One Way Arbitration Provisions are Enforceable in Virginia
October 07, 2019 —
Christopher G. Hill - Construction Law MusingsHere at Construction Law Musings, I’ve discussed arbitration clauses (pros and cons) as well as the fact that in our fair Commonwealth, contracts are enforced as written (for better or worse). A case out of the Eastern District of Virginia takes both of these observations and uses them to make it’s decision.
In United States ex rel. Harbor Constr. Co. v. T.H.R. Enters., the Newport News Division of the Eastern District of Virginia federal court considered the following provision and it’s enforceability:
At CONTRACTOR’s sole election, any and all disputes arising in any way or related in any way or manner to this Agreement may be decided by mediation, arbitration or other alternative dispute resolution proceedings as chosen by CONTRACTOR…. The remedy shall be SUBCONTRACTOR’s sole and exclusive remedy in lieu of any claim against CONTRACTOR’s bonding company pursuant to the terms of any bond or any other procedure or law, regardless of the outcome of the claim. The parties further agree that all disputes under this Subcontract shall be determined and interpreted pursuant to the laws of the Commonwealth of Virginia….
This provision was the crux of the argument made by T. H. R., the Defendant, in making a motion to dismiss or stay the lawsuit for payment filed by Harbor Construction. As background, Harbor Construction contracted with T. H. R. to perform work at Langley Air Force Base. Alleging non-payment of approximately $250,000.00, Harbor filed a complaint with three counts, one under the Federal Miller Act, one for breach of contract, and a third for unjust enrichment.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
ASCE Statement on EPA Lead Pipe and Paint Action Plan
December 27, 2021 —
Tom Smith, Executive Director - American Society of Civil Engineers (ASCE)WASHINGTON, DC. – The American Society of Civil Engineers applauds
the Lead Pipe and Paint Action Plan released yesterday by the Environmental Protection Agency to help communities across the country remove lead pipes out of their drinking water systems.
Access to clean and safe drinking water is critical to public health and economic prosperity, and ASCE's
2021 Report Card for America's Infrastructure. gave a grade of C- for the drinking water category. It is estimated that as many as 10 million American households still have lead water pipes in use, which can put at risk the health and safety of families, particularly children. For utilities, moving forward with completing an inventory of lead service lines as part of the Lead and Copper Rule is a critical step, so we can get a better national picture of the scope of the problem.
This plan will allocate nearly $3 billion from the recently passed Infrastructure Investment and Jobs Act (IIJA) to states for lead service line replacements in FY 2022 and will prioritize communities with the highest lead levels. While additional investment will be needed, it is a significant down-payment on a national shared priority of clean drinking water for all Americans. It will allow utilities of all sizes to accelerate their rate of lead pipe replacement and offer technical assistance to those communities just embarking on these types of projects.
For more information about the American Society of Civil Engineers, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Trends and Issues which Can Affect Workers' Compensation Coverage for Construction Companies
December 26, 2022 —
Saxe Doernberger & Vita, P.C.Recent trends in workers’ compensation coverage suggest that the number of claims are likely to continue to increase, specifically for high-risk industries, like the construction industry. This article explores multiple trends and issues which are likely to impact workers’ compensation insurance for construction companies. Several of these trends and issues reflect demographic, labor, and technological shifts, which have important implications for contractors and construction companies.
1. Technological Innovation and Worker Safety
New wearable technologies and other data-collecting products such as helmets which warn of employee fatigue and sensors which help with ergonomic corrections have emerged in the markets to support safety measures in the construction industry. Although devices such as these tools can help business owners to demonstrate the implementation of safety programs to their insurance carriers, they can also distract the workers who are wearing them or go through a product malfunction, which could lead to injuries in the workplace and could also result in higher workers’ compensation premiums. While these new technological devices are intended to support worker safety on construction sites, it is also important for business owners to evaluate the potential risks of new technologies on a project site.
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Saxe Doernberger & Vita, P.C.
Court Finds Duty To Defend Environmental Claim, But Defense Limited to $100,000
August 14, 2023 —
Tred R. Eyerly - Insurance Law HawaiiWhile agreeing with the insured there was a duty to defend, the court determined the defense of an environmental claims was limited to $100,000. Casa Nido Partnership v. JAE Kwon, 2023 U.S. Dist. LEXIS 97701 (N.D. Calif. June 5, 2023).
In 1976, Casa Nido purchased the property and remains the current owner to this day. Catherine O'Hanks owned and operated a dry-cleaning facility at the property from 1960 to 1992.
In August 2016, Casa Nido learned of Tetrachloroethylene (PCE) subsurface contamination. Casa Nido stipulated that it did not know, nor had any reason to know, before 2016, of the existence of the subsurface contamination. Casa Nido alleged that due to equipment malfunction or improper usage, there were sudden and accidental spills and equipment overflows of PCE during the 32-year period that defendant O'Hanks operated the dry-cleaning business on the property. Casa Nido spent hundreds of thousands of dollars remediating the environmental damage.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Effective July 1, 2022, Contractors Will be Liable for their Subcontractor’s Failure to Pay its Employees’ Wages and Benefits
July 25, 2022 —
Edward O. Pacer & David J. Scriven-Young - Peckar & AbramsonOn June 10, 2022, Illinois Governor J.B. Pritzker signed two House Bills that amend the Illinois Wage Payment & Collections Act, 820 ILCS 115 et. seq. (“Wage Act”), to provide greater protection for individuals working in the construction trades against wage theft in a defined class of projects. Pursuant to this new law, every general contractor, construction manager, or “primary contractor,” working on the projects included in the Bill’s purview will be liable for wages that have not been paid by a subcontractor or lower-tier subcontractor on any contract entered into after July 1, 2022, together with unpaid fringe benefits plus to attorneys’ fees and costs that are incurred by the employee in bringing an action under the Wage Act.
