2015-2016 California Labor & Employment Laws Affecting Construction Industry
October 28, 2015 —
Steven M. Cvitanovic, David A. Harris, & Kristen Lee Price – Haight Brown & Bonesteel LLPEarlier this month, California Governor Jerry Brown signed dozens of bills that affect employers. Many of these bills have special significance to the construction industry. Here is a brief review:
Assembly Bill 219 – Prevailing Wages for Concrete Delivery on Public Projects
AB 219 continues California’s aggressive expansion of prevailing wages. This bill expands the definition of “public works” for purposes of state prevailing wage law to include the hauling or delivery of ready-mixed concrete for a public works project.
Previously, delivery drivers hired by a material supplier were exempted from the prevailing wage. Before AB 219, labor law made a distinction between “suppliers” and “contractors.” Thus, ready-mixed concrete was held to be a finished product, and treated differently from a product that was assembled on site. The new law eliminates this distinction.
Reprinted courtesy of Haight Brown & Bonesteel attorneys
Steven M. Cvitanovic,
David A. Harris and
Kristen Lee Price
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com
Mr. Harris may be contacted at dharris@hbblaw.com
Ms. Price may be contacted at kprice@hbblaw.com
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Greystone on Remand Denies Insurer's Motion for Summary Judgment To Bar Coverage For Construction Defects
June 28, 2013 —
Tred EyerlyA prior post here discussed the Tenth Circuit's decision in Greystone Constr., Inc. v. National Union Fire & Marine Ins. Co., 661 F. 3d 1272 (10th Cir. 2011). The court found a duty to defend construction defect claims where damage caused by the faulty workmanship was unintentional. The Tenth Circuit remanded for a determination on whether any policy exclusions precluded a defense or indemnity for damage arising from faulty workmanship. On remand, the district court denied National Union's Motion for Summary Judgment, seeking to establish the policy exclusions precluded its duty to defend and to indemnify. See Greystone Constr., Inc. v. v. National Union Fire & Marine ins. Co., 2013 U. S. LEXIS 46707 (D. Colo. March 31, 2013).
Greystone was sued for construction defects in homes it built. The suit alleged that Greystone failed to recognize defects in the soil where the house was built. National Union refused to defend. The district court initially granted summary judgment to National Union because claims arising from construction defects were not covered. As noted above, the Tenth Circuit vacated because the damage in the underlying suit did not categorically fall outside coverage under the policy.
On remand, National Union first argued there was no duty to defend based upon an exclusion precluding coverage for damage arising out of work done by subcontractors unless the subcontractors agreed in writing to defend and indemnify the insured and carried insurance with coverage limits equal to or greater than that carried by the insured. The Tenth Circuit rejected this argument because National Union had to rely on facts outside of the underlying complaint.
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Tred EyerlyTred Eyerly can be contacted at
te@hawaiilawyer.com
Broker's Motion for Summary Judgment on Negligence Claim Denied
July 30, 2018 —
Tred R. Eyerly - Insurance Law HawaiiAfter being sued for negligence for failing to secure proper coverage, the broker was unsuccessful in seeking dismissal by way of summary judgment. Liverman Metal Recycling, Inc. v. Arthur J. Gallagher & Co., 2018 U.S. Dist. LEXIS 87957 (E.D. N.C. May 25, 2018).
