Remote Work Issues to Consider in Light of COVID-19
March 23, 2020 —
Philip K. Lem - Payne & FearsMany employers have elected to implement a remote work policy in light of the COVID-19 coronavirus outbreak. If you are one of them, you should consider the following as you transition your workforce to a remote working environment.
Preliminary Steps
The first step prior to implementation is ensuring that you have sufficient technological infrastructure and capabilites. You should assess what types of equipment (e.g., desktop computers, laptops, phones, printers, and office supplies) your employees will need to work remotely, and ensure that there is sufficient inventory and that employees can gain access to the equipment. You should also confirm that you have data security measures in place and brief employees on best practices for security and protection of data. You should refer employees to your organization’s technology policy regarding the safeguarding of data. If none exist, you should strongly consider creating and implementing one. One of the more important aspects of any policy is restrictions on where employees may work remotely. For example, some employers prohibit employees from working remotely on public wifi networks due to security concerns. Whether these or other policies are right for your organization depends on the nature of your work and data, security measures you have in place, and your risk tolerance.
Beyond technology issues, you should prepare a checklist of necessary work items and materials that employees will need to perform their jobs remotely. You should also clearly communicate to employees which items may be removed from the workplace and taken home and which should remain.
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Philip K. Lem, Payne & FearsMr. Lem may be contacted at
pkl@paynefears.com
Alleging and Proving a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) Claim
December 13, 2021 —
David Adelstein - Florida Construction Legal UpdatesWhen it comes to construction disputes, a Florida Deceptive and Unfair Trade Practices Act (known by its acronym “FDUTPA”) claim is not commonly asserted. A FDUTPA claim is a statutory claim under Florida Statute s. 501.201 en seq. This claim is NOT easy to prove, particularly in the construction context. Sometimes, a party will assert a FDUTPA claim to create a basis for attorney’s fees; however, that basis cuts BOTH ways, i.e., you can be liable for fees if you fail to prove the FDUTPA claim. In a construction dispute, a FDUTPA claim is one that really should be pled with caution after a party understands and fully considers what it MUST prove including the all-important consideration of how actual damages are determined under FDUTPA, which requires an actual loss. Nevertheless, it is good to know what you need to prove to support a FDUTPA claim in case you believe you have facts that can support a FDUTPA claim and actual damages under FDUTPA (known as benefit-of-the-bargain damages).
Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com
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Ontario Court of Appeal Clarifies the Meaning of "Living in the Same Household" for Purposes of Coverage Under a Homeowners Policy
April 10, 2019 —
Stella Szantova Giordano - Saxe Doernberger & Vita, P.C.As all insurance coverage attorneys know, how courts interpret certain words and phrases in insurance policies is significant since one word can make the difference between a claim being covered or not. On January 28, 2019, the Court of Appeal for Ontario, in the Ferro v. Weiner1 decision, clarified the jurisprudence on the meaning of “living in the same household” in the context of homeowners policies.
Background Facts
Ms. Enid Weiner owned a lakeside home which was insured under a homeowners policy through Intact Insurance Company (the “Intact Policy”). The Policy listed only Enid Weiner as the Named Insured, but provided coverage to her relatives “while living in the same household” for liability for unintentional bodily injury arising from an insured’s “personal actions anywhere in the world.” Although the lake house was used as a vacation home when Ms. Weiner’s children were small, it was her primary residence for about ten years before she moved into a nursing home. While she never permanently moved back, her three grown children and their families used the house as a cottage, with Enid occasionally accompanying them.
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Stella Szantova Giordano, Saxe Doernberger & Vita, P.C.Ms. Giordano may be contacted at
ssg@sdvlaw.com
Contractor’s Burden When It Comes to Delay
October 26, 2020 —
David Adelstein - Florida Construction Legal UpdatesWhen a contractor is challenging the assessment of liquidated damages, or arguing that it is entitled to extended general conditions, the contractor bears a burden of proof to establish there were excusable delays that impacted the critical path and, in certain scenarios, the delays were not concurrent with contractor-caused delay:
When delays are excusable, a contractor is entitled to a time extension, such that the government may not assess liquidated damages for those delays. The government bears the initial burden of proving that the contractor failed to meet the contract completion date, and that the period of time for which the government assessed liquidated damages was correct. If the government makes such a showing, the burden shifts to the contractor to show that its failure to timely complete the work was excusable. To show an excusable delay, a contractor must show that the delay resulted from “unforeseeable causes beyond the control and without the fault or negligence of the Contractor.” “In addition, the unforeseeable cause must delay the overall contract completion; i.e., it must affect the critical path of performance.” Further, the contractor must show that there was no concurrent delay.
Ken Laster Co., ASBCA No. 61292, 2020 WL 5270322 (ASBCA 2020) (internal citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
A Lack of Sophistication With the Construction Contract Can Play Out In an Ugly Dispute
November 07, 2022 —
David Adelstein - Florida Construction Legal UpdatesThere are times where a lack of sophistication can come back to haunt you. This is not referring to a lack of sophistication of the parties. The parties, themselves, could be quite sophisticated. This is referring to a lack of sophistication with the construction contract forming the basis of the relationship. While parties don’t always want to buy into the contract drafting and negotiation process, it is oftentimes the first document reviewed. Because contract terms and conditions are important. They govern the relationship, the risk, scope, amount, and certain outcomes with disputes. However, a lack of sophistication can play out when that contract that should govern the relationship, the risk, the scope, the amount, and certain outcomes doesn’t actually do that, or if it does, it does it poorly. An example of how bad a dispute can play out when it comes to the lack of sophistication on the front end is Avant Design Group, Inc. v. Aquastar Holdings, LLC, 2022 WL 6852227 (Fla. 3d DCA 2022), where a cost-plus contract was treated as a lump sum contract.
