Hiring Subcontractors with Workers Compensation Insurance
January 10, 2018 —
David Adelstein - Florida Construction Legal UpdatesYou want to hear more on the POWER of
statutory workers compensation immunity? Well, here it is, because as I have mentioned in the past,
workers compensation immunity is powerful reinforcing the importance for contractors to ensure the subcontractors they hire absolutely have workers compensation insurance. Likewise, subcontractors want to ensure the subcontractors they hire also have workers compensation insurance.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Understanding California’s Pure Comparative Negligence Law
November 13, 2023 —
Yaron Shaham - Kahana FeldIn order for a plaintiff to prove a defendant is negligent, the plaintiff must prove the defendant (1) owed a duty to plaintiff, (2) breached that duty, (3) the breach was the actual and proximate cause of plaintiff’s injury, and (4) the resulting monetary damage. However, for both plaintiffs and defendants it is not an all or nothing game in California. This is because California is a pure Comparative Negligence state.
California’s Comparative Negligence law provides that even if a plaintiff is deemed 99% at fault, the plaintiff can still recover 1% in damages from a defendant. Thus, even if a plaintiff is deemed to be more than 50% (or even 99%) at fault for the incident, the plaintiff could still recover some monetary amount, or the defendant will still have to pay plaintiff, depending on how you see it. In most instances, a jury decides what percentage of fault to assign to each party.
Just as a plaintiff must prove he/she/its negligence case against a defendant, if the defendant claims plaintiff was partially responsible for the incident, the defendant must prove plaintiff was also negligent and said negligence contributed to plaintiff’s injuries. The total amount of monetary responsibility distributed among all defendants and plaintiffs must equal 100%. As crazy as it may sound, a plaintiff found to be 99.9% at fault, is still entitled to recover 0.01% from a defendant in California.
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Yaron Shaham, Kahana FeldMr. Shaham may be contacted at
yshaham@kahanafeld.com
Form Contracts are Great, but. . .
November 12, 2019 —
Christopher G. Hill - Construction Law MusingsRecently I was discussing the ConsensusDOCs with a colleague and friend and had a revelation. These forms are used often (though somewhat less than their AIA counterparts and less than they should be used). Quick disclaimer: I have been a part of a couple of drafting committees for ConsensusDOCs and am friends with Brian Perlberg, general counsel to the drafting effort.
Some of the reason that these forms are so widely used is that they can be applied in a general way to almost any situation. Both sets of forms have documents for small and large jobs. Both have forms for Contractor/Owner and Contractor/Subcontractor. In short, a form document exists for about any scenario.
I am writing now to let you know that while forms are great, they are just that. . . forms. Like with any set of forms, they need to be “tweaked” for your particular project. In my opinion they both have great clauses in them, and both have some flexibility built in (ConsensusDOCS more at the moment than the AIA forms). At the very least, construction professionals need to use this flexibility to conform the documents to their particular situation and do so within the documents themselves and not with addenda that “strike” or “modify” particular clauses.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Angela Cooner Named "Top Lawyer" by Phoenix Magazine in Inaugural Publication
October 10, 2022 —
Angela L. Cooner - Lewis BrisboisPhoenix, Ariz. (September 7, 2022) – Phoenix Partner Angela L. Cooner was recently recognized for her work in Commercial Litigation by Phoenix Magazine in its inaugural list of Top Lawyers.
Ms. Cooner was named a Top Lawyer after Phoenix Magazine partnered with research firm Data Joe to collect and tally online survey results from local practicing attorneys. The survey asks respondents to provide the names of up to three attorneys they deem the best in 39 legal specialties. After the votes are tallied and the nominees are confirmed to be members of Valley-based firms and in good standing, the top 10-20% of vote-getters in each category are named to the Top Lawyers list.
Ms. Cooner is a member of Lewis Brisbois’ Construction and General Liability Practices. For more than two decades, she has managed an array of matters, including construction litigation, complex commercial litigation, professional liability cases, product liability issues, premises liability cases, and real estate litigation. Earlier this year, she was appointed vice-chair of the State Bar of Arizona’s inaugural Board of Legal Specialization Construction Defect Law Advisory Commission.
