Can Businesses Resolve Construction Disputes Outside of Court?
August 19, 2024 —
Scott L. Baker - Los Angeles Litigation BlogTime is of the essence in any construction project. So, if a dispute arises at any point, business owners generally wish to avoid the chance of a time-consuming case going to court.
Can California construction businesses
manage these disputes effectively outside of court? It is possible in some cases. Business owners should carefully consider these three steps.
1. Go Back to the Contract
Even if the contract is at the center of the dispute, it is important to refer to any details regarding dispute resolution included within the document. It is common for contracts to have some form of a dispute resolution clause. In such a case, both parties should follow the steps outlined in that agreement.
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Scott L. Baker, Baker & AssociatesMr. Baker may be contacted at
slb@bakerslaw.com
Ritzy NYC Tower Developer Says Residents’ Lawsuit ‘Ill-Advised’
January 17, 2022 —
Chris Dolmetsch - BloombergThe developers of a Manhattan skyscraper that has become one of New York City’s toniest residences said the condo board is trying to squeeze money out of them with a lawsuit that claims bogus design flaws.
The board is seeking $250 million from builders of the 1,396-foot residential tower at 432 Park Avenue that opened in 2015 on the so-called Billionaire’s Row. Their suit alleges the company that developers CIM Group and Macklowe Properties formed to build the structure failed to take into account its unusual height, leading to flooding, noise, vibrations and elevators that are prone to malfunctions.
In a response to the suit filed Wednesday, the company called the building “a treasure” and the suit was “ill-advised.” While the structure needed to be “fine-tuned” when residents started to move in, the board stopped the builders from accessing the facilities and finishing the job “while manufacturing an ever-increasing list of demands,” most of which were not required, according to court filings.
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Chris Dolmetsch, Bloomberg
When OSHA Cites You
April 22, 2024 —
Michael Metz-Topodas - Construction ExecutiveWith the strong bonds that form among construction project teams, workers looking out for each other helps keep safety foremost in everyone’s mind. But sometimes, even the very best intentions alone can’t prevent an occasional misstep—a forgotten hard hat, a sagging rope line—which can and often does result in an OSHA citation. These regulatory reminders can bring unfortunate consequences: penalties, higher insurance premiums, potential worker injury claims, loss of bidding eligibility, loss of reputation and even public embarrassment, because citations are published on OSHA’s website.
Due to citations’ adverse effects, contractors have incentives to minimize them. They can do this by asserting available defenses, because a citation is only an alleged violation, not a confirmed one. But making defenses available begins well before a citation is issued, well before OSHA arrives to a construction site and well before a violation even occurs. Instead, contractors’ ongoing safety programs should incorporate the necessary measures to preserve OSHA citation defenses in three key areas: lack of employee exposure, lack of employer knowledge and impossibility.
EMPLOYEE EXPOSURE
To sustain a citation against an employer, OSHA must not only identify an applicable standard that the company violated but also show that the violation exposed employees to hazards and risk of injury. Absent evidence of actual exposure, OSHA often makes this showing by asserting that performing job functions necessarily exposes employees to the cited hazard.
Reprinted courtesy of
Michael Metz-Topodas, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Metz-Topodas may be contacted at
michael.metz-topodas@saul.com
OSHA Reinforces COVID Guidelines for the Workplace
March 08, 2021 —
Joseph P. Paranac Jr. & Robert M. Pettigrew - White and Williams LLPOn January 29, 2021, the Occupational Safety and Health Administration (OSHA) updated its existing guidelines concerning coronavirus protection measures for the workplace. Focusing on the implementation of workplace protection programs, OSHA’s updated advisory guidance seeks to reinforce the benefits of implementing workplace policies along with the critical role employees have in combatting workplace spread. These guidelines are “intended to inform employers and workers in most workplace settings outside of healthcare to help them identify risks of being exposed to and/or contracting COVID-19 at work and to help them determine appropriate control measures to implement.”
OSHA maintains that the implementation of a strong coronavirus protection program is the most effective way to combat virus spread in the workplace. OSHA has identified 16 categories or elements that an effective coronavirus protection program should address, which include appointing a workplace coordinator and conducting a workplace specific hazard assessment. This assessment should begin by identifying risks in the workplace and developing control measures to mitigate them. The guidance stresses that workers are often the most valuable source of information relating to conditions that contribute to the risk of spread.
Reprinted courtesy of
Joseph P. Paranac Jr., White and Williams LLP and
Robert M. Pettigrew, White and Williams LLP
Mr. Paranac may be contacted at paranacj@whiteandwilliams.com
Mr. Pettigrew may be contacted at pettigrewr@whiteandwilliams.com
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New Green Standards; Same Green Warnings for Architects & Engineers (law note)
January 13, 2014 —
Melissa Dewey Brumback - Construction Law in North CarolinaThe newest version of the LEED ratings system, LEED v4, has officially been released. For a comparison of the major changes between LEED 2009 and LEEDv4, check out this downloadable form from the USGBC.
