Why Construction Law- An Update
May 07, 2015 —
Christopher G. Hill – Construction Law MusingsBack in 2009, only a year or so after my first post here at Musings, I posted on why I’m in the field of construction law. Well, a lot has happened in the over 5 years since then, not the least of which is my move to solo practice in July of 2010 and the later certification as a mediator. As I sit here, I look back at the passage of time and the events between my last thoughts on this subject and now and wonder if my thoughts have changed?
Frankly, not much has changed as far as my attitude toward the practice of construction law. Despite my kids occasionally rolling their eyes when I talk about a case of interest to me and their sometimes moniker for me as a “dirt lawyer,” I continue to find the representation of the construction professionals that I call clients and friends to be fulfilling and worthwhile. Even in the face of criticisms that we lawyers cause more problems that we solve, I firmly believe that I and other good construction lawyers can and do help avoid and anticipate more problems than I cause.
As one of the few solo construction attorneys here in the Richmond area, if anything, I am more involved in the construction community. Between my continued and even increased involvement with the AGC of Virginia and my more recent appointment to the board of the Virginia State Bar‘s Construction Law and Public Contracts Section, I have gained even more insight into the workings of the legal and business landscapes of construction. With each new piece of information gained by such involvement, I see another side to the business of construction that I may not have thought of.
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Christopher G. Hill, Construction Law MusingsMr. Hill may be contacted at
chrisghill@constructionlawva.com
The Regulations on the Trump Administration's Chopping Block
August 02, 2017 —
Pam Radtke Russell - Engineering News-RecordThe Trump administration's next big step toward repealing the controversial Waters of the U.S. (WOTUS) rule is official, with a proposal to rescind the Obama-era regulation appearing in the Federal Register on July 27, setting off a relatively short comment period that will end Aug. 28.
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Pam Radtke Russell, ENRMr. Russell may be contacted at
Russellp@bnpmedia.com
The Washington Supreme Court Rules that a Holder of a Certificate of Insurance Is Entitled to Coverage
March 09, 2020 —
Sally Kim & Kyle Silk-Eglit - Gordon & Rees Insurance Coverage Law BlogThe Washington courts have historically found that the purpose of a certificate of insurance is to advise others as to the existence of insurance, but that a certificate is not the equivalent of an insurance policy. However, the Washington State Supreme Court recently held that, under certain circumstances, an insurer may be bound by the representations that its insurance agent makes in a certificate of insurance as to the additional insured (“AI”) status of a third party. Specifically, in T-Mobile USA, Inc. v. Selective Ins. Co. of America, the Supreme Court found that where an insurance agent had erroneously indicated in a certificate of insurance that an entity was an AI under a liability policy, that entity would be considered as an AI based upon the agent’s apparent authority, despite boilerplate disclaimer language contained in the certificate. T-Mobile USA, Inc. v. Selective Ins. Co. of America, Slip. Op. No. 96500-5, 2019 WL 5076647 (Wash. Oct. 10, 2019).
In this case, Selective Insurance Company of America (“Selective”) issued a liability policy to a contractor who had been retained by T-Mobile Northeast (“T-Mobile NE”) to construct a cell tower. The policy conferred AI status to a third party if the insured-contractor had agreed in a written contract to add the third party as an AI to the policy. Under the terms of the subject construction contract, the contractor was required to name T-Mobile NE as an AI under the policy. T-Mobile NE was therefore properly considered as an AI because the contractor was required to provide AI coverage to T-Mobile NE under the terms of their contract.
However, over the course of approximately seven years, Selective’s own insurance agent issued a series of certificates of insurance that erroneously identified a different company, “T-Mobile USA”, as an AI under the policy. This was in error because there was no contractual requirement that T-Mobile USA be added as an AI. Nonetheless, the certificates stated that T-Mobile USA was an AI, and they were signed by the agent as Selective’s “authorized representative.”
Reprinted courtesy of
Sally S. Kim, Gordon & Rees and
Kyle J. Silk-Eglit, Gordon & Rees
Ms. Kim may be contacted at sallykim@grsm.com
Mr. Silk-Eglit may be contacted at ksilkeglit@grsm.com
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Oracle Sues Procore, Claims Theft of Trade Secrets for ERP Integration
November 25, 2024 —
Jeff Yoders - Engineering News-RecordOracle, Inc., has sued Procore in federal court in Northern California, accusing the construction management platform provider of stealing confidential information related to developing enterprise resource planning products for contractors.
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Jeff Yoders, ENRMr. Yoders may be contacted at
yodersj@enr.com
COVID-19 Damages and Time Recovery: Contract Checklist and Analysis
April 27, 2020 —
Patrick J. Greene, Jr. - Peckar & AbramsonThis Alert explores the contract provisions and related rights that are likely to govern time and compensation adjustments for COVID-19 impacts. As parties begin analyzing such rights, this is intended to serve as a useful guide and checklist.
Analysis of relevant contract provisions should start with careful consideration of the specific impacts that have been experienced and the causes of those impacts. The nature of the impact (delay, extra work, disruption, etc.) and the causes of such impacts (owner direction, government order, etc.) will generally govern the analysis and resulting course of action. Listing or creating a matrix of impacts and their causes may be an effective working tool.
Essentially, there are five primary impacts that will likely require critical analysis under the relevant contract provisions, and notably, more than one impact may be present:
a) complete or partial suspension of work,
b) additional work or requirements,
c) added cost,
d) delay, and
e) disruption.
