DC Circuit Approves, with Some Misgivings, FERC’s Approval of the Atlantic Sunrise Natural Gas Pipeline Extension
December 02, 2019 —
Anthony B. Cavender - Gravel2GavelThe U.S. Court of Appeals for the DC Circuit decided the case of Allegheny Defense Project, et al. v. Federal Energy Regulatory Commission on August 2, 2019. In a Per Curiam opinion, the court denied petitions challenging the Commission’s orders permitting the Transcontinental Gas Pipe Line Company’s expansion of an existing natural gas pipeline which extends from northern Pennsylvania across the Carolinas into Alabama. The expansion is called the “Atlantic Sunrise Project.” In February 2017, FERC approved the expansion, and denied various petitions, filed by environmental organizations and affected landowners, who then challenged the decision in the DC Circuit. However, the court concluded, on the basis of the administrative record, that these challenges “cannot surmount the deferential standards of agency review and binding DC Circuit precedent.” Under the law, the Commission must consider whether the projected pipeline project meets a market need, and whether the public benefits outweigh the harms. If both criteria are satisfied, FERC will, as in this instance, issue a certificate authorizing the pipeline’s construction, and that certificate also empowers the certificate holder to exercise eminent domain authority under to the Natural Gas Act when necessary. It was the latter consequence of the FERC’s determinations that caused several Pennsylvania landowners to file their objections with the Commission and seek to stay construction.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Virtual Mediation – How Do I Make It Work for Me?
December 21, 2020 —
Adrian L. Bastianelli, III & Jennifer Harris - Peckar & Abramson, P.C.Mediation took the construction industry by storm in the late 1980’s and has become a staple for resolving construction claims. Today, most construction contracts, including the ConsensusDocs, require mediation as a condition precedent to binding dispute resolution, whether it be arbitration or litigation. As a result, many construction executives have spent long hours sitting in conference rooms trying to reach resolution with their counterpart through mediation in order to avoid the alternative – costly arbitration or litigation that often produces an unsatisfactory result.
While many businesses have foreclosed the possibility of meeting in person due to the COVID-19 pandemic, the contractual requirements for mediation remain. Thus, in most cases, in-person or live mediation is no longer an option; however, attorneys and mediators have developed a virtual process to replace the live process. With a new process comes many questions: Does the virtual process work? What are the best practices and pitfalls for virtual mediation? Will virtual mediation continue when COVID-19 fades away? How do I make virtual mediation work for me? The answers to these questions and more are discussed below.
Reprinted courtesy of
Adrian L. Bastianelli, III, Peckar & Abramson, P.C. and
Jennifer Harris, Peckar & Abramson, P.C.
Mr. Bastianelli may be contacted at abastianelli@pecklaw.com
Ms. Harris may be contacted at jharris@pecklaw.com
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How Robotics Can Improve Construction and Demolition Waste Sorting
September 11, 2023 —
Emily Newton - Construction ExecutiveCommercial construction projects generate a lot of waste. Managing this debris is crucial to minimizing the industry’s environmental impact, but it’s often a time-consuming and error-prone process. Robotic waste sorting provides a better alternative.
Why C&D Waste Management Must Improve
The current state of construction and demolition (C&D) debris management leaves considerable room for improvement. Nearly all C&D waste takes
decades to break down in landfills—and the sector generates hundreds of millions of tons of it annually.
More efficient debris management would help firms protect the environment and their bottom line. Poor waste management practices also take an economic toll. Recycling extends materials’ useful life, helping minimize resource costs. Inefficient waste sorting may additionally lead to unnecessarily high workforce expenses and incur lost business from firms’ lack of sustainability.
