Cause Still Unclear in March Retaining Wall Collapse on $900M NJ Interchange
June 07, 2021 —
Stephanie Loder - Engineering News-RecordA probe continues by construction engineer Hardesty and Hanover LLC into what caused the late March collapse of a retaining wall that is part of one of New Jersey's largest roadbuilding projects—the already late-running effort called Direct Connection, which aims to untangle the convoluted interchange of north-south I-295 and east-west Route 42 in Camden County.
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Stephanie Loder, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Supply Chain Delay Recommendations
August 07, 2022 —
Denise Motta - Gordon & Rees Construction Law BlogThis Bulletin provides guidance to contractors, subcontractors, suppliers, and others to ensure compliance with contractual change order requirements in the event work on a construction project is impacted by supply chain delays.
Contract Protection Tips:
The construction industry is being impacted substantially by inability to obtain necessary construction products due to supply chain issues. Most construction contracts do not accommodate time extensions due to supply chain impacts. To address this gap in contract terms, we recommend including language such as: “lack of or failure of or other inability to obtain necessary transportation, fuel, power, materials, machinery, equipment or facilities, delays caused by other contractors, subcontractors or their subcontractors of any tier, or any materialmen or suppliers” as part of the defined force majeure event under the contract.
This provision can be included in the Change Order section of the contract as well by including a provision such as: “If the Work is delayed by the failure of or other inability to obtain necessary transportation, fuel, power, materials, machinery, equipment or facilities, delays caused by other contractors, subcontractors or their subcontractors of any tier, or any materialmen or suppliers, contractor shall be entitled to a change order for its costs and time associated with the delay.”
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Denise Motta, Gordon Rees Scully Mansukhani, LLPMs. Motta may be contacted at
dmotta@grsm.com
Summary Judgment in Favor of General Contractor Under Privette Doctrine Overturned: Lessons Learned
March 27, 2023 —
Garret Murai - California Construction Law BlogIt seems like we’ve been seeing a lot of Privette doctrine cases recently. Here’s another,
Brown v. Beach House Design & Development, 85 Cal.App.5th 516 (2002), which provides a cautionary tale for general contractors to watch what they include in their scope of work and how they manage projects.
The Beach House Case
Kyle Brown was a carpenter employed by subcontractor O’Rourke Construction, Inc. who contracted with general contractor Beach House Design and Development to provide finish carpentry on a construction project. A&D Plastering Co., another subcontractor on the project, had erected scaffolding on the project.
On June 16, 2017, while using A&D’s scaffolding, Brown fell onto a concrete walkway where he suffered severe injuries. Following the accident, Beach House and A&D inspected the scaffolding and found that some of the scaffolding was not properly secured to the building and that planks, crossbars, ties and guardrails had been cut or were missing.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Loaded Boom of Burning Tower Crane Collapses in Manhattan, Injuring Six
August 07, 2023 —
James Leggate - Engineering News-RecordThe boom of a tower crane, with its engine on fire, collapsed July 26 at a high-rise construction site in midtown Manhattan—hitting the face of the building across the street as it dropped its 16-ton load. City officials said they would investigate the mishap, which caused minor injuries to two firefighters and four others.
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James Leggate, Engineering News-Record
Mr. Leggate may be contacted at leggatej@enr.com
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Public Contract Code 9204 – A New Mandatory Claims Process for Contractors and Subcontractors – and a Possible Trap for the Unwary
March 22, 2017 —
Alex R. Baghdassarian & Joseph S. Sestay – Peckar & Abramson, P.C.New California legislation affecting public works contractors was adopted pursuant to Assembly Bill 626, sponsored by the Union Trade Contractors Association of California and endorsed by various trade and contractor associations including the AGC. AB 626, which was intended to assist contractors in presenting claims against public agencies, affords new opportunities, and some potential pitfalls, to contractors and subcontractors submitting claims to public owners.
The legislation, codified at California Public Contract Code (PCC) section 9204, is effective for public works contracts entered into after January 1, 2017. All public entities (including the CSUS and the UC system), other than certain Departments of the State (CalTrans, High-Speed Rail Authority, Water Resources, Parks and Recreation, Corrections and Rehabilitation, General Services and the Military) are bound by the provisions of PCC Section 9204. PCC 9204 establishes a mandatory pre-litigation process for all claims by contractors on a public works project. It is an attempt to address the reluctance of public owners to promptly and fairly negotiate change orders on projects, putting some teeth to the mandate of existing law under PCC Section 7104, which precludes public owners from shifting to the contractor the risk of addressing differing subsurface and/or concealed hazardous site conditions.
Reprinted courtesy of
Alex R. Baghdassarian, Peckar & Abramson, P.C. and
Joseph S. Sestay, Peckar & Abramson, P.C.
Mr. Baghdassarian may be contacted at abaghdassarian@pecklaw.com
Mr. Sestay may be contacted at jsestay@pecklaw.com
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ASCE Statement on House Passage of the Water Resources Development Act of 2024
August 05, 2024 —
Marsia Geldert-Murphey, P.E., President of the American Society of Civil EngineersWASHINGTON — The American Society of Civil Engineers (ASCE) commends the House of Representatives for passing H.R. 8812, the bipartisan Water Resources Development Act (WRDA) for 2024. The House WRDA 2024 bill will help improve America's ports and inland waterways, enhance flood risk management and storm risk reduction programs, and prioritize ecosystem restoration. While we urge the Senate to swiftly vote on its version of WRDA, we are encouraged that our nation's critical water resources infrastructure remains a congressional priority.
