Recent Environmental Cases: Something in the Water, in the Air and in the Woods
July 22, 2019 —
Anthony B. Cavender - Gravel2GavelState of Texas, et al. v. US EPA. The revised regulatory definition of “Waters of the U.S.” continues to generate litigation in the federal courts. On May 28, 2019, the U.S. District Court for the Southern District of Texas held that the 2015 rulemaking proceedings used by EPA and the U.S. Army Corp of Engineers to redefine this important component of the Clean Water Act were flawed in that the notice and comment provisions of the Administrative Procedure Act (APA) were violated because insufficient notice was provided by these agencies that “adjacent” waters newly subject to the regulatory jurisdiction of these agencies, can be determined on the basis of specific distances, which was a change in the agencies’ thinking, and insufficient notice of this change was provided to the public. In addition, the final rule “also violated the APA by preventing interested parties from commenting on the scientific studies that served as the technical basis” for the rule. However, the court did not vacate the new rule, but remanded the matter to the “appropriate administrative agencies” to give them an opportunity to fix this problem.
State of Oklahoma, ex rel. Mike Hunter, Attorney General of Oklahoma v. US EPA and the United States Army Corps of Engineers. A day later, on May 29, 2019, the U.S. District Court for the Northern District of Oklahoma rejected arguments that the new redefinition should be preliminarily enjoined.While this case was filed in 2015, intervening litigation in the federal courts, including the U.S. Supreme Court, caused a substantial delay in the disposition of this case. The court, noting that the tests for granting such an injunction against the federal government are fairly exacting, held that the plaintiffs, the State of Oklahoma and a number of industry groups and associations, failed to convince the court that the harm they would suffer if the rules remained effective would be irreparable. Presumably, this case will be going to trial in the near future.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
At Long Last, the Colorado Legislature Gets Serious About Construction Defect Reform – In a Constructive Way
February 12, 2024 —
David McLain - Higgins, Hopkins, McLain & Roswell, LLCOn February 5th, Senators Zenzinger and Coleman, along with Representative Bird, introduced Senate Bill 24-106 into the Colorado Legislature. The bill has been assigned to the Senate Committee on Local Government and Housing. What follows are the various portions of the bill I believe to be the most impactful, as described in the bill summary, along with my commentary thereon:
Sections 3 and 6 – A True Right to Repair
Sections 3 and 6 create a right for a construction professional to remedy a claim made against the construction professional by doing remedial work or hiring another construction professional to perform the work. The following applies to the remedy:
- The construction professional must notify the claimant and diligently make sure the remedial work is performed; and
- Upon completion, the claimant is deemed to have settled and released the claim, and the claimant is limited to claims regarding improper performance of the remedial work.
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David McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Insurer’s Discovery Requests Ruled to be Overbroad in Construction Defect Suit
October 28, 2011 —
CDJ STAFFThe US District Court has ruled in the case of D.R. Horton Los Angeles Holding Co. Inc. v. American Safety Indemnity, Co. D.R. Horton was involved in a real estate development project. Its subcontractor, Ebensteiner Co., was insured by ASIC and named D.R. Horton as an additional insured and third-party beneficiary. D.R. Horton, in response to legal complaints and cross-complaints, filed for coverage from ASIC under the Ebensteiner policy. This was refused by ASIC. ASIC claimed that “there is no potential coverage for Ebensteiner as a Named Insurer and/or D.R. Horton as an Additional Insured.” They stated that “the requirements for coverage are not satisfied.”
The case same to trial with the deadline for discovery set at March 1, 2011. ASIC stated they were seeking the developer’s “job file” for the Canyon Gate project. D.R. Horton claimed that ASIC’s discovery request was overbroad and that it would be “unduly burdensome for it to produce all documents responsive to the overbroad requests.”
D.R. Horton did agree to produce several categories of documents, which included:
“(1) final building inspection sign-offs for the homes that are the subject of the underlying litigation;(2) an updated homeowner matrix for the underlying actions; (3) the concrete subcontractor files; (4) the daily field logs for D.R. Horton’s on-site employee during Ebensteiner’s work; (5) documents relating to concrete work, including documents for concrete suppliers; (6) documents relating to compacting testing; (7) documents relating to grading; and (8) D.R. Horton’s request for proposal for grading”
The court found that the requests from ASIC were overbroad, noting that the language of the ASIC Request for Production of Documents (RFP) 3-5 would include “subcontractor files for plumbing, electric, flooring, etc. - none of these being at issue in the case.” The court denied the ASIC’s motion to compel further documents.
