SEATTLE WASHINGTON BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Be Careful When Requiring Fitness for Duty Examinations

October 21, 2015 — Craig Martin – Construction Contractor Advisor
Fitness for Duty examinations can be an important part of an employer’s hiring and retention protocol. The Nebraska Supreme Court recently clarified when an employer may require applicants and employees to undergo fitness for duty examinations. In Arens v. Nebco, Inc., the court ruled that an employer must have a legitimate, nondiscriminatory reason for its demand that a current employee submit to a fitness for duty examination. In this case, Lenard Arens suffered two significant injuries over the course of his 25 years of employment with Nebco. The second injury, a closed head injury, limited the type of work he could do and required written instructions due to short term memory loss. Arens was assigned to drive tractor-trailer trucks. Several years after returning to work, Arens had two minor accidents with his truck within a matter of days. Arens supervisor required him to undergo fitness for duty examination. Arens failed the fitness for duty examination and was terminated. Arens filed suit, claiming that Nebco discriminated against him by making him take a fitness for duty test. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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Condos Down in Denver Due to Construction Defect Litigation

November 06, 2013 — CDJ STAFF
A new report suggests that fears of construction defect litigation may be the cause of the slump in condo building in the Denver area. The Denver Business Journal reports that the Denver Regional Council of Governments commissioned the study by Economic & Planning Systems. The conclusion of the report was that the only type of condominium likely to be built is high-cost units with high profit margins. This is not good news for the DRCOG, which is seeking to create more affordable housing. The report found that builders assess the likeliness of being sued “is nearly 100 percent,” that costs of addressing construction defects are 12% higher than at apartment complexes, and that preparing for litigation adds about $15,000 to the cost of a condo unit. One possible remedy is to reform Colorado’s construction defect laws. Bob Muphy, the mayor of Lakewook and an advocate of construction defect litigation reform, said that he sees “this as a verification of what I’ve been talking about.” Read the court decision
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It’s a COVID-19 Pandemic; It’s Everywhere – New Cal. Bill to Make Insurers Prove Otherwise

August 17, 2020 — Scott P. DeVries & Andrea DeField - Hunton Andrews Kurth
On June 29, in a development that may fundamentally change the landscape for California businesses which have sustained COVID-19 related business interruption loss, two California legislators amended pending legislation to address several of the most hotly contested issues regarding insurance recovery for these devastating losses. The bill, Assembly Bill 1552, focuses on All-Risk property insurance policies. As amended, it would create a “rebuttable presumption” that COVID-19 was present on and caused physical damage to property which was the direct cause of business interruption. A similar rebuttable presumption would apply to orders of civil authority coverage and to ingress/egress coverage. The bill would further prohibit COVID-19 from being construed as a pollutant or contaminant for purposes of any policy exclusion unless the exclusion specifically referred to viruses. The bill would apply to any All-Risk policy in effect on or after March 4, 2020 and is written to satisfy the standards for an “urgency” statute, taking effect immediately upon being signed into law. Reprinted courtesy of Scott P. DeVries , Hunton Andrews Kurth and Andrea DeField, Hunton Andrews Kurth Mr. DeVries may be contacted at sdevries@HuntonAK.com Ms. DeField may be contacted at adefield@HuntonAK.com Read the court decision
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New Jersey Appellate Decision Reminds Bid Protestors to Take Caution When Determining Where to File an Action

