Safeguarding the U.S. Construction Industry from Unfair Competition Abroad
November 07, 2022 —
Ric Macchiaroli - Gravel2Gavel Construction & Real Estate Law BlogIn April 2015, the U.S. International Trade Commission (ITC) issued an exclusion order prohibiting the importation of certain foreign-made crawler cranes into the United States for a period of at least 10 years. That order was the result of a 20-month investigation by the ITC, initiated by a Wisconsin-based crane manufacturer based on allegations of patent infringement and trade secret misappropriation by a China-based company. Defined by powerful injunctive remedies, unique rules, and a lightning-fast docket, the ITC can help protect American industry from unfair acts in the importation of articles into the United States. This post explores the traits that make the ITC an attractive venue for potential complainants.
ITC Site Plan
The ITC is a specialized trade court located in Washington, D.C., that has broad authority to investigate and remedy unfair trade practices. One of the ITC’s primary functions is to conduct unfair import investigations, also known as “section 337” investigations, after the authorizing statute. A section 337 investigation can be instituted based on any number of unfair acts, including, but not limited to, patent infringement (utility and design), registered and common law trademark infringement, copyright infringement (including violations of the Digital Millennium Copyright Act), trade dress infringement, and trade secret misappropriation. Business torts such as passing off, false advertising, and tortious interference with business relations have also formed the bases of investigations.
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Ric Macchiaroli, PillsburyMr. Macchiaroli may be contacted at
ric.macchiaroli@pillsburylaw.com
Appeals Court Affirms Carrier’s Duty to Pay Costs Taxed Against Insured in Construction Defect Suit
November 03, 2016 —
Jesse Howard Witt – The Witt Law FirmOne of the key reasons for builders to maintain liability insurance is to cover the cost of hiring defense counsel and paying litigation costs in the event of a construction defect lawsuit. If a builder loses a lawsuit, it will typically be responsible for paying the plaintiff’s litigation costs. Today, the Colorado Court of Appeals clarified that the “supplementary payments” section of a standard Commercial General Liability (CGL) insurance policy covers such costs, even if the carrier has reserved the right to dispute whether it has a duty to indemnify the actual damages awarded. This may seem counter-intuitive, insofar as a carrier may owe costs even if it does not cover the underlying loss, but the court’s decision is consistent with the plain language of the CGL form that most carriers use.
Reprinted courtesy of
Jesse Howard Witt, The Witt Law Firm
Mr. Witt may be contacted at his website www.witt.law
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California Complex Civil Litigation Superior Court Panels
December 31, 2014 —
Richard H. Glucksman, Esq., Jon A. Turigliatto, Esq., and David A. Napper, Esq. – Chapman Glucksman Dean Roeb & Barger BulletinThe Complex Civil Litigation Program is relatively new as it has only existed in California
since 2000. Complex divisions dedicate courtrooms solely for litigation of complex civil
cases that require exceptional judicial management including construction defects, antitrust,
securities, toxic torts, mass torts, and class actions. Complex civil courtrooms help the trial
court operate in a more efficient, expeditious, and effective manner. A complex court
reduces costs for litigants by streamlining motion practice and expeditiously resolving
discovery disputes.
Not all counties have dedicated complex civil divisions. For those that do, each county has
its own local rules, and some complex divisions have their own particular set of rules. The
Judicial management of complex cases begins early, and is applied continuously and actively
with the idea that final resolution be expedited as much as possible. In focusing on
cooperation amongst the parties to achieve these goals, often requiring joint statements to
the court and a prohibition on discovery motions until after the parties have formally metand-
conferred on the issues. Moreover, complex cases are centralized and are assigned to
one highly skilled Judge for all purposes.
The first six California counties to create a Complex Civil division include Alameda, Contra
Costa, Los Angeles, Orange, San Francisco, and Santa Clara. Riverside County Superior
Court is the most recent California County to add a Complex division, effective January 2015.
Riverside county Superior Court’s Complex department consists of ten civil judges, seven of
which are in the main courthouse with Riverside. Riverside county expects to consolidate all
complex civil litigation into one courtroom by January 2015. Riverside county Judge Sharon
Waters state that "[i]t's been something that I personally have felt has been long overdue"
and that "[t]he idea is that put it with one judge and let him or her develop the expertise."
Judge Waters believes "[t]he potential value of establishing a complex litigation courtroom
[is that] it allows the judge to focus on the cases full time."1
As of October 2014, Riverside county had about 450 to 500 pending cases designated as
complex, over fifty percent (50%) of which involved construction defect matters. The sole
Judge who will preside over the complex cases has not yet been named.
1 Jolly, Vik. "Riverside to Shift Complex Civil Cases to 1 Courtroom." Los Angeles Daily Journal (October 13,
2014)
Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys
Richard H. Glucksman,
Jon A. Turigliatto and
David A. Napper
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com;
Mr. Turigliatto may be contacted at jturigliatto@cgdrblaw.com;
and Mr. Napper may be contacted at dnapper@cgdrblaw.com
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Noteworthy Construction Defect Cases for 1st Qtr 2014
April 30, 2014 —
Beverley BevenFlorez-CDJ STAFFJohn A. Husmann and Jocelyn F. Cornbleet of BatesCareyLLP analyzed several noteworthy construction defect cases that have already occurred in 2014, as published in Law360. The cases involved “the ‘occurrence’ requirement, contractual liability exclusion and ‘other insurance’ clauses.” Husmann and Cornbleet summarized Owners Insurance Co. v Jim Carr Homebuilder LLC (Alabama), Pennsylvania National Mutual Casualty Insurance Co. v. Snider (also Alabama), Woodward LLC v. Acceptance Indemnification Insurance Co. (Mississippi), and others.
