JAMS Announces Updated Construction Rules
June 21, 2021 —
JAMSIrvine, Calif. – JAMS, the largest private provider of
alternative dispute resolution (ADR) services worldwide, is pleased to announce it has revised and updated its
Construction Arbitration Rules & Procedures and
Expedited Construction Arbitration Rules & Procedures, effective June 1. These Rules were updated to reflect the latest developments and trends in
construction arbitration.
In response to the transition to virtual and hybrid proceedings, Rule 22 makes explicit the arbitrator’s full authority to conduct the hearing in person, virtually or in a combined form, as well as with participants in more than one geographic location. To support access to case documents throughout the proceedings, Rule 8 aligns electronic filing and service with the functionality of JAMS Access, a centralized, secure online case management platform.
Additional rules were created or revised to clarify and strengthen the authority of the arbitrator. Key changes include allowing an arbitrator to withhold approval of any intended change in party representation that could compromise the proceedings or the final award, to set a hearing without consulting a party that he or she reasonably believes will not participate and to permit a party to file a motion for summary disposition of a claim if the arbitrator believes that party has demonstrated the motion is likely to succeed.
About JAMS – Local Solutions. Global Reach.
Founded in 1979, JAMS is the largest private provider of alternative dispute resolution services worldwide. JAMS successfully resolves and manages business and legal disputes by providing efficient, cost-effective and impartial ways to overcome barriers at any stage of conflict. JAMS offers customized in-person, virtual and hybrid resolution services locally and globally through a combination of industry-specific experience, first-class client service, the latest technology and highly trained mediators and arbitrators.
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JAMS
Federal Magistrate Judge Recommends Rescission of Policies
February 12, 2024 —
Craig Rokuson - Traub LiebermanIn the recent case of Union Mut. Fire Ins. Co. v. 142 Driggs LLC, 2023 U.S. Dist. LEXIS 220393, Magistrate Judge Lois Bloom of the United States District Court for the Eastern District of New York recommended granting the insurer's default judgment and holding that of three policies issued to 142 Driggs LLC ("Driggs") be rescinded ab initio.
Driggs had represented on its insurance applications that it did not provide parking to anyone other than itself, tenants, and its guests at the subject insured premises. However, Union Mutual learned that Driggs had been renting out three garages to non-tenants. Second, Driggs represented that the mercantile square footage was around 1,000 square feet, when in actuality, it was larger than allowed under the policies.
Union Mutual provided underwriting guidelines in connection with its default motion, which state that "parking provided for anyone other than the insured, tenants and their guests," presents an "unacceptable risk." The guidelines also state that answering yes to any "preliminary application questions (which presumably included those regarding mercantile square footage and parking) is an "unacceptable risk." The court held that these guidelines supported a finding that Driggs made material misrepresentation and that Union Mutual relied on these misrepresentations in issuing the policies. The court, as such, recommended that the policies at issue be rescinded from inception.
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Craig Rokuson, Traub LiebermanMr. Rokuson may be contacted at
crokuson@tlsslaw.com
What Cal/OSHA’s “Permanent” COVID Standards Mean for Employers
March 06, 2023 —
Payne & Fears LLPEffective Feb. 3, 2023, California has implemented new, “permanent,” COVID-19 standards. The new regulations were adopted by Cal/OSHA on Dec. 15, 2022, but only became effective upon the review and final approval by the Office of Administrative Law. These non-emergency regulations—slated to remain in effect for two years—supplant the COVID-19 Prevention Emergency Temporary Standard (ETS) that have been in effect since early in the pandemic.
The non-emergency regulations abandon core parts of the ETS, include new definitions for key terms, and update requirements for important provisions. We discuss the primary changes below. The regulation itself is available online, as well as a copy provided by Cal/OSHA comparing the differences between the ETS and the new regulation.
An End to Exclusion Pay
The non-emergency regulations do not require employers to maintain exclusion pay (an excluded employee’s earnings, seniority, rights, and benefits). All that employers must do under the new regulations is inform confirmed COVID-19 cases and close contacts about potential COVID-19 benefits under federal or local laws (where applicable). This does not affect employees who may receive paid time off under other federal, state, and local laws, as well as through collective bargaining agreements or other employer policies.
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Payne & Fears LLP
Construction Defect Claim Not Timely Filed
January 27, 2020 —
Ryan M. Charlson - Florida Construction Law NewsIf construction defect claims are not timely filed, Florida Statutes provide design and construction companies with a formidable defense. As a case in point, a Miami-Dade Circuit Court Judge issued an Order granting summary judgment based on Fla. Stat. § 95.11(3)(c), Florida’s Statute of Limitations governing actions founded on alleged construction defects.
In Covenant Baptist Church, Inc. v. Vasallo Construction, Inc. and Lemartec Engineering & Construction Corporation, Plaintiff alleged multiple construction defects against two Defendants. The alleged defects were focused on water intrusion through the roofing systems and were known to the Plaintiff on August 13, 2006. However, four years and eleven months later, Plaintiff filed suit acknowledging that the building had “been plagued with water intrusion issues for a number of years,” and that Plaintiff’s complaints “regarding the water intrusion [had] been met largely with ‘band-aid’ type ineffective repairs.”
Lemartec Engineering & Construction Corporation (“Lemartec”), filed a Motion for Summary Judgment as to multiple counts and rested its Motion squarely on the shoulders of Florida’s four-year statute of limitations. Importantly, the statute begins to run “where there has been notice of an invasion of legal rights or a person has been put on notice of his right to a cause of action” Snyder v. Wernecke, 813 So.2d 213,216 (Fla 4th DCA 2002) (citing City of Miami v. Brooks, 70 So.2d 306 (Fla. 1954)). Plaintiff attempted to bypass the four-year nature of the statute by trying to classify the defects in question as latent.