Plaintiffs were two companies, Empire and Liverman, that processed scrap metal. They were in the process of merging under a management plan by which Empire would acquire Liverman. As part of the plan, Empire's employees were moved on to Liverman's payroll processing system. Concurrently, Liverman renewed its workmen's compensation policy. Defendant Arthur J. Gallagher & Company, an insurance broker, handled the renewal with the insurer, Bridgefield Insurance Company.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
New Addition To New Jersey Court Rules Impacts More Than Trial Practice
November 16, 2020 —
Thomas Regan & Karley Kamaris - Lewis Brisbois NewsroomOn September 1, 2020, New Jersey adopted a brand-new rule of procedure, Rule 4:25-8, which properly defines motions in limine. On its face, the new rule prohibits, broadly, filing motions in limine that may have a dispositive effect on the case. Most notably, the rule expressly eliminates the ability to move, on motion in limine, to bar expert testimony in matters in which such experts are required to sustain a party’s burden of proof. This effectively makes the summary judgment phase of litigation the last chance to bar experts from a jury trial or take any other dispositive action
The new rule comes at a time in which the evidentiary standard for experts is shifting in New Jersey. In October 2018, the New Jersey Supreme Court reconciled the framework for analyzing the reliability of expert testimony under N.J.R.E. 702 and 703 in In re: Accutane Litigation. Significantly, New Jersey, a traditional Frye jurisdiction, incorporated certain federal Daubert factors for expert “use by our courts” but, overall, fell short of adopting the Daubert standard as a whole. In applying the relevant Daubert factors, the trial court in Accutane held that the subject experts’ methodologies were unsound due to the failure to apply fundamentals of the scientific method of the medical-evidence hierarchy. The decision resulted in the dismissal of over 3,000 claims.
Reprinted courtesy of
Thomas Regan, Lewis Brisbois and
Karley Kamaris, Lewis Brisbois
Mr. Regan may be contacted at Thomas.Regan@lewisbrisbois.com
Ms. Kamaris may be contacted at Karley.Kamaris@lewisbrisbois.com
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El Paso Increases Surety Bond Requirement on Contractors
April 25, 2011 —
Beverley BevenFlorez CDJ STAFFThe city of El Paso has recently increased surety bonds required of contractors from $10,000 to $50,000, according to the El Paso Times. Proponents of the increase believe it was necessary to protect homeowners from fly-by-night builders, while opponents argue that the increase will have an adverse effect on an industry in that is already suffering due to the economic slowdown.
Arguments for and against the increase have been flooding the blogosphere with their views. Christian Dorobantescu on the Small Business Entrepreneur Blog claims that “only about 15% of the city’s 2,500 contractors had been able to secure a higher bond to remain eligible for work after the new requirements were announced.” However, insurance companies have a different take. “From a surety broker standpoint, most contractors will be able qualify for the bond; some will just have to pay higher premium rates to obtain it,” a recent post on the Surety1 blog argues.
While the increased bond may help homeowners deal with construction defect claims, it is not clear what effect it will have on builders in El Paso.
Read more from the El Paso Times…
Read more from the Small Business Entrepreneur Blog…
Read more from the Surety1 Blog…
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7 Areas where Technology is Shifting the Construction Business
November 21, 2018 —
Eric Weisbrot – JW Surety BondsThe digital transformation of the last two decades has taken hold of the business environment in a powerful way. Companies in nearly all sectors are experiencing a significant shift in the way business is done, with a heavy focus on improved productivity, increase profitability, and enhanced product and service offerings. The construction industry has been historically slow to update its processes and business models in-line with other industries, but technology is currently making its long-awaited appearance in the sector. Construction professionals can embrace these new solutions to run more efficient businesses and keep a closer eye on profitability by reducing
common costs over time.
These are the seven major areas where technology is changing construction.
1 - Business Management
One of the most apparent shifts taking place in the construction industry thanks to technology is the advancement of business processes and systems behind the scenes. Construction managers and job site owners have countless
digital tools at their fingertips to help with managing all aspects of the business. This includes more efficient ways to manage material use and equipment inventory, logging subcontractor hours and pay, and maintaining reporting requirements from regulatory perspectives. Many software solutions integrate with older, legacy systems, making this change an easy one for construction businesses across the board.
2 – Jobsite Productivity
Another area of transformation in construction is productivity on each job site. Technology has offered job owners and general contractors more efficient methods to keep track of project timelines as well as subcontractor progress from start to finish. The technology advancements in this arena come in the form of wearable devices that track work performed, as well as mobile devices that help keep the often mundane tasks necessary for a project’s success up to date and completed on time.
