Fairfield Connecticut Building Expert Directory

I’m Sorry Ms. Jackson, I [Sovereign Immunity] am For Real

June 08, 2020 — Greggory Jacobs - Florida Construction Law News Blog
The Supreme Court of Florida issued its opinion in Florida Highway Patrol v. Jackson, 2020 Fla. LEXIS 108 (Fla. Jan 23, 2020), which answered the following certified question of great public importance: Does rule 9.130 [(A)(3)(C)(XI)] permit an appeal of a non-final order denying immunity if the record shows that the defendant is entitled to immunity as a matter of law but the trial court did not explicitly preclude it as a defense? The Court’s answer to this question was “no.” But this opinion stands for much more than just a negative answer to a certified question. Indeed, this opinion has significant implications upon procedural and substantive areas of construction law, which may affect agents of the state of Florida, including Construction Engineering and Inspection professionals and consultants (“CEI”). Procedurally, the Court recognizes that Fla. R. App. P. 9.130 insufficiently protects the public and governmental interests as “it leaves too great a risk that erroneous denials of operational sovereign immunity will go unreviewed until it is too late.” Id. at * 19. By extension of this risk, the Jackson Court announced that “courts should determine entitlement to sovereign immunity as early as the record permits.” Id. at * 18. In fact, on that basis, courts can address a motion for summary judgment asserting entitlement to sovereign immunity even if there are outstanding disputes as to, say, the existence of a duty of care. Id. at 17-18. Accordingly, and in an effort to remedy the risk of erroneous denials going unreviewed until it is too late, the Court amended Fla. R. App. P. 9.130 to expand appellate review of nonfinal orders denying sovereign immunity. Jackson, 2020 Fla. LEXIS 108 at * 19; In re Amendments to Fla. Rule of Appellate Procedure 9.130, No. SC19-1734 (Fla. Jan. 23, 2020). The new form of Fla. R. App. P. 9.130 cements the policy mentioned above because it allows an appeal of a nonfinal order denying a motion for summary judgment due to entitlement to sovereign immunity. Meanwhile, under the old rule, the order was only appealable if the trial court order determined – as a matter of law – that a party was not entitled to sovereign immunity. As such, the new rule focuses on what was argued in the motion as opposed to what was written in the order. Read the court decision
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Reprinted courtesy of Greggory Jacobs, Cole, Scott & Kissane, P.A.
Mr. Jacobs may be contacted at greggory.jacobs@csklegal.com

Landmark Contractor Licensing Case Limits Disgorgement Remedy in California

November 09, 2020 — Candace Matson - Construction & Infrastructure Law Blog
Contractors performing work in California are required to be licensed by the California State License Board (“CSLB”). Cal. Bus. & Prof. Code §7065. Except for sole proprietors, contractors are typically licensed through “qualifiers,” i.e., officers or employees who take a licensing exam and meet other requirements to become licensed on behalf of the contractor’s company. Contractors who perform work in California without being properly licensed are subject to a world of hurt, including civil and criminal penalties (see, e.g., Cal. Bus. & Prof. Code §§ 7028, 7028.6, 7028.7, 7117, and Cal. Labor Code §§ 1020-1022), and the inability to maintain a lawsuit to recover compensation for their work. Cal. Bus & Prof. Code § 7031(a); Hydra Tech Systems Ltd. v. Oasis Water Park, 52 Cal.3rd 988 (1991). But arguably the worst ramification of not being property licensed is that established in Business & Professions Code Section 7031(b), which provides that any person who uses the services of an unlicensed contractor may bring an action for the return of all compensation paid for the performance of the work, commonly known as “disgorgement.” This remedy is particularly harsh (often described as “draconian”) because it makes no allowance for the fact that an unlicensed contractor will likely have already paid out the bulk of its compensation to its subcontractors, suppliers and vendors, but nevertheless can be ordered to disgorge all compensation. Read the court decision
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Reprinted courtesy of Candace Matson, Sheppard Mullin
Ms. Matson may be contacted at cmatson@sheppardmullin.com

A General Contractors Guide to Bond Thresholds by State

June 13, 2018 — Wally Zimolong – Supplemental Conditions
Author: Eric Weisbrot is the Chief Marketing Officer of JW Surety Bonds. With years of experience in the surety industry under several different roles within the company, he is also a contributing author to the surety bond blog. For general contractors in construction, there are many facets of business management that must be considered and then accomplished over time. Operating a successful general contractor business regardless of size or niche requires an understanding of bookkeeping, personnel management, regulatory compliance, as well as revenue potential for each project. However, one often overlooked aspect of being a general contractor – having the appropriate contractor license and minimum surety bond – correlates to each of these required fragments of the business from the start. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Client Alert: Restaurant Owed Duty of Care to Driver Killed by Third-Party on Street Adjacent to Restaurant Parking Lot

