Governor Murphy Approves Legislation Implementing Public-Private Partnerships in New Jersey
August 28, 2018 —
Steven M. Charney & Charles F. Kenny - Peckar & Abramson, P.C.On Tuesday, August 14, 2018, New Jersey Governor Phil Murphy signed Senate Bill S-865, creating the state’s new Public-Private Partnership (PPP) law, making New Jersey the latest state to embrace this burgeoning delivery system for the construction of public infrastructure projects. The new law goes into effect 180 days from today.
Peckar & Abramson (P&A) has teamed with both The Associated Construction Contractors of New Jersey (ACCNJ) and the Association for the Improvement of American Infrastructure (AIAI) who have been at the forefront in promoting this landmark legislation. P&A anticipates that the new law will create multiple opportunities for much needed public building and infrastructure projects in the state. In our recent Client Alert (June 29, 2018), we highlighted the numerous opportunities that will be available as a result of the PPP legislation, notably for the delivery of projects that may not have otherwise come to fruition.
Reprinted courtesy of
Steven M. Charney, Peckar & Abramson, P.C. and
Charles F. Kenny, Peckar & Abramson, P.C.
Mr. Charney may be contacted at scharney@pecklaw.com
Mr. Kenny may be contacted at ckenny@pecklaw.com
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One-Upmanship by Contractors In Prevailing Wage Decision Leads to a Bad Result for All . . . Perhaps
July 19, 2021 —
Garret Murai - California Construction Law BlogFights between contractors can be a bit like Mad magazine’s “Spy vs. Spy” with each side trying to out outwit and one-up one another. The next case, Division of Labor Standards Enforcement v. Built Pacific, Inc., Case No. D076601 (March 15, 2021), is a case in point.
The Built Pacific Case
Built Pacific, Inc. was a subcontractor to Austin Sundt Joint Venture on a public works project known as the San Diego Regional Airport Authority Project.
In 2015, following an investigation by the California Division of Labor Standards Enforcement (DLSE), the DLSE issued a Civil Wage Penalty Assessment of $119,319.76 based on Built Pacific’s failure to pay prevailing wages. The DLSE also named Austin Sundt in the Civil Wage Assessment pursuant to Labor Code 1743 which makes contractors and subcontractors jointly and severally liable for wage violations. As a result of the Civil Wage Assessment, Austin Sundt withheld approximately $70,000 in retention from Built Pacific.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
One World Trade Center Due to Be America’s Tallest and World’s Priciest
February 10, 2012 —
CDJ STAFFAs One World Trade Center rises, so does the price tag. After construction delays and cost overruns, the cost of the building at the site of the September 11 attacks has risen to $3.8 billion. Part of the expense of the skyscraper is the heavily reinforced base of the building. The elevator shafts are also heavily reinforced, all part of guarding against future terrorist attacks.
In comparison, the world’s tallest tower, the Burj Khalifa in Dubai, cost only $1.5 billion, less than half the cost of One World Trade Center. As a result, the Port Authority does not see the building as being profitable in near future. In order to fund it, the agency is raising tolls on bridge and tunnel traffic.
Currently, about the half the unfinished building is leased. Construction is expected to conclude in 2013.
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Triable Issue of Fact Exists as to Insurer’s Obligation to Provide Coverage Under Occurrence Policy
March 08, 2021 —
Valerie A. Moore & Kathleen E.M. Moriarty – Haight Brown & Bonesteel LLPIn Guastello v. AIG Specialty Ins. Co. (No. G057714. filed 2/19/21 ord. pub. 2/23/21), a California appeals court held that triable issues of material fact exist which precluded summary judgment for an insurer seeking to disclaim coverage on the basis that the “occurrence” pre-dated the policy period where a dispute exists as to the timing of the subject “occurrence.”
In Guastello, a subcontractor built retaining walls from 2003 to 2004 for a housing development in Dana Point, California. In 2010, one of these retaining walls collapsed causing damage to a residential lot owned by Thomas Guastello.
Reprinted courtesy of
Valerie A. Moore, Haight Brown & Bonesteel LLP and
Kathleen E.M. Moriarty, Haight Brown & Bonesteel LLP
Ms. Moore may be contacted at vmoore@hbblaw.com
Ms. Moriarty may be contacted at kemoriarty@hbblaw.com
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Significant Victory for the Building Industry: Liberty Mutual is Rejected Once Again, This Time by the Third Appellate District in Holding SB800 is the Exclusive Remedy
December 15, 2016 —
Richard H. Glucksman & Ravi R. Mehta – Chapman Glucksman Dean Roeb & Barger Bulletin I. Elliott Homes, Inc. v. Superior Court (Certified for Publication, Cal. Ct. App. Dec. 2, 2016
The California Court of Appeal for the Third Appellate District recently elaborated on the scope of the Right to Repair Act, commonly known as SB-800 (“Act”). In
Elliott Homes, Inc. v. Superior Court of Sacramento County (Kevin Hicks, et al.) (certified for publication, Cal. Ct. App. Dec. 2, 2016), the Court considered whether the Act (and specifically the Act’s pre-litigation procedure) applies, when homeowners plead construction defect claims based only on common law causes of action, as opposed to violations of the building standards set forth in the Act (
Civil Code §896). The Court answered this question affirmatively.