March 13, 2023 — Brian Glicos & Nicholas J. Zaita - Peckar & Abramson, P.C.
On February 21, 2023, the New Jersey Appellate Division held that University Hospital is not a “state administrative agency” and, therefore, the Appellate Division does not have original jurisdiction to determine the merits of an action commenced by an unsuccessful bidder to challenge the award of a contract. In re Protest of Contract for Retail Pharmacy Design, Constr., Start-up & Operation, Request for Proposal No. UH-P20-006, A-1667-20, 2023 WL 2125002 (N.J. Super. Ct. App. Div. Feb. 21, 2023). Pursuant to Rule 2:2-3(a)(2) of New Jersey’s Rules of Court, final decisions or actions of any state administrative agency or officer may be appealed directly to the Appellate Division as of right. Accordingly, where an unsuccessful bidder chooses to challenge the award of a contract issued by, for example, the New Jersey Department of Transportation, the unsuccessful bidder must file its action directly with the Appellate Division. On the other hand, where an unsuccessful bidder wishes to challenge a contract award made by a local municipality (among a slew of other public entities), the Superior Court Law Division maintains original jurisdiction over the dispute. Reprinted courtesy of Brian Glicos, Peckar & Abramson, P.C. and Nicholas J. Zaita, Peckar & Abramson, P.C. Mr. Glicos may be contacted at bglicos@pecklaw.com Mr. Zaita may be contacted at nzaita@pecklaw.com Read the court decision
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A Court-Side Seat: NWP 12 and the Dakota Access Pipeline Easement Get Forced Vacations, while a Potential Violation of the Eighth Amendment Isn’t Going Anywhere

August 10, 2020 — Anthony B. Cavender - Gravel2Gavel
Here’s a report on several new decisions made over the past few days. U.S. SUPREME COURT U.S. Army Corps of Engineers v. Northern Plains Resources Council On July 8, 2020, the Court has issued a partial stay of the decision of the U.S. District Court for Montana, which had held that the nationwide use by the Corps of Engineers of its Nationwide Permit 12 to permit oil and gas pipelines must be vacated because the Corps, when it reissued these permits in 2012, failed to follow the requirements of the Endangered Species Act. The breadth of this ruling seems to have surprised and alarmed many past and perspective permittees of the Corps. The stay will not apply to the ongoing Ninth Circuit litigation. FEDERAL COURTS OF APPEAL Vega, et al. v. Semple (The U.S. Court of Appeals for the Second Circuit) On June 29, 2020, the court refused to dismiss a putative class action by past and present inmates of Connecticut’s Garner Correctional Institution who alleged that state correctional officials exposed them to excessive amounts of radon gas in violation of the Eighth Amendment. These officials are alleged to have been “deliberately indifferent” to inmate safety. A 1993 Supreme Court decision, Helling v. McKiney, clearly established the law in this area, and the Garner facility opened in 1992. The defense clams of limited immunity as to federal law violations were rejected. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Real Estate & Construction News Round-Up (05/18/22)

June 13, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
Businesses renovate office spaces at a historic pace, China plans to build a 3D-printed hydropower dam without human workers, the U.S. infrastructure package has thousands of projects underway, and more.

• Miami’s crypto-real estate boom has been challenging all conventional wisdoms as the price of crypto currencies like Bitcoin have surged, which could spill over into other popular real estate markets. (Peter Lane Taylor, Forbes)
• China is planning to build the world’s first 3D-printed hydropower dam in Tibet, with an AI-powered design and no human workers. (Matthew Loh, Business Insider)
• With the hybrid work model here to stay, businesses are having their offices renovated at a historic pace. (Joe Dyton, Connected Real Estate Magazine)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Bidders Shortlisted as Oroville Dam Work Schedule is Set

April 13, 2017 — JT Long - Engineering News-Record
In a race to fix the damaged Oroville Dam’s main spillway by November, the California Dept. of Water Resources, the operator of the country’s tallest dam, is going to bid with a 65%-complete design that breaks recovery efforts into three parts, with an ultimate goal of doubling the main spillway’s release capacity to 270,000 cu ft per second. Read the court decision
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Reprinted courtesy of JT Long, ENR
ENR may be contacted at ENR.com@bnpmedia.com

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Trump Administration Issues Proposed 'Waters of the U.S.' Rule

December 19, 2018 — Pam Radtke Russell - Engineering News-Record
Construction contractors said a proposed revised definition of “Waters of the United States,” released by the Environmental Protection Agency and the Army Corps of Engineers on Dec. 11, would provide their firms with clarity about what types of permits they will need for their construction projects near various bodies of water. Read the court decision
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Reprinted courtesy of Pam Radtke Russell, ENR
Ms. Russell may be contacted at Russellp@bnpmedia.com

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