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Patrick J. Greene, Jr., Peckar & AbramsonMr. Greene may be contacted at
pgreene@pecklaw.com
OSHA Updates: You May Be Affected
July 19, 2017 —
Louis “Dutch” Schotemeyer – Newmeyer & Dillion LLPGovernor Brown Signs Legislation Increasing Cal/OSHA Fines
Cal/OSHA has increased its maximum fines for the first time in more than twenty years pursuant to legislation recently signed into law by Governor Brown. The changes nearly double the maximum fines and have brought California in line with the Federal standard. The increase in fines will not be isolated to this year, as fines will now be automatically increased annually based on the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U). Additionally, any employer who repeatedly violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, can no longer receive any adjustment of a penalty assessed based on the good faith or the history of previous violations. Such adjustments were previously commonplace.
Specific increases are listed below (all increases refer to maximum fines, Cal/OSHA has discretion as to the amount of the fine when issuing the citation):
- Section 6427 of the Labor Code was amended to increase fines, not of a serious nature, from $7,000 for each violation to $12,471 for each violation.
- Section 6429 of the Labor Code has increased fines for repeat violations; raising the maximum fine from $70,000 to $124,709 for each violation. Additionally, Section 6429 also raised the minimum fine for repeat violations from $5,000 to $8,908.
- Section 6431 raised fines for posting or recordkeeping violations from $7,000 to $12,471 per violation.
Full text of the penalty section of the labor code may be found
here
California OSHA Emergency Action Plan elements revised; California now more consistent with Federal Standards
Revisions to General Safety Orders section 3220(b) became effective on June 5, 2017 and contain two minor changes for California employers with regards to Emergency Action Plans (EAP).
The first change requires that an employer’s EAP be more detailed in describing the type of evacuation that is to be performed, not just the route for an evacuation. The previous element of the EAP simply required that the plan contain, “[e]mergency escape procedures and emergency escape route assignments.” The current element of the EAP requires that, “[p]rocedures for emergency evacuation, including type of evacuation and exit route assignments,” be identified.
The second change clarifies the language surrounding employees performing rescue or medical duties. Previously the only requirement in the EAP regarding rescue and medical duties was for employees that performed rescue and medical duties. The current version requires that the EAP contain, “[p]rocedures to be followed by employees performing rescue or medical duties. The use of the word and created potential gaps in plans as it is likely that employees may not be performing both rescue and medical duties, instead performing just rescue or medical duties. Plans must now include procedures to be followed by employees who perform either rescue or medical duties.
It is recommended that your EAP be in writing and updated to comply with the revised General Safety Orders section 3220. The full text of General Safety Orders section 3320 can be seen
here. Please contact us if you would like further details regarding your Emergency Action Plan.
Deadline for Electronic Submission of OSHA 300 Log Records for Injuries and Illnesses Delayed
On May 12, 2016, the Federal Occupational Safety and Health Administration (OSHA) published a rule entitled “Improve Tracking of Workplace Injuries and Illnesses” which required certain employers subject to Federal OSHA regulations to submit the information from their completed 2016 Form 300A to OSHA via electronic submission no later than July 1, 2017. On June 28, 2017, OSHA, via a
Notice of Proposed Rule Making, has proposed a December 1, 2017 deadline for the electronic reporting; the electronic reporting system is scheduled to be available on August 1, 2017.
Per the California Department of Industrial Relations, California employers are not required to follow the new requirements and will not be required to do so until "substantially similar" regulations go through formal rulemaking, which would culminate in adoption by the Director of the Department of Industrial Relations and approval by the Office of Administrative Law.
Cal/OSHA drafted a proposed rulemaking package to conform to the revised federal OSHA regulations by amending the California Code of Regulations, title 8, sections 14300.35, 14300.36, and 14300.41; these are currently under review with the State.
It is currently unclear what, if any, impact the delay by OSHA will have on the proposed amendments to the California Code.
We will keep you posted as to the changes in California recordkeeping requirements. Please contact Louis “Dutch” Schotemeyer with any questions regarding Cal OSHA or your safety program. Dutch is located at Newmeyer & Dillion’s Newport Beach office and can be reached at dutch.schotemeyer@ndlf.com or by calling 949.271.7208.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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New Tariffs Could Shorten Construction Expansion Cycle
March 22, 2018 —
Anirban Basu - Construction Executive, A publication of Associated Builders and Contractors. All Rights Reserved.The Trump administration’s recent focus on tariffs on steel and aluminum has largely been in the context of potential trade wars, discordant views regarding globalism, renegotiating NAFTA, and exemptions for key allies and trading partners such as Canada and Mexico. But there is a broader context that implicates not only the construction industry and materials prices, but also the future trajectory of the U.S. economy.
The tariffs come during the ninth year of U.S. economic expansion. The economy gained momentum for much of 2017 and enters 2018 with considerable strength. The broadening of the U.S. economic expansion from merely being consumer led to also being associated with surging manufacturing output, construction activity, rising exports and business investment is attributable to many factors, including elevated business confidence and recently enacted tax reform.
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Anirban Basu, Sage Policy GroupMr. Basu may be contacted at
basu@abc.org
US Appeals Court Halts OSHA Vaccine Mandate, Unclear How Long
November 15, 2021 —
Debra K. Rubin & Jeff Yoders - Engineering News-RecordThe U.S. Court of Appeals in New Orleans on Nov. 6 stayed the Biden administration's requirement that workers at U.S. companies with at least 100 employees be vaccinated against COVID-19 or be tested weekly, citing potential "grave statutory and constitutional" issues raised by opponents of the US Occupational Safety and Health Administration's emergency temporary standard announced on Nov. 4.
Reprinted courtesy of
Debra K. Rubin, Engineering News-Record and
Jeff Yoders, Engineering News-Record
Ms. Rubin may be contacted at rubind@enr.com
Mr. Yoders may be contacted at yodersj@enr.com
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