The homeowners of seventeen (17) single-family homes filed a Complaint against the builder of their homes, Elliott Homes, Inc. (“Elliott”), alleging common law causes of action for construction defects. Elliott filed a motion to stay the litigation on the ground that the homeowners failed to comply with the pre-litigation procedure set forth in the Act. The trial court denied the motion, agreeing with the homeowners that this pre-litigation procedure did not apply because the homeowners had not alleged a statutory violation of the Act. Elliott appealed. The Court of Appeal purely considered the question of whether the Act, including its pre-litigation procedure, applies when a homeowner pleads construction defect claims based on common law causes of action, and not on statutory violations of the Act’s building standards.
To answer this question, the Court analyzed a recent case decided by the Court of Appeal for the Fourth Appellate District:
Liberty Mutual Ins. Co. v. Brookfield Crystal Cove, LLC (2013) 219 Cal.App.4th 98. In this subrogation case, a builder’s insurer asserted common law causes of action (but not statutory building standard violations) alleging construction defects against the builder to recover amounts paid to the homeowner after a sprinkler system failure caused extensive damage to the subject property. The trial court sustained the builder’s demurrer to the Complaint on the ground that it was time-barred under the Act. The Court of Appeal reversed the trial court’s order, holding that common law construction defect claims arising from actual damages are not covered by the Act because “the Act does not provide the exclusive remedy in cases where actual damage has occurred.” (
Liberty Mutual, 219 Cal.App.4th 98, 109).
The
Elliott Court declined to follow
Liberty Mutual, finding that that Court failed to properly analyze the language of the Act. The
Elliott Court analyzed both the statutory scheme and the legislative history of the Act to arrive at the conclusion that common law causes of action for construction defects do indeed fall within the purview of the Act.
According to the
Elliott Court, the Act “broadly applies to
any action seeking recovery of damages arising out of, or related to deficiencies in…residential construction and in such an action, a homeowner’s claims or causes of action shall be limited to violation of the standards set forth in the Act, except as specified.” Further, the Act expressly provides that “no other cause of action for a claim covered by this title or for damages recoverable under Section 944 is allowed.”
Civil Code §943(a). In turn,
Civil Code §944 allows for a recovery for the cost of repairing a building standard violation, or for the cost of repairing any damage caused by such a violation, among other things.
The limited exceptions to the Act’s applicability concern the enforcement of a contract, or any action for fraud, personal injury, or violation of a statute. Civil Code §943(a). Additionally, the Act does not apply to condominium conversions. Civil Code §896.
The Elliott Court explains that apart from these exceptions, the Legislature intended the Act to apply to all construction defect claims (regardless of damage) relating to the construction of residential properties whose sales contracts are signed after January 1, 2003. There is no exception in the Act, express or implied, for common law causes of action.
Next, the Court turns to the Act’s legislative history to buttress this conclusion. This history makes clear that the Act is a legislative response to the California Supreme Court’s holding in
Aas v. Superior Court (2000) 24 Cal.4th 627, that construction defects in residential properties are only actionable in tort when actual property damage manifests. Senate Judiciary Committee hearings indicate that the Act was the product of protracted negotiations between varying interested parties, including construction industry trade groups and consumer protection groups. The Legislature intended (1) to promulgate building standards, violations of which would be actionable, even without damage, and (2) to allow homeowners to recover for actual damage caused by construction defects not covered by the building standards. In other words, the Act was intended to provide homeowners redress regardless of whether damage had manifested.
Therefore, the Court concluded that common law causes of action for construction defects, regardless of damage, are subject to the pre-litigation procedure set forth in the Act. The Court issued a writ of mandate directing the trial court to vacate its earlier order, and to enter a new order granting Elliott’s motion to stay the litigation until the homeowners (and Elliott) have satisfied the pre-litigation procedure of the Act.
II. McMillin Albany, LLC v. Superior Court (2015) 239 Cal.App.4th 1132
Similar to the Third Appellate District Court’s ruling in
Elliott, the Fifth Appellate District Court also rejected the holding of
Liberty Mutual in a matter now pending before the California Supreme Court:
McMillin Albany, LLC v. Superior Court (2015) 239 Cal.App.4th 1132 (review granted and opinion superseded sub nom.
Albany v. Superior Court 360 P.3d 1022). Also similar to
Elliott, in
McMillin a group of homeowners filed common law construction defect claims against the builder of their homes. The builder,
McMillin, moved to stay the litigation pending compliance with the Act’s pre-litigation procedure. The trial court denied the motion, holding that the Act does not apply because the homeowners have not asserted statutory building standard violations contained within the Act.