Reprinted courtesy of
Emily Newton, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Congratulations to our 2019 Southern California Super Lawyers Rising Stars
July 30, 2019 —
John Arbucci, Frances Brower, Lisa Hsiao, Kristian Moriarty & Michael Parme - Haight Brown & Bonesteel LLPCongratulations to attorneys John Arbucci, Frances Brower, Lisa Hsiao, Kristian Moriarty and Michael Parme who were selected to the 2019 Southern California Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
T. Giovanni “John” Arbucci,
Frances Brower,
Lisa Hsiao,
Kristian Moriarty and
Michael Parme
Mr. Arbucci may be contacted at jarbucci@hbblaw.com
Ms. Brower may be contacted at fma@hbblaw.com
Ms. Lisa may be contacted at lhsiao@hbblaw.com
Mr. Kristian may be contacted at kmoriarty@hbblaw.com
Mr. Parme may be contacted at mparme@hbblaw.com
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Thank Your Founding Fathers for Mechanic’s Liens
August 04, 2015 —
Craig Martin – Construction Contract AdvisorYep, our founding fathers, Thomas Jefferson and James Madison specifically, Craig Martin, Construction Attorney Lamson Dugan & Murray LLPwere responsible for proposing the first mechanic’s lien laws in the United States. Mechanic’s liens were not a new concept when the first law was passed in the United States; France, Spain and other countries already had them. But, in England, where landownership was limited to the upper classes, the concept of giving a tradesman an interest in the land for his labors was a truly foreign concept.
The Early Years—Pre Mechanic Lien
In the 1700s, there was no right to a mechanic’s lien. The possession of land was never deemed to be changed by its improvement and the laborer or material supplier was held to have acquired no right of lien in the property. The only remedy the laborer or material supplier had was to bring an action against the land owner. If the laborer or material supplier obtained a judgment, he would acquire the lien of a judgment creditor. A Treatise on the law of Mechanics’ Liens on Real and Person Property, 1893.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Construction Manager’s Win in Michigan after Michigan Supreme Court Finds a Subcontractor’s Unintended Faulty Work is an ‘Occurrence’ Under CGL
August 03, 2020 —
Gabrielle Szlachta-McGinn - Newmeyer DillionOn June 29, 2020, the Michigan Supreme Court overturned a longstanding precedent that commercial general liability (“CGL”) insurers have historically relied upon to deny insurance coverage for claims involving pre-1986 CGL policies. See Hawkeye-Security Ins. Co. v. Vector Const. Co., 185 Mich. App. 369, 372, 460 N.W.2d 329, 331 (1990). In its recent ruling, the state Supreme Court unanimously agreed that an Insurance Services Office, Inc. (“ISO”) 1986 standard CGL policy, which is sold to construction contractors across the United States, provides coverage for property damage to a policyholder’s work product that resulted from a subcontractor’s unintended faulty workmanship. Skanska USA Bldg. Inc. v. M.A.P. Mech. Contractors, Inc., No. 159510, 2020 WL 3527909 (Mich. June 29, 2020).
In 2008, Skanska USA Building, Inc., the construction manager on a renovation project for Mid-Michigan Medical Center, signed a subcontract with defendant M.A.P. Mechanical Contractors (“MAP”) to install a new heating and cooling (“HVAC”) system. Id. During the renovation, MAP installed some of the expansion joints in the new HVAC system backwards. Id. The defective installation caused approximately $1.4 million in property damage to concrete, steel and the heating system, which Skanska discovered nearly two years after MAP completed the project. Id. After performing the repairs and replacing the damaged property, Skanska sought repayment for the repair costs from MAP and also submitted a claim to Amerisure seeking coverage as an insured under the CGL policy. Id. When Amerisure rejected Skanska’s claim, Skanska sued both parties. Id. Amerisure relied on the holding in Hawkeye and argued that MAP’s defective workmanship was not a covered “occurrence” under the CGL policy, which the policy defined as an accident. Id. at *4.
The Michigan Court of Appeals ignored the express language contained in the CGL policy and applied a prior appellate court precedent from Hawkeye, finding that MAP’s faulty work was not an “occurrence” and thus, did not trigger CGL coverage. Id. at *4. The Court of Appeals further reasoned that Skanska was an Amerisure policyholder and that the only property damage was to Skanska’s own work, which was not covered under the CGL policy. Id. at *5.
In a landmark decision, the Michigan Supreme Court reversed, holding unanimously that the Court of Appeals incorrectly applied the holding of Hawkeye because it failed to consider the impact of the 1986 revisions to standard CGL insurance policies. Id. at *10. Chief Justice Bridget M. McCormack explained that the Hawkeye decision rested on the 1973 version of the ISO form insurance policy, which specifically excluded certain business risks from coverage such as property damage to a policyholder’s own work. Id. The Supreme Court agreed that while Hawkeye was correctly decided, it did not apply here because the 1986 revised ISO policy includes an exception for property damage caused by a subcontractor’s unintentional faulty work. Id.
