More (and Simpler) Options Under New Oregon Retention Law
October 21, 2024 —
Michael Yelle - Ahlers Cressman & Sleight PLLCSimilar to the changes made by the Washington Legislature last year, the Oregon Legislature recently changed its retention law. Oregon public works agencies and large commercial project owners are now required to accept surety bonds in lieu of withholding retainage on construction projects. There is also no longer a requirement to deposit retention funds in an interest-bearing escrow account.
The owner or public agency must accept the bond in lieu of retainage unless specific grounds exist. For example, public agencies must find there is “good cause” for rejection of the bond based on the “unique project circumstances. Private owners have less discretion to reject a bond and if the bond meets the statutory requirements, per ORS 701.435(1)(a) “the owner and lender shall accept” the bond “in lieu of all or any portion of the retainage…”
Courts have not analyzed when “good cause” exists for public agencies to reject bonds or exactly what will allow a private owner to reject a bond. However, an agency or owner cannot have a general policy to reject retention bonds. The statute does not provide next steps if the contractor disagrees with a decision to reject the bond. It may be necessary to proceed under the contract’s dispute resolution procedure or it may be more appropriate to take the issue directly to the courts.
Read the court decisionRead the full story...Reprinted courtesy of
Michael Yelle, Ahlers Cressman & Sleight PLLCMr. Yelle may be contacted at
michael.yelle@acslawyers.com
Massive Fire Destroys Building, Firefighters Rescue Construction Worker
March 26, 2014 —
Beverley BevenFlorez-CDJ STAFFA “5-alarm fire burned down a residential building under construction in the Montrose area” of Houston, Texas, reported Click 2 Houston. Almost 200 emergency personnel were on the scene.
Captain Ruy Lozano told Click 2 Houston that “firefighters worked to contain the blaze, before the imminent collapse because the fire suppression systems were not yet in place for the under-construction building.”
ABC News reported that fire fighters rescued Curtis Reissig, a construction worker from the fire. “It’s burning my eyes, my throat. I can’t breathe and I can’t hardly see anything,” Reissig told ABC News. “I could see a window. I went to that window. Trying to open that window in a panic. I couldn’t get the thing open. Smoke was getting heavier, just trying to get some air.”
ABC News reported that Reissig jumped down from a fifth story balcony to a ledge below, where “firefighters pulled him to safety.”
Read the full story at Click 2 Houston...
Read the full story at ABC News... Read the court decisionRead the full story...Reprinted courtesy of
Pennsylvania: When Should Pennsylvania’s New Strict Products Liability Law Apply?
February 05, 2015 —
Robert Caplan and Timothy Carroll – White and Williams LLPPennsylvania has maintained its own peculiar brand of strict products liability law ever since the Supreme Court decided Azzarello v. Black Bros. Co., Inc.[1] in 1978. Maligned by many as “absurd and unworkable,”[2] if “excessively” orientated towards plaintiffs,[3] Azzarello’s unique approach to the Restatement (Second) of Torts § 402A (1965)[4] has recently been judicially consigned to the dustbin of history.
In Tincher v. Omega Flex, Inc.,[5] decided on November 19, 2014, the Pennsylvania Supreme Court expressly overruled Azzarello leaving in its place a new alternative standards approach to proving a Section 402A claim. An injured worker or subrogated insurer[6] must still prove that the seller, whether a manufacturer or a distributor, placed the product on the market in a “defective condition unreasonably dangerous to the consumer.”[7] But now, under Tincher, a plaintiff must use either a “consumer expectation test” or a “risk-utility test” to establish that criterion.[8]
Reprinted courtesy of
Robert Caplan, White and Williams LLP and
Timothy Carroll, White and Williams LLP
Mr. Caplan may be contacted at caplanr@whiteandwilliams.com; Mr. Carroll may be contacted at carrollt@whiteandwilliams.com
Read the court decisionRead the full story...Reprinted courtesy of
Daily Reports – The Swiss Army Knife of Project Documentation
June 08, 2020 —
Christopher A. Henry - ConsensusDocsProject “Daily Reports” are some of the most important, yet overlooked aspects of a construction project. These reports serve many beneficial roles such as holding parties accountable to their obligations, providing the basis for an as-built schedule, recording manpower, documenting site conditions, and recording any other important and relevant information that happened on the job site that day. Daily reports can also provide information to help with claims or disputes that may arise in the future, such as noting weather delays, providing backup for future delay claims, and providing information to dispute claims made against your company. Finally, daily reports also serve as a useful communication tool during the project and a source of real time information for parties that want to know how the work is commencing on a day to day basis. Because daily reports are the “Swiss army knife” of project documentation, it is extremely important that a contractor puts for its best effort when creating them.
It is no secret that a construction project can become more chaotic as the schedule progresses. Unfortunately, when that is the case, the effort put into creating these reports drops off and sometimes the responsibility of creating such reports is thrown aside altogether. I can speak from experience. Prior to entering the practice of law, I was a project engineer for a general contractor in Atlanta. As an engineer in the field, one of my many responsibilities was to enter the daily reports. Based off this experience, below are some thoughts on how to prepare useful daily reports.
1. Check the contract. The contract you entered may set forth specific requirements for the daily reports, such as where to file them, the required format, and specific information that must be included. Complying with contractual requirements is necessary for a successful project. One word of caution for subcontractors, a subcontract will often incorporate the prime contract. If that is the case, be sure to check the prime contract for any specific language relating to daily reports.