The House version of WRDA includes several key provisions to enhance the safety of America's dams and levees, which each received a 'D' on the 2021 Report Card for America's Infrastructure, as well as provisions to modernize the nation's inland waterways system, which received a 'D+' in the 2021 Report Card. This includes one of ASCE's top legislative priorities for this year, the reauthorization of the National Dam Safety Program through 2028. But beyond the reauthorization, this bill reduces restrictions on the amount of funds states can receive in National Dam Safety Program State Assistance Grants; improves access to the High Hazard Potential Dam Rehabilitation Grant Program; and requires the incorporation of low-head dams into the National Inventory of Dams. Each of these provisions are critical to ensuring the long-term safety of our nation's dams and ASCE applauds the House for their inclusion. Furthermore, ASCE was pleased to see that the House legislation extends the National Levee Safety Program through 2033, which will help support the establishment of state levee safety programs, develop and publish national guidelines for levee safety, and enhance flood protection nationwide.
While these measures are not included in the Senate version of WRDA, we encourage lawmakers to ensure they are included in a final conference version of the bill.
We thank the House of Representatives for moving forward WRDA 2024 and strongly encourage the Senate to pass its version so that Congress can keep this vital water resources legislation on a biennial schedule and ensure our nation's dams, levees, ports, and inland waterways can support the American economy and protect public safety.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 160,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Construction Lien Does Not Include Late Fees Separate From Interest
December 30, 2019 —
David Adelstein - Florida Construction Legal UpdatesConstruction liens can include unpaid finance charges. But, what about late fees? You know, the late fees that certain vendors like to include in their contract or purchase order unrelated to finance charges. An added cost for being delinquent with your payment. Can a late fee be tacked onto the lien too?
In a recent case, Fernandez v. Manning Building Supplies, Inc., 2019 WL 4655988 (Fla. 1st DCA 2019), a residential owner hired a contractor for a renovation job. The contractor entered into a contract with a material supplier. The terms of the supplier’s contract with the contractor provided that there would be a 1.5% delinquency charge for late payments and it seemed apparent that the delinquency charge was separate from finance charges.
Florida Statute s. 713.06(1) provides in relevant portion:
A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to the limitations thereof, has a lien on the real property improved for any money that is owed to him or her for labor, services, or materials furnished in accordance with his or her contract and with the direct contract and for any unpaid finance charges due under the lienor’s contract.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
New York Appellate Court Addresses “Trigger of Coverage” for Asbestos Claims and Other Coverage Issues
November 30, 2020 —
Paul A. Briganti - Complex Insurance Coverage ReporterOn October 9, 2020, the New York Supreme Court, Appellate Division, Fourth Department, decided an appeal from a trial court’s 2018 summary judgment ruling on a number of coverage issues arising out of asbestos-related bodily injury claims against plaintiffs Carrier Corporation (Carrier) and Elliott Company (Elliott). See Carrier Corp. v. Allstate Ins. Co., No. 396 CA 18-02292, Mem. & Order (N.Y. Sup. Ct. App. Div. 4th Dep’t Oct. 9, 2020).
The Fourth Department reversed the trial court’s ruling that, under New York’s “injury in fact trigger of coverage,” injury occurs from the first date of exposure to asbestos through death or the filing of suit as a matter of law. The parties agreed that, because the policy language at issue required personal injury to take place “during the policy period,” “the applicable test in determining what event constitutes personal injury sufficient to trigger coverage is injury-in-fact, ‘which rests on when the injury, sickness, disease or disability actually began.’” Id. at 3 (quoting Cont’l Cas. Co. v. Rapid-American Corp., 609 N.E.2d 506, 511 (N.Y. 1993)). The Fourth Department concluded that, in resolving the issue, the trial court erred by relying on inapposite decisions in other cases where: (1) the parties had stipulated or otherwise not disputed that first exposure triggered coverage[1]; or (2) the issue had not been resolved on summary judgment, but rather at trial based on expert medical evidence[2]. The Fourth Department further explained that, even if plaintiffs here had met their initial burden on summary judgment by submitting admissible evidence that asbestos-related injury actually begins upon first exposure, the defendant-insurer’s opposition – which included affidavits of medical experts contradicting that evidence and averring instead that “harm occurs only when a threshold level of asbestos fiber or particle burden is reached that overtakes the body’s defense mechanisms” – raised a triable issue of fact. Id. at 4. The Fourth Department also rejected plaintiffs’ argument that the defendant-insurer was collaterally estopped on the “trigger” issue by a California appellate court’s decision in Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co., 52 Cal. Rptr. 2d 690 (Cal. Ct. App. 1996). The Fourth Department reasoned that the issues litigated in the two cases were not identical because, among other things, California and New York “apply different substantive law in determining when asbestos-related injury occurs.” Carrier, Mem. & Order at 4.
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Paul A. Briganti, White and Williams LLPMr. Briganti may be contacted at
brigantip@whiteandwilliams.com