Here, an owner planned to perform an extensive interior build-out to a residential unit. The owner had an out-of-country architect; because the architect was not licensed in Florida, the owner hired a local architect/designer to oversee construction and obtain goods and services for the residential interior build-out. The contract was nothing but a proposal of items and costs. The proposal stated the owner “would pay the cost of goods and services of the vendors, plus pay a ‘20% Interior Design & Administrative Fee’” to the local designer. Avant Design Group, 2022 WL at *1. The proposal further stated, “This preliminary budget of the Client’s construction costs include [sic] anticipated costs for construction materials, labor and sales tax. Any other cost, including but not limited to freight, cartage, shipping, receiving, storage and delivery are not included in the preliminary budget and will be invoiced separately.” Id., n.2.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Construction Continues To Boom Across The South
September 09, 2019 —
Louise Poirier - Engineering News-RecordContractors reported revenue growth of $2 billion in 2018 and are optimistic heading into the second half of 2019. The looming threat of a downturn, though, weighs heavy on some industry leaders’ minds as does the constant threat of workforce shortages.
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Louise Poirier, Engineering News-Record
Ms. Poirier may be contacted at poirierl@enr.com
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Seller Cannot Compel Arbitration for Its Role in Construction Defect Case<
March 01, 2012 —
CDJ STAFFThe buyer of a leaky home in Venice, California cannot be compelled to arbitration with the seller in a construction defect lawsuit, according to a decision in Lindemann v. Hume, which was heard in the California Court of Appeals. Lindemann was the trustee of the Schlei Trust which bought the home and then sued the seller and the builder for construction defects.
The initial owner was the Hancock Park Trust, a real estate trust for Nicholas Cage. Richard Hume was the trustee. In 2002, Cage agreed to buy the home which was being built by the Lee Group. Cage transferred the agreement to the Hancock Park Trust. Hancock had Richard Nazarin, a general contractor, conduct a pre-closing walk through. They also engaged an inspector. Before escrow closed, the Lee Group agreed to provide a ten-year warranty “to remedy and repair any and all damage resulting from water infiltration, intrusion, or flooding due to the fact that the door on the second and third floors of the residence at the Property were not originally installed at least one-half inch (1/2”) to one inch (1”) above the adjacent outside patio tile/floor on each of the second and third floors.”
Cage moved in and experienced water intrusion and flooding. The Lee Group was unable to fix the problems. Hume listed the home for sale. The Kamienowiczs went as far as escrow before backing out of the purchase over concerns about water, after the seller’s agent disclosed “a problem with the drainage system that is currently being addressed by the Lee Group.”
The house was subsequently bought by the Schlei Trust. The purchase agreement included an arbitration clause which included an agreement that “any dispute or claim in Law or equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration.” The warranty the Lee Group had given to Hancock was transferred to the Schlei trust and Mr. Schlei moved into the home in May 2003.
Lindemann enquired as to whether the work done would prevent future flooding. Nazarin sent Schlei a letter that said that measures had been taken “to prevent that situation from recurring.” In February, 2004, there was flooding and water intrusion. Lindemann filed a lawsuit against the Lee Group and then added the Hancock Park defendants.
The Hancock Park defendants invoked the arbitration clause, arguing that Lindemann’s claims “were only tangentially related to her construction defect causes of action against the Lee Group.” On June 9, 2010, the trial court rejected this claim, ruling that there was a possibility of conflicting rulings on common issues of law. “With respect to both the developer defendants and the seller defendants, the threshold issue is whether there was a problem with the construction of the property in the first instance. If there was no problem with the construction of the property, then there was nothing to fail to disclose.” Later in the ruling, the trial court noted that “the jury could find there was no construction defect on the property, while the arbitration finds there was a construction defect, the sellers knew about it, and the sellers failed to disclose it.” The appeals court noted that while Hancock Park had disclosed the drainage problems to the Kamienowiczs, no such disclosure was made to Sclei.
The appeals court described Hancock Park’s argument that there is no risk of inconsistent rulings as “without merit.” The appeals court said that the issue “is not whether inconsistent rulings are inevitable but whether they are possible if arbitration is ordered.” Further, the court noted that “the Hancock Park defendants and the Lee Group have filed cross-complaints for indemnification against each other, further increasing the risk of inconsistent rulings.”
The court found for Lindemann, awarding her costs.
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Official Tried to Influence Judge against Shortchanged Subcontractor
February 10, 2012 —
CDJ STAFFA contractor testified in the trial of former Cuyahoga County Commissioner Jimmy Dimora. According to Fox 8 in Cleveland, Ohio, Sean Newman, the president of Letter Perfect testified that his company was a subcontractor on the reconstruction of the locker rooms at the Cleveland Browns Stadium. Newman said his company was paid only $400,000 of their $650,000 bid. When Letter Perfect sued the contractor, D.A.S. Construction, Dimora called the judge to influence her to rule in favor of D.A.S.
The judge in the earlier case, Bridgett McCafferty, has been found guilty of lying to the FBI during their investigation and is serving a 14-month prison sentence.
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