In reasoning substantially similar to that of
Elliott, the
McMillin Court rejected Liberty Mutual’s holding that the Act is not the exclusive remedy for pursuing construction defect claims, with or without damage. Thus, the
McMillin Court issued a writ of mandate to vacate the trial court’s earlier order and to enter a new order granting McMillin’s motion to stay.
On November 24, 2015, the California Supreme Court granted the homeowners’ petition for review. In August of 2016, briefing was completed and the matter is now awaiting the scheduling of arguments. CGDRB will continue to closely monitor the pending appeal of this matter to the California Supreme Court, as well as all related developments.
Reprinted courtesy of
Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and
Ravi R. Mehta, Chapman Glucksman Dean Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Mehta may be contacted at rmehta@cgdrblaw.com
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Henderson Engineers Tests AI for Building Systems Design with Torch.AI
September 26, 2022 —
Aarni Heiskanen - AEC BusinessTorch.AI is testing a new artificial intelligence application with Henderson Engineers, a national building systems design firm, to unlock the creative and problem solving potential of the firm’s more than 1,000 employees.
Henderson Engineers is a building systems design and engineering firm that works on projects across the business, community, health, retail, and venue sectors. Their projects include many high-profile projects, such as SoFi Stadium, host site for the 2022 Super Bowl. They know how the industry relies on highly complex information contained in equally complex unstructured data: drawings, images, PDFs, handwriting, raw text.
Earlier this year, Henderson began testing new artificial intelligence from
Torch.AI that could learn to read complex construction and engineering documents and diagrams.
“When Kevin Lewis, Henderson’s CEO, and I got together to first discuss the partnership, I could tell they were already thinking way ahead of everyone else,” says Brian Weaver, Chairman and CEO of Torch.AI. “As an engineering firm they are meticulous, thoughtful, strategic. We quickly saw the potential impact these new AI systems could have for their amazingly talented teams and are excited to continue growing our relationship.”
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Another Law Will Increase Construction Costs in New York
May 29, 2023 —
Bill Wilson - Construction Law ZoneNew York recently enacted legislation known as Carlos’ Law, which increases penalties for corporate liability for the death of, or serious injury to, an employee. The bill, S.621B / A.4947B, was named after Carlos Moncayo, a construction worker killed in a trench collapse on a New York City construction project. Moncayo’s employer repeatedly flouted safety rules and ignored warnings of dangerous conditions on its construction site before failing to properly support the trench that collapsed and killed Moncayo. Moncayo’s employer was convicted for his death, but the penalty was light. The company was sentenced to pay only $10,000, the maximum penalty at the time for any company convicted of a felony in New York State. The legislature responded with Carlos’ Law, which increases accountability for “employers,” and expands the scope of “employees” covered.
The corporate criminal law, NY Penal § 20.20(2)(c)(iv), imposes liability on an employer when “the conduct constituting the offense is engaged in by an agent of the corporation while acting within the scope of his employment and on behalf of the corporation, and the offense is . . . in relation to a crime involving the death or serious physical injury of an employee where the corporation acted negligently, recklessly, intentionally, or knowingly.” An “agent” of an employer is any “director, officer or employee of a corporation, or any other person who is authorized to act on behalf of the corporation.” § 20.20(a). An “employee” now includes any person providing labor or services for remuneration for a private entity or business within New York State without regard to an individual’s immigration status, and includes part-time workers, independent contractors, apprentices, day laborers and other workers. § 10.00 (22). The penalties for criminal corporate liability for the death or serious injury of an employee now include maximums of $500,000 when centered on a felony, and $300,000 when centered on a misdemeanor. § 80.10(1)(a) and (b).
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Bill Wilson, Robinson & Cole LLPMr. Wilson may be contacted at
wwilson@rc.com
Ill-fated Complaint Fails to State Claims Against Broker and FEMA
September 10, 2014 —
Tred R. Eyerly – Insurance Law HawaiiA complaint lodged against the insureds' broker and FEMA was dismissed for failure to state a claim. Lopez v. State Farm Gen. Ins. Co., 2014 U.S. Dist. LEXIS 109803 (E.D. La. Aug. 8, 2014).
The insureds held a Standard Flood Insurance Policy (SFIP) issued by FEMA, but sold by the broker. The insureds alleged that their property was totally destroyed by Hurricane Isaac. FEMA paid the insureds $234,513.02 for damage to their dwelling and $80,566.17 for its contents, for a total of $315,079.19. This was $34,920.81 below the policy limits. The insureds sued, claiming FEMA negligently miscalculated their damages, misvalued their property, and improperly adjusted their claim. The insureds also alleged that the broker failed to properly advise them regarding the nature of their coverage, the true value of their property, or to purchase the correct amount of insurance on their behalf.
The negligent procurement claim against the broker failed because the insureds did not allege any specific facts tending to establish that the broker failed to use reasonable diligence in procuring their insurance. Likewise, the negligent misrepresentation claim against the broker was dismissed. Insurance agents had a duty to supply their customers with correct information, and they could be liable for negligent misrepresentation if they provided incorrect information and an insured was damaged. Here, the insureds did not allege a breach of the duty to supply correct information.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
