The (Jurisdictional) Rebranding of The CDA’s Sum Certain Requirement
April 15, 2024 —
Jordan A. Hutcheson and Stephanie Rolfsness - Watt TiederThe Contract Disputes Act (the “CDA”), 41 U.S.C.A. §§ 7101 et seq., which has provided the statutory framework for resolution of most contract disputes between the federal government and its contractors since 1978, has recently been the subject of changes in judicial interpretation, despite no corresponding statutory changes. The CDA’s implementing provisions in the Federal Acquisition Regulations (FAR), require that contractors submit a claim to the government in the form of written demand to a contracting officer requesting a final decision and seeking the payment of money in a sum certain prior to pursuing resolution via board or court. However, with respect to the sum certain requirement, the United States Court of Appeals for the Federal Circuit issued an opinion in late 2023 determining that this requirement “should not be given the jurisdictional brand” as it has categorically received in the past. Rather, the court concluded that the sum certain requirement is merely an element of a claim for relief under the CDA that a contractor must satisfy to recover. This rebranding does not debase the sum certain requirement, but it does indicate a renewed focus on what constitutes “jurisdictional” in government contracts litigation.
Reprinted courtesy of
Jordan A. Hutcheson, Watt Tieder and
Stephanie Rolfsness, Watt Tieder
Ms. Hutcheson may be contacted at jhutcheson@watttieder.com
Ms. Rolfsness may be contacted at srolfsness@watttieder.com
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AB 685 and COVID-19 Workplace Exposure: New California Notice and Reporting Requirements of COVID Exposure Starting January 1, 2021
February 01, 2021 —
Sewar K. Sunnaa & Nathan A. Cohen - Peckar & Abramson, P.C.SUMMARY
Effective January 1, 2021, a new California law requires employers to notify employees about possible or known exposure to COVID-19 at the workplace. The law requires actual notification to employees within one day.
In addition, the law requires notifications to local public health authorities of a COVID-19 outbreak. The law also gives Cal/OSHA a new emergency police power to issue Orders Prohibiting Use (“OPU”), permitting Cal/OSHA to close workplaces that constitute an imminent hazard to employees due to COVID-19.
ANALYSIS AND GUIDANCE
On January 1, 2021, a new California law took effect, which will enforce stringent new mandatory protocols governing notification of employees of COVID-19 exposures in the workplace. Until now, federal agencies such as the Occupational Safety and Health Administration (“OSHA”) and state agencies such as the California Division of Occupational Safety and Health Administration (“Cal/OSHA”) have released guidance to help employers navigate employee training, workplace surveillance and temperature-taking, among many other issues, that have arisen during the COVID-19 pandemic. Beginning January 1st, the new law places mandatory notice requirements of COVID-19 contact on all public and private employers under Labor Code Section 6409.6, with two exceptions: (1) health facilities, as defined in Section 1250 of the Health and Safety Code and (2) employees whose regular duties include COVID-19 testing or screening, or who provide patient care to individuals who are known or suspected to have COVID-19.
Reprinted courtesy of
Sewar K. Sunnaa, Peckar & Abramson, P.C. and
Nathan A. Cohen, Peckar & Abramson, P.C.
Ms. Sunnaa may be contacted at ssunnaa@pecklaw.com
Mr. Cohen may be contacted at ncohen@pecklaw.com
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New York Considering Legislation That Would Create Statute of Repose For Construction
April 05, 2021 —
Richard W. Brown & Anna M. Perry - Saxe Doernberger & Vita, P.C.New York is considering legislation, which, if enacted, would create a statute of repose limiting the number of years after completion of a construction project that legal action may be asserted against a contractor. New York currently remains the only state without a statute of repose for construction. Earlier this year, however, the New York State Legislature introduced Bills S04127 and A01706 (the “Bill”) , which would impose a 10-year period of repose in which an injured party may bring suit against a design professional and/or a contractor for bodily injury or property damage resulting from a construction defect.
Currently, contractors and design professionals have exposure to bodily injury and property damage claims resulting from construction defects for an unlimited number of years after completion of a project. If enacted, the Bill would limit the period of repose to 10 years after the project is completed, which is deemed to occur upon substantial completion or acceptance by the owner. An additional 1-year grace period is provided for an injured party to file suit where bodily injury or property damage occurs in the tenth year after completion. The Bill notably limits the applicability of the 10-year statute of repose to third-party actions and thereby preserves the existing 3-year and 6-year statutes of limitation applicable to actions asserted by an owner or client for professional malpractice and breach of contract, respectively.
Reprinted courtesy of
Richard W. Brown, Saxe Doernberger & Vita, P.C. and
Anna M. Perry, Saxe Doernberger & Vita, P.C.
Mr. Brown may be contacted at RBrown@sdvlaw.com
Ms. Perry may be contacted at APerry@sdvlaw.com
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New York State Trial Court Addresses “Trigger of Coverage” for Asbestos Claims and Other Coverage Issues
January 21, 2019 —
Paul Briganti - White and WilliamsOn November 21, 2018, the New York Supreme Court, Onondaga County, issued a summary-judgment ruling on a number of coverage issues arising from asbestos-related bodily injury claims against plaintiffs Carrier Corporation (Carrier) and Elliott Company (Elliott). See Carrier Corp., et al. v. Travelers Indem. Co., et al., Index No. 2005-EG-7032 (N.Y. Sup. Ct. Nov. 21, 2018).
