2015 California Construction Law Update
December 31, 2014 —
Garret Murai – California Construction Law BlogOver 2,200 bills were introduced during the second and final year of the 2013-2014 legislative session of which 931 were signed into law. For the design and construction industry, the end of the second session, like the end of the first session, saw a number of new prevailing wage bills signed into law, which again reflected the strong Democratic majorities in both the Assembly and Senate. The end of the second session also saw the enactment of laws consolidating several existing design-build authorization sections and extending the 5% cap on retention for public works projects.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Some Construction Contract Basics- Necessities and Pitfalls
January 03, 2022 —
Christopher G. Hill - Construction Law MusingsRecently, I’ve been on an “advising” kick here at Construction Law Musings. My last two posts have been about communication and trusting your gut when it comes to a smooth construction project. This post will be the third in the trilogy (and who knows maybe I’ll have a 4th and 5th like the Hitchhiker’s Guide to the Galaxy “trilogy”).
While all construction contractors should use their communication skills and instincts to assure a smooth and hopefully profitable project, all of the gut following and great communication will not help you if your contract is not up to snuff. In the spirit of giving you a few basics things to look at, here’s my list of three basics that you need in your contract and a three things to be on the lookout for in others’ contracts.
First, the good stuff that needs to be there:
- Attorney Fees Clause– without it, a Virginia court (and most other courts) will not award you a judgment for any attorney fees spent to protect your rights.
- Dispute Resolution– whether the specified resolution is through the litigation process, ADR or some combination, such a clause or paragraph will only help define the parameters of what happens with a claim.
- Detailed scope of work– Without the proper detail in the scope of work, the parties cannot properly set expectations and know what happens when things change.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Insurance Measures Passed by 2015 Hawaii Legislature
June 10, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe 2015 Hawaii legislative session passed three insurance-related bills which have all been signed by the governor. Bills that have been enacted are the following:
SB0589 - We previously devoted this post to the legislation. The bill provides relief for residents in lava zones on the Big Island. The bill limits the number of property policies that an insurer can refuse to renew in a lava zone. Further, a moratorium on the issuance of policies can be lifted in a state of emergency due to the threat of imminent disaster from a lava flow.
SB0736 - Provisions relating to reimbursement for accident and health or sickness insurance benefits are amended. Further, the bill provides that prior to initiating any recoupment or offset demand efforts, an entity must send a written notice to the health care provider at least 30 days prior to engaging in recoupment or offset efforts. An entity may not initiate recoupment or offset efforts more than 18 months after the initial claim payment was received by the health care provider or health care entity.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
BUILD Act Inching Closer To Reality
July 08, 2011 —
Douglas Reiser, Builders Council BlogA select group of Senators have launched a marketing campaign for the BUILD Act. If this is the first you are hearing about the BUILD Act, do not fret. The Act still has a long way to go, but if successful it would bring a national infrastructure bank.
I have been fascinated with the concept of a national infrastructure bank for quite some time. The idea has been around since the Clinton years ? and perhaps beyond. The Act’s purpose is to create a national bank (American Infrastructure Financing Authority) to provide loans and loan guarantees to encourage private investment in upgrading America’s infrastructure. For a number of years, we have seen similar legislation float around Congress. But, none of those initiatives have gained as much traction as BUILD.
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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com
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Third Circuit Holds No Coverage for Faulty Workmanship Despite Insured’s Expectations
November 21, 2018 —
Brian Margolies - TLSS Insurance Law BlogIn its recent decision in Frederick Mut. Ins. Co. v. Hall, 2018 U.S. App. LEXIS 31666 (3d Cir. Nov. 8, 2018), the United States Court of Appeals for the Third Circuit had occasion to consider Pennsylvania’s doctrine of reasonable expectations in the context of a faulty workmanship claim.
Hallstone procured a general liability policy from Frederick Mutual to insure its masonry operations. Notably, when purchasing the policy through an insurance broker, Hallstone’s principal stated that he wanted the “maximum” “soup to nuts” coverage for his company. Hallstone was later sued by a customer for alleged defects in its masonry work. While Frederick agreed to provide a defense, it also commenced a lawsuit seeking a judicial declaration that its policy excluded coverage for faulty workmanship. The district court agreed that the business risk exclusions applied, but nevertheless found in favor of Hallstone based on the argument that Hallstone had a reasonable expectation that when applying for an insurance policy affording “soup to nuts” coverage, it this would include coverage for faulty workmanship claims.
