Consultant Says It's Time to Overhaul Construction Defect Laws in Nevada
February 07, 2013 —
CDJ STAFFRandi Thompson, a Republican political and media consultant, told the Reno Gazette-Journal what she wished Governor Brian Sandoval had said during his recent State of the State address in Nevada. Construction defect litigation was one of the issues that Ms. Thompson said that Governor Sandoval should have addressed. Thompson said that the governor "should have said it's time to get rid of Nevada's horrid construction defect laws." Ms. Thompson said that "these laws extort money from small business subcontractors who likely had nothing whatsoever do to with any real or perceived defect." She attributed the ongoing construction defect scandal in Las Vegas to "bad law."
Ms. Thompson said that these issues are unlikely to be addressed, because "the Democrats control both houses in the Legislature" and the issues are "sacred cows to the Democrats' constituents."
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Mississippi Supreme Court Addresses Earth Movement Exclusion
December 09, 2019 —
Anthony Hatzilabrou - Traub LiebermanRecently, the Mississippi Supreme Court held that structural damages to the foundation of an insured’s home came within the earth movement exclusion in a homeowner’s policy, notwithstanding a provision in the policy which provided coverage for water damage resulting “from accidental discharge or overflow of water … from within … [p]lumbing, heating, air condition or household appliance.”
In Mississippi Farm Bureau Cas. Ins. Co. v. Smith, 264 So. 3d 737 (Miss. 2019), the appellee, Smith, filed a lawsuit against her homeowner's insurance company, Mississippi Farm Bureau Casualty Insurance Company (“Farm Bureau”) for its refusal to pay for repairs to the foundation of Smith’s home. Smith alleged that the refusal to pay for repairs amounted to breach of contract and asserted claims for bad faith and tortious breach of contract. In response, Farm Bureau filed a motion for summary judgment on the basis of the policy’s earth-movement exclusion, which provided that Farm Bureau “did not insure for loss caused directly or indirectly by…Earth Movement…[which] means…[a]ny other earth movement including earth sinking, rising or shifting... caused by or resulting from human or animal forces.” Smith filed a cross-motion for partial summary judgment on the basis that the earth-movement exclusion did not preclude coverage because her insurance policy also contained a clause expressly covering water damage.
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Anthony Hatzilabrou, Traub LiebermanMr. Hatzilabrou may be contacted at
thatzilabrou@tlsslaw.com
Sustainability Puts Down Roots in Real Estate
January 27, 2020 —
Stephanie Amaru - Gravel2Gavel Construction & Real Estate Law BlogSustainability has evolved from a passing trend or niche preference into an undeniable, growing driver of the real estate market. This is particularly true as millennials comprise an increasing proportion of the workforce, home-buying population, and individuals influencing the future of real estate development in the United States.
If anything illustrates the significance of younger generations’ increasing interest in sustainability, it is the Global Climate Strike that drew participation of many thousands of young people, with 2,500 events scheduled in over 150 countries. In New York City, 1.1 million public school students were excused from school to join the strike in an event planned to precede the UN Summit, which itself was intended to push countries toward a commitment to faster transition to renewable energy and stricter climate targets. While both policymakers and citizens of previous generations have been split on their willingness to address global climate change with urgency, younger generations are feeling a stronger sense of responsibility for curbing the world’s trajectory towards a climate catastrophe, which will be inherited by them and their children. This has manifested in action that promotes awareness of and political action with respect to these issues—such as the Global Climate Strike—as well as evolving habits and preferences in both consumer goods and real estate.
Greener Space
In recent years, real estate developers have recognized that there is a market for “greener” developments that reduce annual expenditures on buildings, whether it be through small spaces requiring less electricity and promoting energy efficiency, or through renewable energy options such as solar photovoltaic power. Some real estate developers have chosen to install these options themselves, while others seek out sustainable financing options to cover the costs of renewable energy. If installing renewable energy is too costly, real estate developers will seek out more cost-effective locations for their brick-and-mortar operations.
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Stephanie Amaru, PillsburyMs. Amaru may be contacted at
stephanie.amaru@pillsburylaw.com
Breach Of Duty of Good Faith And Fair Dealing Packaged With Contract Disputes Act Claim
March 27, 2023 —
David Adelstein - Florida Construction Legal UpdatesAn interesting opinion on a motion to dismiss came out of the United States Court of Federal Claims dealing with the claim that the government breached its duty of good faith and fair dealing in administering the prime contract. The contractor’s argument was that the government breached its duty of good faith and fair dealing by denying the contractor’s claim under the Contract Disputes Act (CDA). This was a creative claim and argument that deserves consideration because it tied in the contracting officer’s denial of the CDA claim for additional money with a breach of the duty of good faith and fair dealing.