First, the court held that under New York’s “injury in fact trigger of coverage,” injury occurs from the first date of exposure to asbestos through death or the filing of suit. The court primarily relied on: (1) New York federal court decisions and the Delaware Supreme Court’s decision in In re Viking Pump, Inc., 148 A.3d 633 (Del. 2016) holding that injury continues from first exposure through death or the assertion of a claim; and (2) medical and scientific evidence that the plaintiffs had submitted in support of their motion. The court specifically declined to follow Continental Cas. v. Wausau, 60 A.D.3d 128 (1st Dep’t 2008) (Keasbey), in which the New York Appellate Division found a question of fact whether injury occurs from exposure to asbestos through manifestation and that summary judgment was therefore inappropriate. The Carrier court stated that Keasbey was distinguishable because it “involved operations coverage, a non-product claim, and thus the [Keasbey] Court required a more stringent proof of injury in fact than is necessary here, in a products case.” Carrier, op. at 8. The Carrier court was also dismissive of affidavits offered by the defendant-insurer’s medical experts, finding that the affidavits did not create an issue of fact. See Op. at 2-9.
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Paul Briganti, White and WilliamsMr. Briganti may be contacted at
brigantip@whiteandwilliams.com
What You Should Know About Liquidated Damages and Liability Caps for Delay and Performance Liquidated Damages
May 06, 2024 —
Chris Cazenave - ConsensusDocsLiquidated damage clauses are omnipresent in today’s construction contracts—often considered in early negotiations to provide a degree of certainty and limit financial liability.
There are two principal types of LDs appearing in construction contracts—(i.) damages for delay when a contractor fails to deliver a project by a certain milestone; and (ii.) performance damages when a contractor fails to meet specific performance requirements. Differentiating between LDs for delay and LDs for performance—especially when both LD types are combined in the same contract—is key to risk awareness and allocation during contract negotiations and throughout performance.
This article briefly outlines what you should know about LDs for delay and LDs for failing to meet certain performance requirements. The article also covers how contractors can allocate and cap risks based on risks each party can either manage, insure, or otherwise limit.
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Chris Cazenave, Jones Walker LLPMr. Cazenave may be contacted at
ccazenave@joneswalker.com
Nevada Supreme Court Rejects Class Action Status, Reducing Homes from 1000 to 71
July 02, 2014 —
Beverley BevenFlorez-CDJ STAFFThe Las Vegas Review-Journal reported that the “Nevada Supreme Court has rejected a request for class action status for claims of damaged stucco from faulty construction by Del Webb Communities involving nearly 1,000 Sun City Summerlin residents,” however, “the court upheld the award of damages to 71 homeowners following a jury trial in Clark County District Court in 2008.”
The case began in 2003, and the Las Vegas Review-Journal referred to it as “one of the largest construction-defect cases in Nevada history.” But District Judge Allan Earl denied class action lawsuit in 2006. “Attorneys were seeking $70 million for the homeowners.” In 2008, another court “determined that only 71 homeowners merited compensation totaling $4 million for the stucco issues.”
According to the Las Vegas Review-Journal, “[h]omeowners alleged that Del Webb failed to install metal screeds that would protect homes from water damage, and as a result, the homes suffered from cracked stucco, mold and weakened walls.”
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Civil RICO Case Against Johnny Doc Is Challenging
October 20, 2016 —
Wally Zimolong – Supplemental ConditionsNews that a non-union contractor had filed a Lawsuit against IBEW Local 98 and its leader, John Dougherty, made headlines this week. While making fodder for local media, the plaintiffs must bound several legal hurdles before IBEW Local 98 and “Johnny Doc” face any threat of liability.
Background on RICO
The lawsuit was filed under a set of laws known as the Racketeer Influenced and Corrupt Organizations Act (RICO). I have written about RICO’s impact on labor unions on this blog before and predicted that recent federal court cases made RICO claims against more viable. RICO is a Nixon era set of laws that were originally passed to combat organized crime. There is both a civil and criminal component to RICO. (Interestingly, the RICO act remained relatively dormant until then U.S. Attorney Rudy Giuliani began effectively using it to prosecute the mob in the 1980’s.) Although recent decisions have made RICO claims against unions more viable, any RICO claim is still challenging. Indeed, some courts require a plaintiff in civil RICO cases to file a separate RICO case statement detailing its allegations. RICO claims are powerful. Some have called RICO claims a “thermonuclear” litigation device because the law permits the award of trebel (triple) damages and attorneys fees.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Kentucky Supreme Court Creates New “Goldilocks Zone” to Limit Opinions of Biomechanical Experts
July 24, 2023 —
Aimee E. Muller - Lewis BrisboisLexington, Ky. (June 26, 2023) – In a recent decision, the Kentucky Supreme Court placed stricter limitations on the opinions that biomechanical engineers may offer at trials in Kentucky courts. Specifically, the published opinion issued in Renot v. Securea, Supreme Ins. Co., 2023 Ky. LEXIS 163, recognizes a new space for the testimony of biomechanics experts – “The Goldilocks Zone.”
Where is the Goldilocks Zone?
The Goldilocks Zone is a perfect place in which the proffered testimony is neither too specific such that it wanders into the realm of medical causation, nor too general such that it fails to help a lay jury. Specifically, a biomechanical engineer’s expert testimony must be limited to the forces generated by the subject collision, the generally anticipated responses of a hypothetical person’s body to those forces, and the range of typical injuries resulting from such forces. Moreover, following Renot, a biomechanical engineer’s proffered opinions no longer may enter into the realm of diagnosing a specific medical condition associated with a traumatic injury. Instead, the question of whether a trauma actually caused or exacerbated a plaintiff’s injuries falls solely within the purview of a medical doctor.
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Aimee E. Muller, Lewis BrisboisMs. Muller may be contacted at
Aimee.Muller@lewisbrisbois.com