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Angela L. Cooner, Lewis BrisboisMs. Cooner may be contacted at
Angela.Cooner@lewisbrisbois.com
California Supreme Court Rules Developers can be Required to Include Affordable Housing
June 17, 2015 —
Beverley BevenFlorez-CDJ STAFFThe Los Angeles Times reported that in a unanimous decision, the California Supreme court justices declared that “cities and counties” can “require developers to sell some housing at below-market rates.”
Chief Justice Tani Cantil-Sakauye wrote, “It will come as no surprise to anyone familiar with California’s current housing market that the significant problems arising from a scarcity of affordable housing have not been solved over the past three decades,” as quoted in the Los Angeles Times.
Los Angeles Mayor Eric Garcetti applauded the decision: “This gives Los Angeles and other local governments another possible tool to use as we tackle our affordable housing crisis.”
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Competent, Substantial Evidence Carries Day in Bench Trial
February 26, 2024 —
David Adelstein - Florida Construction Legal UpdatesA number of construction disputes, if tried, are tried through a bench trial meaning the judge is serving in the role of the jury in the construction trial. In a bench trial, two points are important. First, “the factual findings of the judge are entitled to the weight of a jury verdict.” Q.G.S. Development, Inc. v. National Lining Systems, Inc., 2024 WL 357984 (Fla. 3d DCA 2024) (internal quotation and citation omitted). Second, “[t]he appellate court is only authorized to reverse if such findings are not supported by competent, substantial evidence.” Id. These two points need to be appreciated when participating in any construction dispute that will be resolved through a bench trial.
A recent construction dispute highlights these two points. In Q.G.S. Development, a contractor was hired to refurbish a golf course which included constructing a lake. The contractor was going to construct the lake, prepare the subgrade, perform dewatering, and it hired a subcontractor to install a reservoir liner at the bottom of the lake.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Never, Ever, Ever Assume! (Or, How a Stuck Shoe is Like a Construction Project Assumption)
October 21, 2019 —
Melissa Dewey Brumback - Construction Law in North CarolinaThis summer, I had the fortune of taking a trip to Europe. The first place I visited was Amsterdam. A lovely town with a lot of culture and more canals than you can shake a stick at. I was meeting family there, but had hours to kill ahead of time. So, I decided to take the train from the airport into the City Centre, leave my bags at the train station luggage locker, and begin exploring.
My plan took its first misstep when I attempted to board the train. Not being in a hurry, I let the other passengers get on first. Sure, I noticed the train conductor blowing his whistle while I stepped onto the train, but figured I was fine since I was already on the steps up. Until, that is, the door began to close, with me in the doorway, suitcase in the train, one foot inside, and one foot mid step up to the cabin. The door closed on my backpack (which was still on my back), but I managed to force it into the train compartment. My shoe, however, was not quite as lucky. Part of my shoe made it inside, and part was outside the door.
No worry– just look for the door release mechanism, right? Wrong! There was none. The train started up, with my shoe still halfway in and halfway out of the train. (Luckily my foot itself made it inside all in one piece). The conductor came along to scold me, and told me that he could *probably* rescue my shoe once we got to Central Station. In the meantime, I sat on a nearby jump seat, keeping tabs on my shoe and fuming that this was *not* the way I planned to start my vacation. Long story short– the train conductor was able to salvage my shoe, but not without a lot of commentary on how I should never have boarded the train after the whistle blew. Lesson learned.
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Melissa Dewey Brumback, Ragsdale Liggett PLLCMs. Brumback may be contacted at
mbrumback@rl-law.com
Landlords, Brace Yourselves: New Law Now Limits Your Rental Increases & Terminations
March 02, 2020 —
Kyle Janecek – Newmeyer DillionCalifornia can be an especially expensive place to live. While this is the common wisdom, residents of the state are also painfully aware that location is an equally important factor. Yet, to curb unscrupulous actions in certain areas and expansive rental increases, Governor Gavin Newsom has signed AB-1482, which is a state-wide limitation on yearly rental increases, prompting potential additions to leases, and additional notices that landlords are required to give to tenants. Failure to do so may cost landlords unnecessary costs and unforeseen complications around the termination of a tenancy.
