The Overlooked Nevada Rule In an Arena Project Lawsuit
August 04, 2016 —
Scott Van Voorhis – Engineering News-RecordWhen crunching the numbers on the construction wrap-up program for the T-Mobile Arena project outside Las Vegas, insurance broker Aon Risk Services South allegedly failed to take into account a Nevada workers’ compensation rule, one of many intricate features of the state’s workers’ compensation regulations. Others had apparently missed this aspect of the rule, too. “Many business owners and executives are unaware of this regulation and … are paying more premium to their workers’ compensation carriers than they should be,” warned Bradley Rowe, a commercial insurance broker in Las Vegas, in a blog post in 2014. Two years later, the prime contractor joint venture on the completed $230-million arena is battling in court with Aon, charging the broker with professional negligence and breach of contract, according to court documents filed in U.S. District Court in Nevada.
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Scott Van Voorhis, Engineering News-RecordYou may send questions or comments to
enr.com@bnpmedia.com
ASCE Statement on Senate Passage Of Infrastructure Investment and Jobs Act
August 16, 2021 —
Jean-Louis Briaud, President, American Society of Civil Engineers (ASCE)WASHINGTON, DC. –
The American Society of Civil Engineers (ASCE) applauds the U.S. Senate for passing the bipartisan Infrastructure Investment and Jobs Act (IIJA), proving once again that the strength and reliability of our nation's infrastructure systems is an issue that unites us all.
With this legislation, the federal government will restore their critical partnership with cities and states to modernize our nation's infrastructure, including transit systems, drinking water pipes, school facilities, broadband, ports, airports and more.
We commend the Senate for prioritizing American communities by passing this bipartisan infrastructure legislation and urge the U.S. House of Representatives to do the same.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Project-Specific Commercial General Liability Insurance
May 13, 2019 —
Jeremiah M. Welch - Saxe Doernberger & Vita, P.C.Many markets which provide insurance for construction projects include an endorsement providing coverage for “repair work” as part of their standard policy. “Repair work” endorsements are largely misunderstood by policyholders and the insurance broker community. They are typically assumed to be coverage enhancements, but many provide no additional coverage and actually risk reduction of coverage otherwise provided as part of the products-completed operations (“PCO”) extensions also found in these project-specific policies. This article is designed to help the reader understand these endorsements so that better decisions can be made at the point of purchase.
Intent
The common feature of these endorsements is a grant of coverage for bodily injury and property damage resulting from “repair work” for a specified period of time. Most endorsements define “repair work” to mean the repair of completed work performed pursuant to a contract or warranty.
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Jeremiah M. Welch, Saxe Doernberger & Vita, P.C.Mr. Welch may be contacted at
jmw@sdvlaw.com
Why A Jury Found That Contractor 'Retaliated' Against Undocumented Craft Worker
August 22, 2022 —
Richard Korman - Engineering News-RecordOn May 10, 2017, a Boston wall taper who had broken his leg in a fall from a ladder during work six weeks earlier took his two-year-old son to an office of a West Bridgewater, Mass.-based contractor, on the invitation of the CEO who asked him to come and gave the worker $500 to help him get by while recovering.
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Richard Korman, Engineering News-Record
Mr. Korman may be contacted at kormanr@enr.com
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Clean Water Act Cases: Of Irrigation and Navigability
January 06, 2020 —
Anthony B. Cavender - Gravel2GavelThe federal courts have recently decided two significant Clean Water Act (CWA) cases: State of Georgia, et al. v. Wheeler, where the US District Court for the Southern District of Georgia held that the 2015 rulemaking proceeding of EPA and the U.S. Army Corps of Engineers redefining the term “Waters of the United States” in the CWA violated the Act as well as the Administrative Procedure Act; and the Ninth Circuit’s decision in Pacific Coast Federation of Fishermen’s Associations, et al. v. Glaser, where the appeals court ruled that the lower court erroneously interpreted a CWA NPDES permitting exception involving agricultural return flows.
An Absence of Navigability: State of Georgia, et al. v. Wheeler
Decided on August 21, 2019, the district court, one of the few courts to grapple with the rule’s compliance with the CWA and the Administrative Procedure Act (APA), held that the agencies’ redefinition of the terms “Interstate Waters,” “Tributaries” and “Adjacent Waters” violated the CWA by reading “navigability” out of the new definitions, or by failing to adhere to the Supreme Court’s rulings in the 2005 case of Rapanos v. United States, in particular Justice Kennedy’s concurrence regarding the application of the “significant nexus” in case-by-case adjudications as to whether a particular body of water was covered by the Act. Moreover, some provisions of the rule conflicted with the APA because they were not a logical outgrowth of the rules proposed by the agencies in 2014, and on which they solicited comments, and other determinations were not supported by a reasonable explanation. In addition, without a clear statement from Congress that it supported the rule’s effect of increasing the nature and extent of enhanced federal jurisdiction over waters subject to the CWA, the court was loathe to approve the rule. Accordingly, the rule was remanded to the agencies for additional review consistent with this decision.