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California’s Right To Repair Act Is The Sole Remedy For Damages For Construction Defects In New Residential Construction
March 14, 2018 —
Mark Johnson – Real Estate Litigation Blog The California Supreme Court ruled in
McMillin Albany LLC et al. v. The Superior Court of Kern County, (1/18/2018) 4 cal. 5th 241, that California’s Right to Repair Act, California Civil Code sections 895 et seq. (“Act”) is the sole remedy for construction defect claims for economic loss and property damages regarding new residential construction. The Act establishes a pre-litigation dispute resolution process that must be followed before filing a construction defect action for new residential construction purchased after January 1, 2003. The Act provides a builder with the right to attempt to repair construction defects before litigation is filed.
The
McMillin ruling resolved a split among two court of appeal decisions regarding the scope of the Act:
Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 and
Burch v. Superior Court [(2014) 223 Cal.App.4th 1411. Those cases held that the Act is not the exclusive remedy for construction defect lawsuits that allege property damage arising from new residential construction. Therefore owners of new residential construction where construction defects had caused property damage were not required to proceed under the Act and instead could proceed with common law claims.
McMillilin removes that option.
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Mark Johnson, Snell & WilmerMr. Johnson may be contacted at
majohnson@swlaw.com
Is Equipment Installed as Part of Building Renovations a “Product” or “Construction”?
April 10, 2019 —
Joshua Lane - Ahlers Cressman & Sleight PLLCA statute of repose terminates the right to file a claim after a specified time even if the injury has not yet occurred.[1] The construction statute of repose bars claims arising from construction, design, or engineering of any improvement upon real property that has not accrued within six years after substantial completion.[2] But what constitutes an “improvement upon real property” necessitating application of the six-year bar, and when does the bar NOT apply?
The Washington Court of Appeals recently addressed these questions in Puente v. Resources Conservation Co., Int’l.[3] There, the personal representative of the estate of Javier Puente sued several parties after Mr. Puente, an employee of a manufacturer, suffered fatal boric acid burns in 2012 while performing maintenance on a pump system installed at the manufacturer’s facility in 2002. The estate alleged claims of negligence and liability under the Washington Product Liability Act (WPLA).[4] The trial court granted summary judgment to defendants, concluding that the installed pump system constituted a statutory “improvement upon real property” and the six-year statute of repose applied. The estate appealed.
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Joshua Lane, Ahlers Cressman & Sleight PLLCMr. Lane may be contacted at
joshua.lane@acslawyers.com
Predicting the Future of Texas’s Grid Is a Texas-Sized Challenge
June 27, 2022 —
Nathaniel Bullard - BloombergA little more than a year after a paralyzing winter freeze, the Texas power market just experienced the stress of extreme heat. Last week, power prices in Houston briefly jumped above $5,000 per megawatt-hour as high temperatures coincided with a number of generators being offline for maintenance.
Yet a few days earlier, power prices in west Texas had been negative $883 dollars per megawatt-hour, because at the time wind generation was abundant and demand was low.
“Dynamic” is one way to describe the price swings within the Electric Reliability Council of Texas (Ercot), the grid that provides the majority of the state’s power. “Jarring” or “terrifying” might be other words for it, particularly for those buying power in the spot market.
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Nathaniel Bullard, Bloomberg
Consider the Risks Associated with an Exculpatory Clause
November 24, 2019 —
David Adelstein - Florida Construction Legal UpdatesAn exculpatory clause in a contract is a clause aimed at relieving another party from certain liability. A disclaimer and insulation from liability. Obviously, if you are the party relieving the other party from liability, you want to consider this risk including the potential enforceability of this risk if something goes wrong. If you are the party asking for the insulation from liability, you do not want to create an exculpatory provision that disclaims and insulates you of all liability arising from the contract as it may create an illusory effect – that the agreement is nothing but a naked promise on your end because your promise is fully disclaimed and you are insulated from liability if you break your promise. This could result in an unenforceable contract.
The validity of such an exculpatory clause was at-issue in Pier 1 Cruise Experts v. Revelex Corp., 2019 WL 3024618 (11thCir. 2019). Although not a construction dispute, the exculpatory clause in this case was with two fairly sophisticated parties and expressly insulated one of the contracting parties from “any…damages regardless of kind or type…whether in contract, tort (including negligence), or otherwise.” Pier 1 Cruise Experts, 2019 WL at *7. This is a powerful exculpatory clause because it could be broadly construed to insulate that party from its own breaches of the contract.
In Florida:
[A]n exculpatory clause is enforceable so long as (1) the contracting parties have equal bargaining power and (2) the clause’s provisions are clear and unambiguous. With respect to the latter requirement, ‘the intention to be relieved from liability [must be] made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.” In the same vein, exculpatory clauses are ‘strictly construed against the party seeking to be relieved of liability.’
Pier 1 Cruise Experts, 2019 WL at *7 (internal citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