How Does the Rental Cap Work?
The law sets forth three ways that rental increases may be limited: (1) a cap of 5% plus the percent change in the cost of living; (2) a cap of 10%; or (3) where local rent or price control that restricts annual increases in the rental rate to an amount less than the state law. The cap that applies is the one that is the most restrictive on the landlord. For example, if the cost of living has gone up by 6%, and there is a local law that restricts rental increases by 15%, then the state law would cap the landlord to a rental increase of 10%.
Notably, this doesn't count any discounts or incentives that are applied to the rent, if they are (a) listed separately and (b) clearly stated within the residential lease agreement. Thus, even if the effective increase would be beyond the applicable cap, the landlord is not obligated to cap rent using the discounted rental fees.
Finally, this does not prohibit the landlord from freely setting a rent for new tenants. The cap only applies to existing tenants.
Exempt Properties from the Law
Certain properties are also exempt from the rental cap law, allowing landlords to increase rents without limitation for the residential properties below:
- Housing restricted by deed for purposes of affordable housing.
- New housing with a certificate of occupancy that has been granted within the previous 15 years.
- Condominiums or townhouses provided that the owner is not (a) a real estate investment trust; (b) a corporation, or (c) a limited liability trust.
- A duplex in which one of the units is owner-occupied as the owner's primary residence.
'Just Cause' for Terminations Is a Necessity
Notably, AB-1482 is not limited to rent restrictions. AB-1482 also restricts the ability of a landlord to evict tenants after the tenant has been occupying the property for over 12 months without just cause. Just cause includes items typical to an ordinary eviction action, such as a failure to pay rent or a default of a material term of the lease, or nuisance actions. Importantly, the legislature provided "no-fault just cause" such as the intent to occupy the real property by the owner or one of their family members, withdrawal of the property from the rental market, compliance with a government agency or an intent to substantially remodel the property.
In the event that the just cause is "no-fault," then the owner must either (a) assist the tenant in relocating by providing a direct payment of a full month's rent to the tenant within 15 calendar days of the notice; or (b) waive the payment of the last month's rent. Effectively, this puts a cost on the landlord to terminate a tenancy. Importantly, an owner's failure to do either of those actions will render the termination of tenancy void, and cannot be contractually waived.
This does not apply to any of the housing types exempt under the rental cap provision, or (a) transient and tourist hotel occupancy; (b) housing accommodations in a nonprofit hospital, religious facility, extended care facility, licensed residential care facility for the elderly, or in an adult residential facility; (c) housing accommodations in which the tenant shares bathroom or kitchen facilities with the owner; (d) single-family owner-occupied residences where the owner leases no more than two units or bedrooms; or (e) student housing for kindergartens or grades 1 to 12.
Notwithstanding, landlords must also provide additional language within their lease giving notice of the rental cap law and the tenant's rights regarding termination. This language is stated within the law, and must be given in 12 point font.
What Landlords Must Do Right Now
Ultimately, landlords will have to show more care towards termination processes and rental increases moving forward.
At a bare minimum, landlords will have to revise their form leases for new tenants and prepare addendums for any tenancies continuing in 2020. While the bare minimum is the new, state-mandated language to inform tenants of their rights, other language may be required if the landlord wishes to reserve a right to terminate in order to take occupancy for themselves.
Furthermore, for any leases going forward, any landlord that wants to provide a temporary discount or incentive to rent their units will have to include language outlining and specifically stating the presence of the discount or incentive, or chance that a tenant may contest the increase in rent as a violation of the rental cap portion of the law. Similarly, the changes above will have to be implemented as an addendum to any leases being renewed.
A failure to do any of these actions risks that a tenant may contest either the termination for being improper or an increase in rent, as an excessive rent hike.
Kyle Janecek is an associate on the firm's Transactional team, and has experience with drafting leases for landlords and tenants, real estate purchase and sale agreements, and loans secured by real estate. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 70 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's success and bottom line. 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 Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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