Construction Upturn in Silicon Valley
August 17, 2011 —
CDJ STAFFWork resumed after nearly three years on an office tower in Santa Clara, according to the San Jose Mercury News. Work had stalled on the building due to the economy, but now the developer is planning a second five-story building on the site. Other dormant projects in the area are also getting restarted. Santa Clara County saw the addition of 1,800 construction jobs in June.
A spokesperson for the Operating Engineers Local 3 in Alameda told the paper, “two years ago we had five thousand folks on the out-of-work list. It’s now down to about 1,700.”
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Newmeyer & Dillion Attorneys Selected to the 2016 Southern California Super Lawyers Lists
June 09, 2016 —
Newmeyer & Dillion LLPNEWPORT BEACH, Calif. – JUNE 6, 2016 – Prominent business and real estate law firm
Newmeyer & Dillion LLP is pleased to announce that three of the firm’s attorneys,
Jennifer L. Ferrentino,
Robyn E. Frick and
Michael B. McClellan were selected to the
Southern California Super Lawyers 2016 Rising Stars list for business litigation. Each year, no more than 2.5 percent of the lawyers in the state are selected by Super Lawyers to receive this honor. The attorneys will be recognized in the July 2016 issues of Super Lawyers Magazine, Los Angeles Magazine and Orange Coast magazine.
In addition, twelve of the firm’s Newport Beach attorneys were selected to the
2016 Southern California Super Lawyers list, an honor given to no more than five percent of the lawyers in California.
Michael S. Cucchissi, Real Estate
Mark S. Himmelstein, Construction Litigation
Jane M. Samson, Real Estate
Jeffrey M. Dennis, Construction Litigation
Charles S. Krolikowski, Eminent Domain
Robert K. Scott, Insurance Coverage
Gregory L. Dillion, Business Litigation
Thomas F. Newmeyer, Business Litigation
Michael J. Studenka, Employee Litigation: Defense
Joseph A. Ferrentino, Construction Litigation
John A. O'Hara, Construction Litigation
Carol S. Zaist, Business Litigation
Making the list since it was originally published in 2004 is co-founding litigation partner
Greg Dillion who was again selected to the
Top 50: 2016 Orange County Super Lawyers List. In addition,
Jennifer L. Ferrentino, Robyn E. Frick, Jane M. Samson and
Carol S. Zaist were listed in the
2016 Top Women Attorneys in Southern California by Super Lawyers.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. The Rising Stars list is developed using the same selection process except a candidate must be either 40 years old and younger or in practice for 10 years or less.
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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No Damage for Delay? No Problem: Exceptions to the Enforceability of No Damage for Delay Clauses
October 18, 2021 —
Chris Broughton, Jones Walker LLP - ConsensusDocsIntroduction:
Under a no-damage-for-delay clause, the owner is not liable for any monetary damages resulting from delays on the project. In lieu of monetary recovery, the contractor’s remaining remedy is a non-compensatory time extension. These clauses are common at the contractor-subcontractor interface as well.
While no-damage-for-delay clauses are enforced in most jurisdictions, some states, either by statute or case law, have limited the enforceability of no-damage-for-delay clauses. Other states have also limited the enforceability of these clauses on state government contracts, and a select few have outlawed them on all projects regardless if they are publicly or privately owned. Additionally, for subcontractors on federal projects, the Miller Act may provide a way to avoid no-damage-for-delay and recover against the general contractor’s payment bond.
This article provides an overview of no-damage-for-delay clauses and the exceptions to enforcement of these clauses. However, due to the consequences of a no-damage-for-delay clause, it is important to know the terms of your contract and the law that governs your project.
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Chris Broughton, Jones Walker LLPMr. Broughton may be contacted at
cbroughton@joneswalker.com
Quick Note: Can a Party Disclaim Liability in their Contract to Fraud?
April 11, 2022 —
David Adelstein - Florida Construction Legal UpdatesIt is possible for a party to contractually disclaim or otherwise foreclose liability to a fraud claim. However, let’s be honest. It can be done, but rarely is and would require very specific language to EXPLICITLY disclaim or foreclose such liability to a fraud claim.
A recent case, discussed
here, exemplifies this point where as-is language in a purchase-and-sale agreement was NOT specific to contractually foreclose or disclaim liability to a fraud claim.
For a party to contractually waive a fraud claim, there needs to be an express waiver of liability for fraud that might have been made and that any fraudulent misrepresentation, if such fraud was committed, was disclaimed and would not destroy the validity of the parties’ contract.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
South Caroline Holds Actual Cash Value Can Include Depreciation of Labor Costs
July 05, 2021 —
Tred R. Eyerly - Insurance Law HawaiiAnswering a certified question, the South Carolina Supreme Court held that the insurer could calculate actual cash value (ACV) by including an estimate of the depreciation of embedded labor costs. Butler v. Travelers Home & Marine Ins. Co., 2021 S. C. LEXIS 51 (S.C. May 12, 2021).