The court also found fault with ASIC’s RFPs 6 and 7. Here, D.R. Horton claimed the language was written so broadly it would require the production of sales information and, again, subcontractors not relevant to the case.
Further, the court found that RFPs 8, 10, 11, and 13 were also overbroad. RFP 8 covered all subcontractors. D.R. Horton replied that they had earlier complied with the documents covered in RFPs 10 and 11. The court concurred. RFP 13 was denied as it went beyond the scope of admissible evidence, even including attorney-client communication.
The court denied all of ASIC’s attempts to compel further discovery.
Read the court’s decision…
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Explore Legal Immigration Options for Construction Companies
August 29, 2022 —
Megan R. Naughton - Construction ExecutiveAlthough the visa options are limited, there are some that can be explored by construction companies in the United States, including the following.
H-1B
The H-1B visa category may be available for construction positions that require at least a bachelor’s degree in a specific field such as civil engineering, construction management or accounting. The timing can be challenging if an employer is looking to hire a recent graduate or someone outside of the United States for a role because of the H-1B lottery but can work well if the candidate is already in H-1B status and working for another company. These visas are site-specific, so they may need amending if a worker is moved from one site to another.
H-2B
The H-2B visa category is an option if the construction work is seasonal in nature and recurs each year, and if the company can plan its specific needs sufficiently far in advance. Timing is difficult with these; they require proving a shortage of U.S. workers and are subject to a lottery system like the H-1B.
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Megan R. Naughton, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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10 Answers to Those Nagging Mechanics Lien Questions Keeping You Up at Night. Kind of
November 05, 2014 —
Garret Murai - California Construction Law BlogConstruction lawyers may not ponder the great questions in life.
We leave that to the estate planning attorneys.
But ponder we do.
And the next case, as I’ll explain below, “kind of” answers 10 important mechanics lien questions we construction attorneys toss and turn over at night.
Background
In Palomar Grading & Paving, Inc. v. Wells Fargo Bank, Case Nos. G049907 and G049910 (October 14, 2014), developer Inland-LGC Beaumont, LLC (“Inland”) hired general contractor 361 Group Construction Services, Inc. (“361″) to construct a Kohl’s department store in Beaumont, California.
The Kohl’s department store was to be constructed on one parcel of a three-parcel tract. Inland later sold the parcel on which the Kohl’s department store was to be located to Kohl’s and the two other parcels were later acquired by Wells Fargo who foreclosed on the construction loan for the project.
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Garret Murai, Kronick Moskovitz Tiedemann & GirardMr. Murai may be contacted at
gmurai@kmtg.com
The Evolution of Construction Defect Trends at West Coast Casualty Seminar
May 03, 2018 —
Don MacGregor - Bert L. Howe & Associates, Inc.Twenty-five years ago. 1993. On January 23rd, Bill Clinton was sworn in as the 42nd President of the United States. The average cost of a gallon of gasoline was $1.16, a movie ticket cost $4.00, and the average cost of a new home was $113,200.00.
1993 also marked the first of what would be a quarter century of annual seminars hosted by West Coast Casualty Service, and provided to the combined professionals within the construction defect community. As the seminar has grown both in attendance and prominence within this community under the watchful stewardship of David and Coral Stern, much has changed both with regard to the content of the seminar and the climate within which it was presented. A quick look at the topics addressed over the past 25 years of the Construction Defect Seminar provides one with a veritable history of construction defect litigation and insurance coverage trends across the United States and beyond.
While the first seminar was hosted in 1993, my first attendance didn’t occur until 1999, and the first time I was honored to be a panelist would have to wait until 2007. In the subsequent years, I’ve had the opportunity to sit on panels an additional three times, and each one I gained rare and valuable insights into the construction defect community, its willingness to challenge itself, and the amazing professionals we all have the distinct pleasure of working with every day (and whom we sometimes take too much for granted).
In the mid to late 90’s, topics at the seminar included such subjects as the Montrose Chemical Corp v. Superior Court decision (Montrose) regarding a carrier’s duty to defend and the subsequent Stonewall Insurance case that examined the duty to indemnify in the context of construction defect claims. The California Calderon Act of 1997, laying out the roadmap for HOA’s filing construction defect lawsuits was also a topic of discussion and debate within the West Coast “arena.”
