Legislative Changes that Impact Construction 2017
May 10, 2017 —
Christopher G. Hill - Construction Law MusingsWell, the Virginia General Assembly has finished its yearly run through the legislative process and this year there are a few highlights for those of us in the construction industry. It is always interesting to see what issues are the big ones that get a lot of attention. This year the changes impacted public procurement, VOSH fines, and employment of unlicensed individuals on a job site. These changes to the various statutes that impact the day to day operation of the construction industry in Virginia will go into effect on July 1, 2017.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Work to Solve the Mental Health Crisis in Construction
September 05, 2022 —
Bruce Morton & Diane Andrea - Construction ExecutiveThe suicide rate for construction is one of the highest among major industries. That statistic is from a 2018 report from the Centers for Disease Control and Prevention. And it’s one major reason why the concern about mental health in the construction industry has grown. Research shows that as many as 90% of all people who die by suicide have a mental health condition. Depression is the most common cause, but other conditions such as substance use disorders may have an impact as well.
What is causing mental health conditions in the construction industry? According to the U.S. Bureau of Labor Statistics, 97% of the U.S. construction industry is male—and men experience the highest rate of suicides. Yet, while the suicide rate for women in construction is lower than that for men in the construction industry, it appears to be much higher than the suicide rate for the general female population. Being “tough” and “strong” are highly valued; acknowledging mental health concerns—or even seeking help—may be considered a sign of weakness. There is often fear of shame and judgment for admitting you have a problem.
In addition, the nature of construction industry jobs may affect mental health. Injuries may cause chronic pain, which can result in substance disorders like opioid use. Seasonal work can result in layoffs, which puts a strain on family relationships and finances. The job is high-stress and the work is deadline-driven. Employees work long hours, potentially resulting in fatigue. Sometimes work is away from home for extended periods. The pandemic has exacerbated every other problem while creating its own.
Reprinted courtesy of
Bruce Morton and Diane Andrea, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Morton may be contacted at bruce.morton@marshmma.com
Ms. Andrea may be contacted at Diane.Andrea@MarshMMA.com
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Issues to Watch Out for When Managing Remote Workers
July 13, 2020 —
Melissa (Powar) Clarke - Payne & FearsManaging remote workers comes with its share of challenges. The complexities of setting and articulating expectations in a remote work environment – and providing feedback about performance tied to those expectations - adds an additional burden to our already-crowded work lives, particularly for managers who are new to remote supervisory roles.
This article highlights some key issues that arise when managing remote workers.
Issue 1: Insufficient feedback
Annual reviews are not enough. Data clearly reflects that employees who receive regular feedback are happier, and more productive, in their roles. Employees require a “continuous feedback loop” to grow and improve. While many companies started migrating toward continuous feedback before the pandemic, remote work further increases the need for more frequent (formal and informal) check-ins. Organizations must provide management with a toolkit for providing – and receiving – constant feedback, and this toolkit should take into account changes in work styles and modalities of communication when employees are remote. Given the ease with which we can give face-to-face feedback compared to “virtual” feedback, this toolkit becomes even more important when only some employees are remote and others have returned onsite.
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Melissa (Powar) Clarke, Payne & FearsMs. Clarke may be contacted at
mec@paynefears.com
Business Interruption Insurance Coverage Act of 2020: Yet Another Reason to Promptly Notify Insurers of COVID-19 Losses
May 25, 2020 —
James Hultz - Newmeyer DillionBusiness interruption coverage stemming from the COVID-19 pandemic is a matter of intense debate. The number of policyholder lawsuits continues to rise sharply and an increasing number of state legislatures are considering laws to specifically address such coverage.
Now, additional proposed legislation at the federal level could completely and definitively resolve the debate in favor of coverage for policyholders.
The Business Interruption Insurance Coverage Act of 2020
On April 14, Congress introduced the Business Interruption Insurance Coverage Act of 2020 (the “Act”) which, if passed, would require insurance companies to cover business interruption losses due to “viral pandemics, forced closures of businesses, mandatory evacuations, and public safety power shut-offs.” The bill further states:
Any exclusion in a contract for business interruption insurance that is in force on the date of the enactment of this Act shall be void to the extent that it excludes losses specified . . . .
The draft legislation also specifies that it preempts state approval of any contrary exclusion and renders such approval “void to the extent that it excludes losses specified.”
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James Hultz, Newmeyer DillionMr. Hultz may be contacted at
james.hultz@ndlf.com
When an Insurer Proceeds as Subrogee, Defendants Cannot Assert Contribution Claims Against the Insured
July 15, 2019 —
Shannon M. Warren - The Subrogation StrategistIn Farmers Mut. Ins. Co. of Mason County v. Stove Builder Int’l, 2019 U.S. Dist. Lexis 46993 (E.D. Ky.), the United States District Court for the Northern Division of the Eastern District of Kentucky, by adopting a Magistrate Judge’s report and recommendations, see Farmers Mut. Ins. Co. v. Stove Builder, Int’l, Inc., 2019 U.S. Dist. LEXIS 48103 (E.D. Ky. Feb. 11, 2019), considered whether to allow the defendants to file a third-party complaint against the plaintiff’s insureds-subrogors. Finding that the defendants could not pursue contribution claims against the plaintiff’s insureds-subrogors, the court denied the defendant’s motion to file a third-party complaint.