These amendments to the Wage Act apply to a primary contractor engaged in “erection, construction, alteration, or repair of a building structure, or other private work.” However, there are important limitations to the amendment’s applicability. The amendment does not apply to projects under contract with state or local government, or to general contractors that are parties to a collective bargaining agreement on a project where the work is being performed. Additionally, the amendment does not apply to primary contractors who are doing work with a value of less than $20,000, or work that involves only the altering or repairing of an existing single-family dwelling or single residential unit in a multi-unit building.
Reprinted courtesy of
Edward O. Pacer, Peckar & Abramson and
David J. Scriven-Young, Peckar & Abramson
Mr. Pacer may be contacted at epacer@pecklaw.com
Mr. Scriven-Young may be contacted at dscriven-young@pecklaw.com
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The Coronavirus, Zoom Meetings and Now a CCPA Class Action
April 13, 2020 —
Jeffrey M. Dennis & Heather H. Whitehead - Newmeyer DillionWith the ongoing COVID-19 (commonly referred to as the Coronavirus) pandemic and orders to “stay at home” in place across the United States, most organizations have been and continue to utilize remote arrangements. The software program known as “Zoom Meetings”, has become immensely popular as a means to facilitate meetings amongst employees, team members and other consultants rather than meeting in person.
Despite such status, Zoom Video Communications, Inc. (Zoom) has been named as a defendant in one of the first, and certainly the most high-profile, class action lawsuits to be filed in California alleging violations of the California Consumer Privacy Act of 2018 (CCPA).
The Class Action
The complaint filed alleges that Zoom did not protect the personal information of its users as it collected personal information and then shared such information to third parties, including Facebook, without adequate disclosures to users. The allegations specifically refer to Zoom’s boasting about its maintenance of users’ privacy and that they can be trusted with user data. Further, it is noted that there is no disclosure provided in the Zoom Privacy Policy that disclosed that personal information was being shared with Facebook and other third parties.
Reprinted courtesy of
Jeffrey M. Dennis, Newmeyer Dillion and
Heather H. Whitehead, Newmeyer Dillion
Mr. Dennis may be contacted at jeff.dennis@ndlf.com
Ms. Whitehead may be contacted at heather.whitehead@ndlf.com
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An Overview of the New EPA HVAC Refrigerant Regulations and Its Implications for the Construction Industry
September 30, 2024 —
Stefanie A. Salomon, Nadia Ennaji & Ali Heyat - Peckar & Abramson, P.C.The U.S. Environmental Protection Agency (EPA) recently announced a series of significant changes to the rules governing the use of refrigerants in heating, ventilation, and air conditioning (HVAC) systems. These changes, which were promulgated under the American Innovation and Manufacturing (AIM) Act, are designed to phase down the use of hydrofluorocarbons (HFCs), a class of potent greenhouse gases.
The AIM Act: A Game-Changer for HVAC Industry
The recent changes to refrigerant regulations by the EPA signify a substantial shift in environmental policy that will have profound implications for the construction industry. For the construction industry, this means a transition to next-generation technologies that do not rely on HFCs. The AIM Act’s sector-based restrictions will affect a wide range of equipment, including refrigeration and air conditioning systems integral to building design and function.
Starting January 1, 2025, the manufacturing or importing of any product in specified sectors that uses a regulated substance with a global warming potential of 700 or greater is prohibited (40 C.F.R. § 84.54(a)). The specified sectors listed include R-410A, the most common refrigerant used in the HVAC industry. The installation of systems using a regulated substance with a global warming potential of 700 or greater in specified sectors is allowed until January 1, 2026, provided that all system components are manufactured or imported before January 1, 2025. See 40 C.F.R. § 84.54 (c). “Installation” of an HVAC system is defined as the completion of assembling the system’s circuit, including charging it with a full charge, such that the system can function and is ready for its intended purpose. See 40 C.F.R. § 84.52.
Reprinted courtesy of
Stefanie A. Salomon, Peckar & Abramson, P.C. and
Nadia Ennaji, Peckar & Abramson, P.C.
Ms. Salomon may be contacted at ssalomon@pecklaw.com
Ms. Ennaji may be contacted at nennaji@pecklaw.com
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In Appellate Division First, New York Appellate Team Successfully Invokes “Party Finality” Doctrine to Obtain Dismissal of Appeal for Commercial Guarantors
December 23, 2024 —
Dean Pillarella - Lewis BrisboisNew York, N.Y. (November 20, 2024) - In Roc-Le Triomphe Associates, LLC v. DeSouza, 2024 NY Slip Op 05654 (1st Dep’t 2024), Associate Dean Pillarella, a member of the Appellate Practice, successfully invoked the party finality doctrine to obtain the dismissal of an appeal for the firm’s commercial guarantor clients.
The action concerned rent allegedly due and owing under a commercial lease by the lease’s tenant and guarantors. Pursuant to a 2022 order, the guarantors were awarded summary judgment and dismissal of all claims against them, with the landlord’s claims against the tenant left intact. After the decision and order was served with notice of entry by the prevailing party, the landlord did not file a notice of appeal from the order but, instead, filed a notice of appeal from a later judgment months after the time to appeal the order had expired.
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Dean Pillarella, Lewis BrisboisMr. Pillarella may be contacted at
Dean.Pillarella@lewisbrisbois.com