As the folks at Schinnerer’s pointed out, there is one major change that is fraught with peril for design professionals– the requirement for increased transparency concerning the composition and performance requirements of composition materials.
Notes the insurance carrier:
“While design firms always had a level of responsibility for ongoing product research, the lack of standardized, affirmative industry data made it difficult for design firms and project owners to assess the impact of building materials on human health.
“As with many aspects of sustainability in design and construction, the danger to design firms is likely to come from self-inflicted perils. When a firm accepts responsibility to ‘ensure that a project meets its goals by using the best products that align with project requirements,’ it is essentially giving the project owner a guarantee that is both beyond the firm’s control and uninsurable by any insurance carried by a firm.”
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Melissa Dewey BrumbackMs. Brumback can be contacted at
mbrumback@rl-law.com
The New York Lien Law - Top Ten Things You Ought to Know
December 23, 2023 —
Ralph E. Arpajian - White and Williams LLPOver the course of my career, I have had the privilege of working with and representing numerous construction lenders (and borrowers/developers) in the financing of some of the largest commercial projects in the United States.
A number of these projects have been in New York, where one encounters the New York Lien Law (the “Lien Law”). Many of my clients, particularly those lenders, borrowers, and their counsel, located outside of New York, are often perplexed by my advice regarding the Lien Law and the loan structuring requirements which result. In the hope that it would be helpful (especially for non-New York counsel), I have compiled a “top ten” list outlining, in my view, the most critical (and most perplexing) aspects of structuring New York construction loans under the Lien Law.
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Ralph E. Arpajian, White and Williams LLPMr. Arpajian may be contacted at
arpajianr@whiteandwilliams.com
Tighter Requirements and a New Penalty for Owners of Vacant or Abandoned Storefronts in San Francisco
June 18, 2019 —
Matt Olhausen - Gravel2GavelOrdinance 52-19 became effective in April 2019 and expands upon existing San Francisco Building Code registration requirements for “Vacant or Abandoned” “Commercial Storefronts.”
A storefront becomes “Vacant or Abandoned” once it has been unoccupied for 30 days (among other earlier triggers for blighted or unsecured storefronts). A “Commercial Storefront” is broadly defined as “any area within a building that may be individually leased or rented for any purpose other than Residential Use as defined in Planning Code.” (See § 103.A.5.1 of the San Francisco Building Code.) So, a building that is 97% leased could still contain a Vacant or Abandoned Commercial Storefront, which would technically require registration under the Building Code.
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Matt Olhausen, PillsburyMr. Olhausen may be contacted at
matt.olhausen@pillsburylaw.com
Mobile Home Owners Not a Class in Drainage Lawsuit
March 01, 2012 —
CDJ STAFFComparing it to a “complex construction defect action,” the California Court of Appeals for Orange County has rejected the claims of a group of mobile home owners that they should be certified as a class in their lawsuit against Huntington Shorecliffs Mobilehome Park. The Appeals court sustained the judgment of the lower court. The court issued a decision in the case of Criswell v. MMR Family LLC on January 17, 2012.
The claims made by the group were that the owners and operators of the mobile home park had known of an “on-going and potentially worsening shallow groundwater condition on the property” and had “exacerbated the problem by changing ‘the configuration and drainage related to the hillside that abuts’ the park.” The homeowners claimed that the class should consist of “any past or current homeowner during the same time frame” who had experienced “the accumulation of mold, fungus, and/or other toxins,” “property damage to his/her mobilehome and/or other property resulting from drainage problems, water seepage, water accumulation, moisture build-up, mold, fungus, and/or other toxins,” emotional distress related to drainage problems or mold, and finally health problems “resulting from exposure to drainage problems, water seepage, water accumulation, moisture build-up, mold, fungus, and/or other toxins, in or around one’s home, lot, or common areas of the park.”
The lower court concluded that while the limits of the class were identifiable, they failed to constitute a class in other ways. First, the people affected were small enough in number that they could be brought together. They “are not so numerous that it would be impracticable to bring them all before the Court.”
The court noted that while many of the homeowners would have issues in common, they did not find “a well-defined community of interest among the class members.” The Appeals Court wrote that “the individual issues affecting each mobile home and homeowner will predominate over the common issue of the presence of standing or pooling water in and around the park.” The court noted that each home would be affected differently by water and “the ‘accumulation of mold, fungus, and/or other toxins.’”
While the court conceded that there would be common issues, such as the “defendants’ alleged concealment of excess moisture conditions and their allegedly negligent roadwork and landscaping,” they noted that “these common issues would be swamped by the swarm of individual determinations of property damage, emotional distress, and personal injury.” The Appeals Court cited an earlier case that ruled against certification “if a class action ‘will splinter into individual trials.’” The court affirmed the judgment of the lower court that they could not proceed as a class.
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