Two insureds had their homes damaged in separate fires. Each held homeowners' policies with Travelers. The policies provided replacement cost value coverage to repair or replace damaged portions of homes. In the event that the insures chose not to immediately repair or replace the damaged home, the policies afforded payment to the insured for the actual cash value instead of replacement cost value. Both insured elected not to immediately repair or replace their homes, thereby deciding to accept a cash payment for the ACV of the damaged property. Neither was satisfied with the payment and both filed suit in federal district court.
Travelers determined the ACV payment by estimating the replacement cost value (RCV) of the damage and then subtracting depreciation. The certified question presented by the federal district court was whether Travelers could depreciate the labor component of the costs of repair or replacement when determining the ACV.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Design Immunity of Public Entities: Sometimes Designs, Like Recipes, are Best Left Alone
October 21, 2015 —
Garret Murai – California Construction Law BlogApril 23, 1985 will live in infamy.
The Coca Cola Company, responding to diminishing sales as its “sweeter” rival Pepsi-Cola gained market share, announced that it was changing its “secret” recipe and introducing a new kind of Coke, referred to by the public simply as, “new Coke.”
The reaction was unexpected.
People around the world began hoarding “old Coke.” Protest groups, such as the Society for the Preservation of the Real Thing and Old Cola Drinkers of America, sprang up around the county. Angry letters addressed to “Chief Dodo” were sent to Coca-Cola’s chief executive officer. And even Fidel Castro, a longtime Coca-Cola drinker, joined the backlash calling “new Coke” a “sign of American capital decadence.”
By July it was over.
Coca-Cola announced that it would once again produce “old Coke,” and in a sign (I’m sure Fidel Castro would say) of American arrogance, announced that “old Coke” would be produced under the name “Coca-Cola Classic” alongside “new Coke” which would continue to be called “Coca-Cola” suggesting that “new Coke” would be the Coke of today as well as the future. By 1992, however, “new Coke” whose sales dwindled to 3% of market share was demoted to “Coke II” and by 2002 was discontinued entirely.
The moral of the story: Change the recipe at your own risk.
Castro v. City of Thousand Oaks
In the next case, Castro v. City of Thousand Oaks, Case No. B258649, California Court of Appeals for the Second District (August 31, 2015), the corollary might well be change the recipe design at your own risk.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Hawaii Supreme Court Finds Climate Change Lawsuit Barred by “Pollution Exclusion”
November 05, 2024 —
Jason Taylor - Traub Lieberman Insurance Law BlogOn October 7, 2024, the Hawaii Supreme Court answered the question of whether an “accident” includes an insured’s reckless conduct in emitting harmful greenhouse gases (“GHGs”) and whether such emissions are “pollutants” as defined in a general liability policy’s pollution exclusion. In Aloha Petro., Ltd. v. National Union Fire Insurance Co. of Pitt., PA, No., 2024 Haw. LEXIS 179 (Oct. 7, 2024), the Hawaii Supreme Court answered in the affirmative as to both certified questions from the United States District Court for the District of Hawaii, holding that an insured’s reckless conduct can be an “accident” and that GHGs are “pollutants” under the policies’ pollution exclusions.
In the underlying case, the County of Honolulu and the County of Maui (the “Counties”) sued Aloha Petroleum, Ltd. (“Aloha”) and several other fossil fuel companies for climate change-related harms. Namely, the Counties alleged that the fossil fuel industry knew that its products would cause catastrophic climate change, and rather than mitigating their emissions, defendants concealed such knowledge, promoted climate science denial, and increased their production of fossil fuels. Aloha was allegedly on notice that its products caused harmful climate change through its former parent company, Phillips 66, and its current parent company, Sunoco. Given this knowledge, the District Court determined that the Counties allegations constituted reckless conduct by Aloha.
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Washington Supreme Court Upholds King County Ordinance Requiring Utility Providers to Pay for Access to County’s Right-of-Way and Signals Approval for Other Counties to Follow Suit
March 02, 2020 —
Kristina Southwell - Ahlers Cressman & Sleight PLLCOn December 5, 2019, the Washington State Supreme Court released its opinion in King County v. King County Water Districts, et al.,[1] upholding King County’s Ordinance 18403, which requires utility companies who are franchise grantees to pay “franchise compensation” for their use of the County rights-of-way. Generally, utility companies must apply for and obtain from the County a franchise permitting it to do necessary work in the County rights-of-way. [2] Previously, King County only charged an administrative fee associated with issuing such a franchise. But with the new franchise compensation charges, King County estimates that it will raise approximately $10 million dollars per year for its general fund.
Ordinance 18403 passed in November 2016 and was the first of its kind in the state. The ordinance created a rule, set forth in RCW 6.27.080, requiring electric, gas, water, and sewer utilities who are granted a franchise by King County to pay “franchise compensation” in exchange for the right to use the County’s rights-of-way. The rule provides that franchise compensation is in the nature of an annual rent payment to the County for using the County roads. King County decides an initial estimate of the charge by considering various factors such as the value of the land used, the size of the area that will be used, and the density of the households served. But utility companies can negotiate with the County over the final amount of franchise compensation.
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Kristina Southwell, Ahlers Cressman & Sleight PLLCMs. Southwell may be contacted at
kristina.southwell@acslawyers.com