January 07, 2015 — R. Bryan Martin, Lawrence S. Zucker II, & Kristian B. Moriarty – Haight, Brown, & Bonesteel, LLP
In Annocki v. Peterson Enterprise, LLC, (Filed 11/14/2014, Certified for Publication 12/5/2014, No. B251434) the Court of Appeal, Second District, held a restaurant owed a duty of care to the driver of a motorcycle who died as a result of the negligent driving of a third party exiting the restaurant’s parking lot. Decedent, Joseph M. Annocki, was driving his motorcycle on Pacific Coast Highway in Malibu, when it collided with the vehicle operated by Terry Allen Turner, who was exiting the parking lot of “Geoffrey’s" restaurant, which was owned and operated by the Defendant, Peterson Enterprise, LLC (“Peterson”). The parents of the decedent (“Plaintiffs”) filed suit against Peterson, alleging Peterson failed to adequately staff the restaurant parking lot, which caused Turner to become confused and make an illegal left turn onto Pacific Coast Highway, thereby causing the accident that killed decedent. Plaintiffs further alleged Peterson knew, or should have known, that its parking lot and driveway were designed and in such condition as to create a danger of decreased visibility of the adjacent highway, and failed to adequately provide signage directing patrons that only right turns could be made onto Pacific Coast Highway. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys R. Bryan Martin, Lawrence S. Zucker II and Kristian B. Moriarty Mr. Martin may be contacted at bmartin@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Mr. Moriarty may be contacted at kmoriarty@hbblaw.com Read the court decision
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When to use Arbitration to Resolve Construction Disputes

February 25, 2014 — Beverley BevenFlorez-CDJ STAFF
On the blog Construction Contractor Advisor, Craig Martin answers the question of whether arbitration is always the best choice for resolving construction claims. His answer: “Some claims may benefit from arbitration, but the benefit is not always clear.” Martin brings forth four points to consider. First, AIA Contracts do not “push Arbitration.” Second, the cost of arbitration may be expensive: “You could well spend over $5,000 just to have the arbitrator decide your case—again, not to mention your own attorneys fees.” Third, arbitration doesn’t avoid discovery. And finally, “mediation is always an option, regardless of which way you pursue your claim.” Read the court decision
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Bank Sues over Defective Windows

July 31, 2013 — CDJ STAFF
The Federal Reserve Bank of St. Louis replaced 498 windows in its building in 2008. According to a consultant, they all have to be replaced again. The bank estimates that the damages will exceed $1.5 million, and they are suing the contractor who installed them, the window manufacturer, and others. The windows were replaced to provide greater blast protection. But in 2011, the bank found that the special glass used was beginning to delaminate. The Federal Reserve is seeking to have all of the windows replaced “with windows that meet the specifications of the contract.” McCarthy Building Construction says that it is attempting to resolve things. The contractor noted that it is “continuing to work with the Federal Reserve and other parties and hope we can resolve this matter in a timely manner.” Read the court decision
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Construction Companies Can Be Liable for “Secondary Exposure” of Asbestos to Household Members

October 26, 2017 — Garret Murai - California Construction Law Blog
The history of asbestos regulation in the United States is complicated. Prior to the 1970s, asbestos-containing materials used in construction was widespread. In 1971, when the U.S. Environmental Protection Agency issued an emissions standard for asbestos as part of the Clean Air Act. In 1972, the EPA extended this regulation to an occupational standard and, over the next decade, the EPA together with the U.S. Occupational Safety and Health Administration and the U.S. Consumer Product Safety Commission issued a wide array of regulations aimed at asbestos. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

All Risk Policy Only Covers Repair to Portion of Dock That Sustains Damage

January 06, 2012 — Tred R. Eyerly - Insurance Law Hawaii

A portion of a dock on Lack Michigan operated by the Ports of Indiana suffered visible damage. See Ports of Indiana v. Lexington Ins. Co., 2011 U.S. Dist. LEXIS 130979 (S.D. Ind. Nov. 14, 2011). Lexington Insurance Company insured the port. Lexington agreed that a portion of the dock was damaged and paid $1.2 million for repairs. A dispute arose, however, over whether additional sections of the dock were damaged and whether the damage was the result of more than one "occurrence."

An expert report opined that a significant drop creating record lows in the water level of Lake Michigan in 2007 caused damage to the dock. Lexington maintained that only 128 feet of the dock was damaged; other portions of the dock did not sustain "direct physical loss or damage."

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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