The Supreme Court said that under the plain reading of the current CGL policy language, an “accident” could include a subcontractor’s unintentional defective work that damaged a policyholder’s work product and thus, may qualify as an “occurrence” covered under the policy. Id. at *9. The Supreme Court defined an “accident” (which was not defined in the Amerisure policy) as “an undefined contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.” Id. at *5; see Allstate Ins. Co. v. McCarn, 466 Mich. 277, 281, 645 N.W.2d 20, 23 (2002). The Supreme Court noted that there was no evidence suggesting that MAP purposefully installed the expansion joints backwards, nor was there evidence indicating that the parties affected by MAP’s negligence anticipated, foresaw, or expected MAP’s defective installation or property damage. Skanska, 2020 WL 3527909, at *4. Therefore, the Supreme Court concluded that an “occurrence” may have happened, which would trigger coverage under the CGL policy. Id. at *10.
Although this landmark decision changes Michigan law, the decision is limited to cases involving the 1986 ISO policy language revisions to CGL insurance policies. Id. The Supreme Court's decision does not overturn Hawkeye, but rather limits Hawkeye’s authority to cases involving the 1973 ISO form. Id.
Gabrielle Szlachta-McGinn was a summer associate at Newmeyer Dillion as part of the firm's 2020 summer class. You may learn more about Newmeyer Dillion's construction litigation services and find the group's key contacts at https://www.newmeyerdillion.com/construction-litigation/.
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Top 10 Hurricane Preparedness Practices for Construction Sites
September 25, 2018 —
Andrew Gilbert - Construction ExecutiveLast year, the National Oceanic and Atmospheric Administration (NOAA) recorded that the North Atlantic saw the third highest number of major hurricanes to date. North America alone saw three tropical storms and four hurricanes make landfall, the most since 2005.
As the 2018 hurricane season takes shape (running from June 1 to Nov. 30), it’s imperative to begin construction site hurricane planning efforts early and to be as prepared as possible prior to any storm. Preparing for a storm can help ensure the safety of not only project and onsite teams, but also of the surrounding communities.
1. DEVELOP AND REVIEW A HURRICANE PREPAREDNESS AND SAFETY PLAN
Prior to hurricane season, make sure the project contractor has provided the team with a hurricane preparedness and safety plan. Review this plan with the entire team and the owner. This document outlines the exact timeline and steps the contractor will take to safely secure the project site in the event of a storm. The integrated process is especially important when dealing with renovation projects, exterior upgrades or projects that connect new construction to existing facilities.
Reprinted courtesy of
Andrew Gilbert, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Gilbert may be contacted at
andrew.gilbert@cbre.com
Victoria Kajo Named One of KNOW Women's 100 Women to KNOW in America for 2024
May 13, 2024 —
Lewis Brisbois NewsroomLos Angeles, Calif. (April 30, 2024) – Los Angeles Partner Victoria Kajo has been named to global media company KNOW Women's 2024 100 Women to KNOW in America list, which honors the top 100 female leaders across North America. The honorees were recognized at the annual KNOW Women Summit, held from April 21-23 at The Palomar Hotel in Phoenix, Arizona.
The annual 100 Women to KNOW in America award, presented by JPMorgan Chase, recognizes women entrepreneurs, executives, creatives, and philanthropists who "exemplify what it means to be high achieving and ambitious on the next level and who continue to pour into their communities as they do so," according to KNOW Women. Ms. Kajo was selected as one of this year's honorees following a nomination and interview process.
Ms. Kajo is a member of Lewis Brisbois' Professional Liability Practice. She has extensive experience with professional liability litigation, having defended lawyers, design professionals and real estate professionals against claims of alleged negligent acts and omissions in the performance of their professional services. Ms. Kajo also has broad experience in general civil litigation matters involving errors and omissions, real estate, wrongful foreclosures, labor and employment law, civil rights, fraud, personal injury, breach of contract and unlawful detainer matters, amongst others.
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Lewis Brisbois