This decision is of particular importance as it may well be the first case to subject this new EPA rule—the linchpin of much of EPA’s regulation under the CWA—to extended review. (Other courts have only been asked to enjoin the rule, which involves a different type of review.)
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
2019 Legislative Changes Affecting the Construction Industry
July 09, 2019 —
Melinda S. Gentile & Cadian T. Baker - Peckar & Abramson, P.C.The 2019 Florida Legislative Session recently concluded and a number of important construction-related House Bills (HB) and Senate Bills (SB) were presented during the Session. Below is a summary of those construction-related bills set to become law in 2019.
Bills Becoming Law in 2019
HB 1247: Relating to Construction Bonds. This bill passed both the House and the Senate and is awaiting the Governor’s signature. Once the Governor has approved the bill it becomes effective as of October 1, 2019.
This bill addresses how to properly perfect a claim against a contractor’s payment bond.
(1) The Notice of Nonpayment that must be served on the contractor and the surety, must be made under oath and include the following provisions:
The nature of the labor or services performed or to be performed;
The materials furnished or to be furnished;
The amount paid on the account; and if known, the amount owed and the amount to become due.
A Notice of Nonpayment that includes the sums for retainage must specify the portion of the amount claimed for retainage.
(2) A subcontractor, laborer, or material supplier (claimant) who files a fraudulent Notice of Nonpayment loses their rights under the bond. The filing of a fraudulent notice is a complete defense to claimant’s claim against the bond. A notice is fraudulent if the claimant willfully exaggerated the amount due, willfully included a claim for work not performed or materials not furnished or prepared the notice with willful and gross negligence, which resulted in willful exaggeration. However, a minor mistake in the notice, or a good faith dispute as to the amount due, is not considered fraudulent. Please note that this provision mirrors the existing statute relative to a fraudulent lien.
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Melinda S. Gentile, Peckar & Abramson, P.C.Ms. Gentile may be contacted at
mgentile@pecklaw.com
Insurer Has Duty to Defend Despite Construction Defects
January 06, 2012 —
CDJ STAFFIn a case the judge attributed to “shoddy masonry work,” the US District Court of Illinois has rendered a decision in AMCO Insurance Company v. Northern Heritage Builders. Northern Heritage built a home in Chicago for Michael McGrath (who joined Northern Heritage as a defendant). According to the decision, “seven months after he moved into the house, McGrath noticed water coming in the house and warped millwork.” This was attributed to porous block, installed by the mason with Northern Heritage’s knowledge.
McGrath sued National Heritage for both the damage to his house and its contents. The court rejected his claim for the contents. For the damages to his house, he was awarded $601,570.50 in damages. He also sued his homeowner’s insurance carrier for damages not covered in his suit against National Heritage. There he was awarded $1,130,680.16.
AMCO informed National Heritage that it had neither duty to defend nor duty to indemnify. The judge considered whether AMCO had a duty to defend. Under Illinois law, “damage to a construction project resulting from construction defects is not an ‘accident’ or ‘occurrence’ because it represents the natural and ordinary consequence of faulty construction.” However, it is noted that while if the defects lead only to damage to the project itself, there is no occurrence, “if the building owner asserts damages to other property besides the construction itself, there is an ‘occurrence’ and ‘property damage.’” The judge further noted that were construction defects an occurrence, “shoddy work” would be rewarded by double pay, once by the homeowner and a second time by the insurer. Judge Kendall concluded that as McGrath had alleged damage to the contents of his house, AMCO had a duty to defend National Heritage.
She then looked at the issue of whether AMCO had a duty to indemnify. Should they pay the $601,570.50? Judge Kendall noted that “the duty to indemnify is narrower than the duty to defend.” The key point here was that once McGrath’s insurance carrier covered him for the damage to the contents of his house, “AMCO’s duty to defend ended.” Once McGrath “only sought damages for the natural consequences of faulty workmanship” there was no occurrence, hence nothing for AMCO to cover.
Judge Kendall granted a summary dismissal of AMCO’s claim that they had no duty to defend while upholding their claim that they had no duty to indemnify.
Read the court’s decision…
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Insurer in Bad Faith Due to Adjuster's Failure to Keep Abreast of Case Law
June 13, 2022 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court found that the insurer acted in bad faith when the claim was denied based on the adjuster's lack of knowledge of recent case law in Washington. Sec. Nat'l Ins. Co. v. Constr. Assocs. of Spokane, 2022 U.S. Dist. LEXIS 53533 (E.D. Wash. March 24, 2022).
Construction Associates of Spokane was a general contractor hired for a project at the Paulsen Building in Spokane. Construction Association hired a subcontractor, Merit Electric, for whom Mark Wilson worked. Wilson was seriously injured on August 20, 2016. He sued the Construction Associates along with other defendants three years later.
Construction Associates tendered to Merit Electric's broker, Alliant Insurance Services, Inc. Alliant forward the tender to Security National. The tender letter included a certificate of insurance issued by Alliant to Contractor Associates on September 3, 2019 and the subcontract with Merit. The subcontract required Merit to maintain CGL coverage with limits of $1 million. Further, the subcontractor was to issue certificate of insurance to the Contractor.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