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Brian Margolies, Traub Lieberman Straus & Shrewsberry LLPMr. Margolies may be contacted at
bmargolies@tlsslaw.com
President Trump Nullifies “Volks Rule” Regarding Occupational Safety and Health Administration (OSHA) Recordkeeping Requirements
April 13, 2017 —
Louis “Dutch” Schotemeyer – Newmeyer & Dillion LLPOSHA requires employers to maintain safety records for a period of five years. The Occupational Safety and Health Act contains a six month statute of limitations for OSHA to issue citations to employers for violations. In an effort to close the gap between the five years employers are required to keep records and the six month citation window, the Obama Administration implemented the “Volks Rule,” making recordkeeping requirements a “continuing obligation” for employers and effectively extending the statute of limitations for violations of recordkeeping requirements from six months to five years.
On March 22, 2017, the Senate approved a House Joint Resolution (H.J. Res. 83) nullifying the “Volks Rule” and limiting the statute of limitations to six months for recordkeeping violations. President Trump signed the resolution nullifying the “Volks Rule” on April 3, 2017. The nullification appears to be in line with President Trump’s stated goal of generally eliminating governmental regulations.
What Does This Mean for California Employers?
California manages its own OSHA program, which generally follows the federal program, but is not always in lock-step with Federal OSHA. Cal/OSHA, under its current rules, may only cite employers for recordkeeping violations that occurred during the six months preceding an inspection or review of those records. To date, there has been no indication that California’s Division of Occupational Safety and Health (DOSH) has plans to adopt the “Volks Rule.” Barring a change, California employers will continue to operate under the status quo and be required to maintain safety records for five years, but will only be exposed to citations for recordkeeping violations occurring within the last six months.
Current Cal/OSHA Recordkeeping Requirements
Cal/OSHA form 300 (also known as the “OSHA Log 300”) is used to record information about every work-related death and most work-related injuries that cannot be treated with onsite first aid (specific requirements can be found in the California Code of Regulations, Title 8, Sections 14300 through 14300.48). Currently, California Code of Regulations, Title 8, Section 14300.33 requires employers to retain OSHA Log 300 for a period of five years following the end of the calendar year during which the record was created, despite the fact that Cal/OSHA can only cite employers for failing to maintain such records for up to six months preceding an inspection.
Looking to the Future
Cal/OSHA is working on regulations that would require electronic submission of OSHA Log 300 records in California. This would bring Cal/OSHA more in line with Federal OSHA, which already requires electronic submission.
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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Louis "Dutch" Schotemeyer, Newmeyer & Dillion LLPMr. Schotemeyer may be contacted at
dutch.schotemeyer@ndlf.com
Georgia Court Clarifies Landlord Liability for Construction Defects
June 02, 2016 —
Chadd Reynolds - AHHC Construction Law BlogIn Cowart v. Schevitz, the Georgia Court of Appeals clarified the instances in which an out-of-possession landlord can be liable in a premises liability claim. No. A15A2036, 2016 WL 563114, at *4 (Ga. Ct. App. Feb. 15, 2016).
In this case, the plaintiff was leaving a restaurant and injured herself stepping down off of a sidewalk near the bottom of a ramp. The plaintiff filed a premises liability claim against the owner of commercial property (the “landlord”) and the operator of the restaurant (who later settled), seeking medical expenses and costs of litigation. An expert testifying on behalf of the plaintiff stated that the ramp was required to have railings pursuant to building codes and, had the railings been installed on the ramp, the plaintiff’s fall more than likely would not have occurred. The landlord moved for summary judgment, arguing that as an out-of-possession landlord, his liability to third persons for the use of the property by his tenant was precluded under O.C.G.A. § 44-7-14. The trial court denied the motion without comment, and the owner subsequently appealed.
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Chadd Reynolds, Autry, Hanrahan, Hall & Cook, LLPMr. Reynolds may be contacted at
reynolds@ahclaw.com
The Basics of Subcontractor Defaults – Key Considerations
February 15, 2021 —
Gerard J. Onorata - Peckar & Abramson, P.C.The success of general contractors in completing a construction project is often dependent upon the performance of their subcontractors. General contractors have frequently said exactly this. Traditionally, the key subcontractors on a project are the electrical, plumbing, HVAC and structural steel subs. Due to the fundamental nature of the work performed by these trades, the risk of defaulting and terminating one or more of them is likely to have a substantial impact on the project, more so than with the trade contractors that perform their work after a building is made weather tight (i.e., drywall, tile, painting).
Most general contractors have, over a period of years, established longstanding relationships with certain subcontractors that they have come to depend upon. The risk of having to default and terminate one of these subs is minimal. Nevertheless, there will inevitably arise occasions when even a once reliable subcontractor fails to perform and it becomes necessary to invoke the remedies of default and termination. Areas ripe for controversy with subcontractors that often can lead to default and termination often involve disputes over change orders and the scope of work, the installation of defective work and the back-charges that ensue therefrom, and, to a lesser extent, conflicts that arise from ambiguous plans and specifications and the extra work and delays caused by the discovery of unforeseen site conditions.
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Gerard J. Onorata, Peckar & Abramson, P.C.Mr. Onorata may be contacted at
gonorata@pecklaw.com