Read the court decisionRead the full story...Reprinted courtesy of
Christopher A. Henry, Jones Walker LLP Mr. Henry may be contacted at
chenry@joneswalker.com
Lease-Leaseback Fight Continues
June 01, 2020 —
Garret Murai - California Construction Law BlogIt’s like the rematch between Rocky Balboa and Apollo Creed.
In the right corner we have the California Taxpayers Action Network. In the left corner, Taber Construction, Inc. The title in contention: Construction of California’s Lease-Leaseback Program and, specifically, whether a construction firm can provide both pre-construction services as well as perform construction or, whether doing so, would be an impermissible conflict of interest under the Lease-Leaseback Law.
In their first appellate court match, California Taxpayers Action Network argued that a lease-leaseback arrangement between Taber Construction and the Mount Diablo Unified School District, whereby the District agreed to lease the site to Taber Construction one dollar (which is permissible) and to pay Taber a “guaranteed project cost” of $14,743,395 comprised of “tenant improvement payments” totaling $13,269,057 prior to the District taking delivery of the project (which was the issue in dispute) and six “lease payment amount[s]” of $345,723 plus interest paid in 30-day intervals, violated the Lease-Leaseback Law because the bulk of the payments by the District to Taber Construction occurred during construction rather than during the lease-term which could only “truly” occur after the District took delivery of the project. The 1st District Court of Appeal sided with Taber Construction, and in doing so created an appellate court split with the 5th District Court of Appeal’s decision in Davis v. Fresno Unified School District, 237 Cal.App.4th 261 (2015), which held that contractor who received all payments prior to turnover of the project to the district violated the Lease-Leaseback Law.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Amendments to Federal Rule of Evidence 702 – Expert Testimony
October 30, 2023 —
William L. Doerler - The Subrogation StrategistIn April, the Supreme Court sent a list of proposed amendments to Congress that amend the Federal Rules of Evidence. Absent action by Congress, the rules go into effect December 1, 2023. The proposed amendments affect Rules 106, 615 and, relevant to this article, 702.
Rule 702 addresses testimony by an expert witness. The proposed rule reads as follows (new material is underlined; matters omitted are lined through):
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
- the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Read the court decisionRead the full story...Reprinted courtesy of
William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
California Ranks As Leading State for Green Building in 2022
February 01, 2023 —
The U.S. Green Building CouncilWashington, D.C. (Jan. 17, 2023) – The U.S. Green Building Council (USGBC) today released its annual ranking of U.S. states leading the way on green building, and California made the top ten at number four. USGBC's ranking is based on LEED-certified gross square footage per capita over the past year. The LEED rating system is the world's most widely used green building program and was created by USGBC as a leadership standard defining best practices for healthy, high-performing green buildings.
"It was a strong year for LEED certifications across the U.S. as companies and governments embrace LEED as a tool for meeting ESG goals and organizational commitments to climate action, occupant wellbeing and resource efficiency," said Peter Templeton, USGBC president and CEO. "In California and beyond, LEED buildings are environmentally friendly, cutting their emissions and waste, and use less energy and water. At the same time, they also help reduce operational and maintenance costs, contributing to the bottom line."
In 2022, California had 386 LEED-certified projects, totaling over 96.4 million square feet or 2.44 square feet per capita. Office buildings, residential apartment buildings, government buildings and schools were among those that were LEED-certified last year.
The states ranking ahead of California were Massachusetts (3.76 LEED-certified square feet per resident), Illinois (3.47 square feet per capita), and New York (3.17 square feet per capita).
Additional information on the 2022 rankings, along with a listing of notable projects, can be found
here.
Read the court decisionRead the full story...Reprinted courtesy of
Old Case Teaches New Tricks
March 16, 2017 —
Angela A.L. Connor & Curtis W. Martin - Peckar & Abramson, P.C.Eight years after completion of the wharf project, Zachry and the Port of Houston continue to slug
it out in the appellate courts and continue to refi ne Texas construction law along the way. In the
latest appellate opinion, the Court of Appeals details the general contractor’s control of the means
and methods of their work without interference from a governmental entity. It also supports a
subcontractor’s use of a pass-through claim as a cost efficient way to recover damages.
By now most of us are familiar with the project and the previous decisions. Zachry sued the Port
claiming breach after the Port denied Zachry the right to continue construction using its frozen
cutoff wall. The Texas Supreme Court upheld the jury’s $20 million verdict for Zachry, ruling that
the Port’s “no damages for delay” clause would not bar Zachry’s claim in light of the Port’s active
interference with Zachry’s work. The Supreme Court then sent the case back to the Court of
Appeals to consider other arguments that the Port had made.
That led to the most recent decision. In December, 2016, the Houston Fourteenth Court of Appeals
ruled in favor of Zachry on all issues and affirmed the jury verdict. In doing so, the Court of Appeals
provides several lessons or reminders on Texas Construction law.
Reprinted courtesy of
Angela A.L. Connor, Peckar & Abramson, P.C. and
Curtis W. Martin, Peckar & Abramson, P.C.
Ms. Connor may be contacted at aconnor@pecklaw.com
Mr. Martin may be contacted at cmartin@pecklaw.com
Read the court decisionRead the full story...Reprinted courtesy of