3 – Worker Safety
Although wearables are being utilized in several different ways in the construction business, these devices are making a significant difference in the safety of workers. From smart helmets to digitally enhanced eyewear, workers are alerted to potential hazards on the job that they otherwise could not identify. Similarly, augmented and virtual reality solutions are being used to train workers before they arrive at a job, preparing them for safety concerns well in advance. Even though most licensed and
bonded construction workers have appropriate training throughout their careers, the addition of these resources has the ability to further reduce the risks often associated with construction work.
4 – Surveying and Monitoring
Unmanned aerial vehicles, also known as
drones, are being used throughout construction. These digital tools are equipped with cameras to offer a bird’s eye view of a construction site to help with surveying and identifying potential hazards for workers. Drones also help with inspections throughout a project’s progression, offering some reduction in cost and improving efficiencies.
5 – Improved Materials
Technology is also playing a role in the materials used on job sites. The addition of 3D printing has proven beneficial for construction companies, as concrete composites, plastics, and other materials are being printed and used to create structures on-site. This offers a more cost-effective and accurate way to complete a project.
6 – Self-operating Equipment
Some technology firms are making waves in the construction industry because they are currently developing and implementing
autonomous equipment solutions. Heavy machinery, like excavators, bricklayers, and bulldozers, are already being used on construction sites to help ease the burden of the labor shortage in the industry. While these machines are not yet mainstream, the benefits they offer mean they are likely to become a staple in construction in the years to come.
7 – Big Data
Finally, technology is shifting the construction business by way of big data analytics. With the detailed information from new software solutions, wearable tech, and drones, construction site managers have more data than they have ever had. This influx of information offers a way to analyze job site progress, budgets, timelines, and efficiency for companies large and small.
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.
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Should CGL Insurer have Duty to Defend Insured During Chapter 558 Notice of Construction Defects Process???
September 01, 2016 —
David Adelstein – Florida Construction Legal UpdatesDoes a CGL insurer have a duty to defend its insured-contractor during Florida Statutes Chapter 558 notice of construction defects pre-suit process? This answer is currently undecided and will be up to the Florida Supreme Court to decide. (It is on appeal stemming from a federal district court saying that an insurer does not have a duty to defend its insured-contractor in the 558 process based on the definition of the word “suit” in the CGL policy.)
Why is this an important issue?
The 558 pre-suit notice of construction defects process is designed to facilitate an avenue for construction defect lawsuits to get resolved without having to file a lawsuit or, at least, have issues narrowed before a lawsuit needs to be filed. (Check here for a summary of the 558 process.) It requires pre-suit notifications so that implicated parties can become aware of the defects and have an opportunity to inspect the defects / damage, test the defects / damage, and respond to the notice of construction defects; it provides an avenue for beneficial pre-suit discovery. Through participating in the 558 process, the contractor and/or design professional (and those downstream from them) can: (i) offer to remedy the defect, (ii) settle the defect, whether through money or a combination of money and repairs, (iii) dispute the defect, or (iv) advise that available insurance proceeds will be determined by its liability insurer. See Fla. Stat. s. 558.004.
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David M. Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Homebuilders Call for Housing Tax Incentives
May 10, 2013 —
CDJ STAFFThe National Association of Home Builders has asked Congress to support tax incentives for home buyers and renters, including the Low Income Housing Tax Credit and the mortgage interest deduction. Robert Dietz, an economist at the NAHB, noted that in 2009, 35 million home owners were able to claim the mortgage deduction. Dietz responded to arguments that the deduction simply lead to people buying bigger homes by saying that “the need for a larger home created the higher loan deduction, not the other way around.”
The NAHB notes that one hundred new single-family homes creates more than 300 jobs and generates substantial tax revenues. “Housing provides the momentum behind an economic recovery because home building and associated businesses employ such a wide range of workers” said Dietz.
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