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Ryan M. Charlson, Cole, Scott & KissaneMr. Charlson may be contacted at
Ryan.Charlson@csklegal.com
Claim Preclusion: The Doctrine Everyone Thinks They Know But No One Really Knows What it Means in Practice
April 25, 2023 —
Garret Murai - California Construction Law BlogGenerally, I think restraint in litigation is a good thing. Don’t go crazy on your claims, don’t go nut-so in your discovery, and don’t present your case at trial in a way that causes the judge and/or jury to raise their eyebrows or shake their heads in disbelief. But, as with nearly everything, there’s always an exception. One of which is: don’t hold back on a claim because you “think” you might be able to bring it later, because you might not be able to as the next case, 5th and LA v. Western Waterproofing Company, Inc., 87 Cal.App.5th 781 (2023), demonstrates.
The 5th and LA Case
At the outset, let me first say how much I enjoyed reading this case based on the writing alone. The case, as the 2nd District Court of Appeals states, involves “a second lawsuit about an increasingly leaky roof.”
In 2012, property owner 5th and LA hired roofing contractor Western Waterproofing Company, Inc. to remove and recoat a parking lot that served also served as the roof over retail and office space below. Western completed its work in July 2012 and almost immediately 5th and LA noticed water that the coating was failing causing water leaks to the interior of the building.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
TV Kitchen Remodelers Sued for Shoddy Work
December 04, 2013 —
CDJ STAFFTheir remodels may dazzle on television, but someone who hired Bunelleschi Construction, the company owned by “Kitchen Cousins” stars John Colaneri and Anthony Carrino, wasn’t quite so dazzled. And now Robert and Peng Avery are suing the two men and their company for a kitchen remodel gone awry. They claim that the company left their Tenafly, New Jersey home uninhabitable.
According to the couple, the Brunelleschi’s work included “numerous gaps in sheetrock” and improper installation of ductwork, plumbing, and doors. They also claim that Brunelleschi Construction falsely claimed the work had passed final building and electrical inspections. When the company stopped work, the couple was unable to obtain a certificate of occupancy.
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Labor Development Impacting Developers, Contractors, and Landowners
June 25, 2019 —
John Bolesta & Keahn Morris - Sheppard Mullin Construction & Infrastructure Law BlogIt is unlawful for unions to secondarily picket construction sites or to coercively enmesh neutral parties in the disputes that a union may have with another employer. This area of the law is governed by the National Labor Relations Act (“NLRA”), the federal law that regulates union-management relations and the National Labor Relations Board (“NLRB”), the federal administrative agency that is tasked with enforcing the NLRA. But NLRB decisions issued during the Obama administration have allowed a union to secondarily demonstrate at job sites and to publicize their beefs over the use of non-union contractors there, provided the union does not actually “picket” the site. In those decisions, the NLRB narrowed its definition of unlawful “picketing,” thereby, limiting the scope of unlawful activity prohibited by law. Included in such permissible nonpicketing secondary activity is the use of stationary banners or signs and the use of inflatable effigies, typically blow-up rats or cats, designed to capture the public’s attention at an offending employer’s job site or facilities.
A recently released NLRB advice memo, however, signals the likely reversal of those earlier decisions and that contractors and owners may now be able to stop such harassing union job site tactics simply by filing a secondary boycott unfair labor practice change with the NLRB. The 18 page memo, dated December 20, 2018 (and released to the public on May 14, 2019), directs the NLRB’s Region 13 to issue a complaint against the Electrician’s Union in a dispute coming out of Chicago where the union erected a large, inflatable effigy, a cat clutching a construction worker by the neck, and posted a large stationary banner proclaiming its dispute to be with the job’s general contractor over the use of a non-union electrical sub at the job site’s entrance. Though not an official Board decision, the memo suggests the NLRB General Counsel’s (GC) belief that the earlier Obama era decisions may have been wrongly decided and should be reconsidered by the NLRB on the theories that the Union’s nonpicketing conduct was tantamount to unlawful secondary picketing, that it constituted “signal” picketing that unlawfully induced or encouraged the employees of others to cease working with the subs or that it constituted unlawful coercion.
Reprinted courtesy of
John Bolesta, Sheppard Mullin and
Keahn Morris, Sheppard Mullin
Mr. Bolesta may be contacted at jbolesta@sheppardmullin.com
Mr. Morris may be contacted at kmorris@sheppardmullin.com
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CAPSA Changes Now in Effect
November 14, 2018 —
Wally Zimolong - Supplemental ConditionsBack in June, I posted about changes coming to the Pennsylvania Contractor and Subcontractor Payment Act (CAPSA), 73 P.S. Section 501, et. seq. The Act applies to virtually all private construction projects in Pennsylvania. As of last week (Oct. 10), those changes are effective. While there is some argument to the contrary, these changes are NOT retroactive and apply to all projects going forward from that date. To recap, here are some of the important changes you need to be aware of:
- Contractual waivers. Parties cannot waive the applicability of the act through contract. Therefore, any clause in a contract purporting to waive the Payment Act’s applicability is void.
- Suspension of work. Unpaid contractors and subcontractors have always enjoyed a common law right to suspend performance until payment was made. Now, they also have a statutory right to do so. Section 5 of the Payment Act ads a subpart (e) which states that an unpaid contractor or subcontractor can suspend performance without penalty if it is not paid.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