In this case, Aries Construction Corp. v. U.S., 2023 WL 2146598 (Fed. Cl. 2023), a prime contractor was hired for a water pipeline construction project. The contractor encountered unexpected difficult site conditions that required additional equipment and labor. The contractor informed the contracting officer and alleged it was instructed to proceed with the additional equipment and labor. The contractor submitted a claim under the CDA but the contracting officer denied the claim. The contractor pursued the claim in the United States Court of Federal Claims arguing the government breached the contract and, of interest, breached its duty of good faith and fair dealing.
The government moved to dismiss the breach of good faith and fair dealing claim arguing that besides failing to state a cause of action the Court of Federal Claims had no jurisdiction because the breach of the duty of good faith and fair dealing was not properly presented to the contracting officer under the CDA. The Court of Federal Claims denied the government’s motion.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Infrastructure Money Comes With Labor Law Strings Attached
July 25, 2022 —
Cheryl Behymer, Patrick M. Dalin & Collin Cook - Construction ExecutiveThe federal government has committed to spending $1 trillion under the Infrastructure Investment and Jobs Act on nationwide construction, alteration and repair projects. Billions of dollars have already been deployed on projects to improve highways, bridges, airports, electrical infrastructure and drinking water distribution, and the government is poised to spend the remaining funds on a massive infrastructure build-out over the next five years. While federal government contracts may provide a lucrative and reliable stream of revenue for construction companies, contractors must be prepared to comply with special requirements, particularly under the labor and employment laws enforced by the U.S. Department of Labor (USDOL).
1. The Davis Bacon Act Requires Payment of Prevailing Wages and Fringe Benefits
The Davis Bacon Act (DBA) applies to most federally funded and federally assisted projects for construction, alteration or repair work. This law requires all contractors and subcontractors on a covered project to pay all “laborers or mechanics” the wages and fringe benefits that “prevail” in the locality where the work is being performed. The USDOL determines what the prevailing wages and fringe benefits are for each trade and publishes them in wage determinations that should be issued to all contractors on the project.
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Cheryl Behymer, Patrick M. Dalin & Collin Cook, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Time is of the Essence, Even When the Contract Doesn’t Say So
January 11, 2021 —
Christopher G. Hill - Construction Law MusingsWelcome to 2021! As often happens here at Construction Law Musings, the year starts with a few posts on notable construction law cases that dropped in the past year or so. Not only does this review hopefully help you keep up, but helps me keep up with the latest developments (one of the reasons why I keep blogging).
The first of these cases is Appalachian Power Co. v. Wagman Heavy Civil, Inc. out of the Western District of Virginia federal court. In this case, Wagman Heavy Civil, Inc. (“Wagman”) and the Virginia Department of Transportation (“VDOT”) contracted for the design and construction of a highway interchange project (the “Project”). Wagman and the Appalachian Power Company (“APCO”) entered into a written contract (the “Written Contract”) for APCO to remove and relocate its utility structures (the “Work”) in order to facilitate construction for the Project.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Quick Note: Subcontractor Payment Bond = Common Law Payment Bond
February 16, 2017 —
David Adelstein – Florida Construction Legal UpdatesWhat is a common law payment bond? A common law payment bond is a bond not required or governed by a statute. For example, if a prime contractor provides the owner a payment bond, that bond will be a statutory payment bond. On the other hand, if a subcontractor provides the general contractor with a payment bond, that bond will be a common law payment bond. Why? Because there is not a statute that specifically governs the requirements of a subcontractor’s payment bond given to a general contractor. The subcontractor’s payment bond is aimed at protecting the general contractor (and the general contractor’s payment bond) in the event the subcontractor fails to pay its own subcontractors and suppliers. The subcontractor’s payment bond will generally identify that claimants, as defined by the bond, are those subcontractors and suppliers the subcontractor has failed to pay. This common law payment bond is not recorded in the public records so sometimes it can be challenging for a claimant (anyone unpaid working under the subcontractor that furnished the bond) to obtain a copy of the bond. With that said, an unpaid claimant should consider pursuing a copy of this bond in certain situations, particularly if it may not have preserved a claim against the general contractor’s statutory payment bond.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Reasonableness of Denial of Requests for Admission Based Upon Expert’s Opinions Depends On Factors Within Party’s Understanding
February 27, 2019 —
Stephen M. Tye & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPIn Orange County Water District v. The Arnold Engineering Company (D070763), the Fourth Appellate District examined the criteria for evaluating the reasonableness of a parties’ denial of requests for admission (RFA’s) based upon their expert’s opinions and the proof required to recover costs for unreasonable denials.
In Orange County Water District, the Orange County Water District (the District) sued several current and former owners and operators of industrial sites, including The Arnold Engineering Company (Arnold), to recover expenses associated with groundwater cleanup efforts intended to address groundwater contamination caused by volatile organic compounds (VOC’s) and other chemicals. Over six years, the parties conducted extensive discovery, including document productions, depositions, and soil sampling and monitoring.
Reprinted courtesy of
Stephen M. Tye, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Tye may be contacted at stye@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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