The new millennium saw the landmark Aas v. William Lyon decision, which disallowed negligence claims for construction defects in the absence of actual resultant damage. This was followed by Presley Homes v. American States Insurance wherein the court ruled that a duty to defend applies where there is mere potential for coverage and the duty to defend applies to the entire action. Each of these bellwether decisions was addressed contemporaneously by panels at the West Coast seminar, contemporaneously bringing additional dialog to the CD community, from within the community.
2002 brought what has become the defining legislation in California regarding construction defect litigation and a builder’s right to repair. Senate Bill 800 (SB800), and its subsequent codification as Title 7, Part 2 of Division 2 of the California Civil Code, Sections 895 through 945.5 would become the defining framework for similar legislation across the United States. During the course of its drafting, movement through the legislature, and final adoption in January of 1993, many of the questions raised and debated in committees in Sacramento, had already been and were continuing to be addressed by panelists at the West Coast Seminar. How does SB800 work with Calderon? How does it affect the prior Aas decision? What now constitutes a defect, and what are timeframes established within the complex pre-litigation process? Open the pages of the 2002 – 2004 seminar invitations and you’ll see panels comprised of the finest members of the insurance law and coverage communities addressing those very questions (and more)!
As the first decade of the new century drew to a close, a brief review of the WCC invitations from that period suggests a trend towards programmatic analyses of key themes selected for the seminar. In 2008, my second opportunity as a guest speaker, topics included a review of the state of construction defect litigation in a post-SB 800 environment. Panelists offered retrospective insight into the state of right to repair statutes in multiple states, while others offered a glimpse at where the industry might be headed, as similar legislation was enacted across the country. As always, pertinent court decisions bearing on construction defect, both in California, and elsewhere were given unique perspective and additional clarity by multiple panels of gifted speakers. In 2009, claims and coverage were examined from multiple unique perspectives, including that of plaintiff, the policyholder, and the insurer. Wrap policies and the gaps in due to self-insured retention obligations were examined.
As we rapidly approach the end of the second decade of the 21st Century, West Coast Casualty’s Construction Defect Seminar continues to lead the construction defect community as the premier source for information and peer dialog on all matters relating to construction law, coverage, and emerging trends. In 2017, the Seminar tackled such broad subjects as the role of women in the construction industry, claims management, and risk management, challenges raised by wrap versus non-wrap litigation, and the emergent trend of apartment to condo conversions (and the attendant coverage challenges).
This month, beginning on May 16th at the Disneyland Resort, in Anaheim California, America’s largest Construction Defect event kicks off its 25th Anniversary celebration. As has been every year since 1993, the seminar invitation promises insurance, legal, and industry professionals an exciting and informative array of salient and timely panel topics, as well as a stellar faculty of gifted panelists. If this year’s seminar is anything like the past 25 years, this edition of West Coast Casualty’s Construction Defect Seminar will not only be informative and educational, but also a promise for another 25 years of peerless service to the construction defect community.
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Former NJ Army Base $2B Makeover is 'Buzzsaw' of Activity
June 14, 2021 —
Tom Stabile - Engineering News-RecordTake a developed property the size of New York City’s Central Park with 5 million sq ft of building area, program in new construction or renovation over 20 years and across three dozen parcels for 1,600 housing units, 300,000 sq ft of civic or government space, 500,000 sq ft for retail and 2 million sq ft of offices, and you have a pretty ambitious undertaking. The $2-billion effort to redevelop Fort Monmouth, a decommissioned former U.S. Army base in the thick of New Jersey’s suburban sprawl, is all kinds of ambitious.
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Tom Stabile, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Previously Owned U.S. Home Sales Rise to Eight-Month High
July 23, 2014 —
Victoria Stilwell – BloombergSales (ETSLTOTL) of previously owned U.S. homes climbed in June to an eight-month high as more listings helped prices cool, luring buyers into the market.
Sales increased 2.6 percent to a 5.04 million annual rate last month, led by gains in all four U.S. regions, figures from the National Association of Realtors showed today in Washington. The median forecast of 78 economists surveyed by Bloomberg projected sales would rise to a 4.99 million rate. Prices advanced at the slowest pace since March 2012 and inventories rose to an almost two-year high.
Historically low interest rates and smaller price increases are helping bring homeownership within reach for more Americans. A pickup in employment opportunities that lead to faster wage growth would provide an added spark for a residential real-estate market that began to soften in the middle of 2013.
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Victoria Stilwell, BloombergMs. Stilwell may be contacted at
vstilwell1@bloomberg.net