The underlying subrogation action involved allegations of strict liability, negligence and breach of warranty against a pellet heater manufacturer and the retailer who sold the heater. The claims arose from a fire allegedly originating from the heater, which spread to the insureds-subrogors’ home causing property damage, along with consequential damages. Pursuant to the applicable insurance policy, the insureds-subrogors’ insurer issued payments to its insureds-subrogors. Thereafter, the insurer filed suit against the heater manufacturer and retailer.
The defendants filed a motion for leave to file a third-party complaint against the plaintiff’s insureds-subrogors, seeking to assert a contribution claim. The defendants alleged that the insureds-subrogors failed to properly install and maintain the pellet heater. The defendants also sought a jury instruction that would permit the jury to apportion fault to the insureds-subrogors, resulting in a reduction of the plaintiff’s recovery. The court looked to federal procedural law, but Kentucky substantive law to decide the defendants’ motion.
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Shannon M. Warren, White and WilliamsMs. Warren may be contacted at
warrens@whiteandwilliams.com
Pandemic Magnifies Financial Risk in Construction: What Executives Can Do to Speed up Customer Payments
August 23, 2021 —
Lori J. Drake - Construction ExecutiveConstruction businesses are waiting longer for payment in 2021, according to the newly released 2021 Construction Cash Flow and Payment Report conducted by Levelset.
According to respondents, only 10% of construction businesses get paid in full, which is a 75% drop from 2020, and only 9% get paid on time, which is a drop of 60% over last year.
The report, based on a survey of 764 construction professionals, illustrates that financial risk in the industry flowed down the payment chain. General contractors were four times more likely to get paid in 30 days, and 50% more likely to get paid in full. However, 20% of subcontractors, suppliers and other second-tier companies were kept waiting more than 60 days to collect payment.
Reprinted courtesy of
Lori J. Drake, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Contract, Breach of Contract, and Material Breach of Contract
July 05, 2023 —
Wendy Rosenstein - Ahlers Cressman & Sleight PLLCAt its most basic level, a contract is an agreement to make a trade. Parties to a contract agree to perform a specific action on the condition that the other side also performs a specific action. For instance, you and a Girl Scout could create a contract in which the Girl Scout agrees to deliver one box of cookies and you agree to pay her $6.00. In this case, both you and the Girl Scout have obligations under the contract.
If the Girl Scout failed to send you the cookies, what do you do? You send her a note, in writing, telling her that you expect the cookies (or assurance that you will get the cookies) within a certain amount of time—this is notice and the opportunity to cure. Most contracts have a “notice and opportunity to cure” provision, which essentially says that one side must give the other side an opportunity to fix breaches before canceling the contract. Once a party receives a notice to cure, they must either rectify the problem or offer adequate assurances that they will fix the problem. Generally, the party has only a short period of time to address the breach.
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Wendy Rosenstein, Ahlers Cressman & Sleight PLLC
Landmark Towers Association, Inc. v. UMB Bank, N.A. or: One Bad Apple Spoils the Whole Bunch
May 12, 2016 —
Jean Meyer - Colorado Construction LitigationOn April 21, 2016, the Colorado Court of Appeals issued an opinion that immediately drew the ire of the greater real estate development industry and those concerned about affordable housing in a state in the midst of unprecedented soaring rent and housing prices. The Landmark Towers Assn., Inc. v. UMB Bank, N.A., 2016 COA 61, decision is the result of protracted litigation arising out of construction and sale of the ill-fated European Village (“Village”) residential community. For a thorough summary of the origins of the development and the unfortunate story of the man behind the curtain, review the Denver Post’s article titled “Zachary Davidson, Denver Landmark developer, and his fall from grace.” (http://www.denverpost.com/ci_22656011/fall-from-grace-zach-davidson-landmark denver)
Despite the unique facts and circumstances relating to the questionable dealings by the developer, Mr. Zachary Davidson, the decision now stands to turn the Colorado real estate development business on its head. Specifically, a group of condominium owners, who did not live in the Village, learned that their properties had been included in a special district, the Marin Metropolitan District (“District”), to finance the Village. Prior to their purchase, Mr. Davidson failed to disclose to the condominium owners that they would be responsible for financing the Village’s development through previously issued bonds by the District to be paid for through their property taxes. Understandably frustrated by this discovery the condominium owners, through the Landmark Towers Association, Inc. (“Landmark HOA”), investigated the origin of these unforeseen property taxes.
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Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLCMr. Meyer may be contacted at
meyer@hhmrlaw.com
