an unrelated website relates to something you purchased or searched for "that one time. The California legislature has decided to return some power back to the people with the California Consumer Privacy Act of 2018. California is the first state to introduce privacy protection for individuals personal data and could pave the way for other states to follow suit in the near future.
The California Consumer Privacy Act of 2018
On June 28, 2018, California Governor Jerry Brown signed into law the California Consumer Privacy Act of 2018 ("the Act"). The California Legislature eagerly passed the Act, which comes into effect on January 1, 2020, granting broad new privacy rights to "consumers" and enforcing requirements on the protection of their personal data allowing consumers the right to take back control of their personal information.
A "consumer" is defined as a "resident of California as defined by California's personal income tax regulations. "Personal information" pursuant to the Act is defined as "information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household." Personal information is generally recognized in California as information that can identify a specific individual. The Act also includes information that can be used to identify a household.
Provisions of the Act
Pursuant to the Act, consumers are given the right to know upon request if their personal information is disclosed, and to whom it is disclosed, the right to know what personal information has been collected about them by a business, the right to object to the sale of their personal information, the right to obtain data collected about them, the right to require businesses to obliterate their personal information, and the right to be given equal service and pricing from businesses, including equal prices and quality of goods or services. The Act forbids discrimination by businesses against consumers for exercising their privacy rights pursuant to the Act.
Businesses are, however, permitted to charge different prices or provide different quality of service to consumers if the difference is "reasonably related to the value provided to the consumer by the consumer’s data." Additionally, businesses must allow consumers to exercise their rights by providing to consumers toll-free telephone numbers and/or websites to request such information or privacy. If a consumer sends a verified request for information to a business, the business subsequently has 45 days to give the consumer the requested information from the preceding 12 months with no charge to the consumer.
Who Must Comply with the Act
The Act will apply to for-profit businesses that do business in the State of California, deal with personal information of California residents, and either·(1) have more than $25 million in annual gross revenues, or (2) receive or disclose more than 50,000 California residents' personal information, or(3) derive 50% or greater of California residents' annual revenues from selling their personal information.
Who is Exempted from Compliance with the Act
A for-profit company, a small company, and/or a company that does not derive large amounts of personal information and does not share a brand with an affiliate covered by the Act is exempted from complying with the Act. Additionally, a company is exempted from compliance with the Act "if every aspect of . . . commercial conduct takes place wholly outside of California," meaning: (1) the personal information was collected from the consumer while they were outside California, (2) no sale of their personal information took place in California, and (3) there was no sale of personal information that was collected while the consumer was in California.
Impact
According to 2017 estimates, California's population totaled approximately 39 million people. Clearly the Act will affect an incredibly large amount of people considering it concerns the most populous state in America. The California Consumer Privacy Act of 2018, which is being compared to the EU General Data Protection Regulation for its all-encompassing method and resilient privacy protections is also speculated to have an impact on businesses throughout the nation and around the world. While the costs will likely go up for companies to do business in California, the transparency and trust earned by business and gained by consumers in this new landscape could potential overcome the initial costs to provide these required services. Perhaps most importantly however, is if California consumers decide to take advantage of the new protections, they will no longer have to wonder what for-profit businesses are doing with their data.
Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys
Richard H. Glucksman,
David A. Napper and
Lana Halavi
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com
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Construction Picks Up Post-COVID and So Do Claims (and A Construction Lawyer Can Help)
September 12, 2022 —
Christopher G. Hill - Construction Law MusingsI’m a construction attorney and proud to be one. Over the past couple of years, my expertise (and that of my fellow members of the Virginia construction bar) has been challenged by everything from COVID-related shutdowns to supply chain issues to unanticipated price increases. With each of these obstacles placed in front of my clients and friends in the Virginia construction industry, I have gotten calls and questions as to how to best handle the various issues facing the construction world.
Needless to say, changes in price or material availability occurring between the date of a contract’s signing and the (likely delayed) start or completion of the contractual scope of work have caused some consternation and claims. Many of these claims did not come forward or reach my, or others, desk until after the world reopened post-COVID and construction began to speed up and money started to be owed. While one “easy” answer, particularly for those “upstream” in the payment chain, is “tough luck, you gave me a fixed price, signed a contract, and we expect you to honor it,” this may not be the best and most practical way to get the job done.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Protecting Expert Opinions: Lessons Regarding Attorney-Client Privilege and Expert Retention in Construction Litigation
August 19, 2024 —
David McLain - Higgins, Hopkins, McLain & Roswell, LLCThe Hill Hotel Owner LLC v. Hanover Insurance Company case has garnered attention due to its implications on the scope of attorney-client privilege in construction litigation. This blog post delves into the project’s background, the ensuing litigation, and the intricate work undertaken by attorneys and experts, highlighting the potential pitfalls associated with assumptions about privilege protections.
Background of the Project
Hill Hotel Owner LLC initiated a construction project in Boulder, Colorado, which included building a basement-level parking garage with an 18” thick concrete slab floor. The project utilized “void form,” a cardboard underlayment intended to create a gap between the foundation and the underlying soil. Unfortunately, the void form became wet and collapsed under the weight of the fresh concrete, causing considerable damage, and necessitating millions of dollars in remediation costs.
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David McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
