New York Appeals Court Rekindles the Spark
March 16, 2017 —
Lian Skaf - White and Williams LLPIn John Trimble, et al. v. City of Albany, et al., 2016, 144 A.D.3d 1484; 42 N.Y.S. 3d 432 (N.Y. App. Div.), the Supreme Court of New York, Appellate Division, addressed the issue of governmental immunity for municipal fire companies. The court held that the plaintiff, John Trimble (Trimble), had sufficient evidence related to the four-pronged test for establishing a “special relationship” between a municipality and a citizen for liability to attach. In addition, the court held that the defendants were not entitled to summary judgment on the issue of governmental immunity. Specifically, regarding the latter holding, the court stated that, when there is no actual choice made on the part of the government, the government’s actions cannot be considered discretionary and immunity will not apply.
In the case at hand, a fire occurred at Trimble’s home on the evening of February 2, 2013. Trimble called 911 and the Department of Fire and Emergency Services for the City of Albany (the Department) responded. After extinguishing the fire, the Department conducted an investigation and cleared the home. The Department’s investigators then told Trimble that the fire was extinguished and it was safe to enter the home. Trimble did so, removing some items so that he could stay with relatives that night. Several hours later, there was a rekindle and the rekindled fire destroyed the home.
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Lian Skaf, White and Williams LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
US Court Disputes $1.8B AECOM Damage Award in ‘Remarkable Fraud’ Suit
April 26, 2021 —
Mary B. Powers - Engineering News-RecordA federal appeals court has thrown out a $1.8-billion award granted by a lower court three years ago to an AECOM unit in a bizarre legal battle involving a Nevada company that claimed to have won multiple contracts using the name of Morrison Knudsen—the former well-known Boise-based construction contractor that was sold in 1996, and through acquisitions, became part of design-build giant AECOM in 2014.
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Mary B. Powers, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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AB5 Construction Exemption – A Checklist to Avoid Application of AB5’s Three-Part Test
February 18, 2020 —
Blake Dillion - Payne & Fears LLPConstruction companies have a unique opportunity to avoid the application of the restrictive new independent contractors law that took effect this year. This article provides a checklist that will help construction companies determine whether their relationships with subcontractors qualify for this exemption.
California’s Assembly Bill 5 (“AB5”), which went into effect Jan. 1, 2020, enacts into a statute last year’s California Supreme Court decision in
Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor.
Certain professions and industries are potentially exempt from this standard, including the construction industry. The ABC test does not apply to the relationship between a contractor and an individual performing work pursuant to a subcontractor in the construction industry, if certain criteria are met. In order for the “construction exemption” to apply, the contractor must demonstrate that all of the following criteria are satisfied.
- The subcontract is in writing;
- The subcontractor is licensed by the Contractors State License Board and the work is within the scope of that license;
- If the subcontractor is domiciled in a jurisdiction that requires the subcontractor to have a business license or business tax registration, the subcontractor has the required business license or business tax registration;
- The subcontractor maintains a business location that is separate from the business or work location of the contractor;
- The subcontractor has the authority to hire and to fire other persons to provide or assist in providing the services;
- The subcontractor assumes financial responsibility for errors or omissions in labor or services as evidenced by insurance, legally authorized indemnity obligations, performance bonds, or warranties relating to the labor or services being provided; and
- The subcontractor is customarily engaged in an independently established business of the same nature as that involved in the work performed.
The contractor must be able to establish each of the above criteria for the construction exemption to apply. If the contractor is successful, the long standing multi-factor test for determining independent contractor vs. employee status as described in
S.G. Borello & Sons, Inc. v. Dep’t of Industrial Relations, 48 Cal. 3d 341 (1989) will apply.
You should review your processes and procedures for engaging subcontractors to ensure that you can satisfy the above criteria. If you have questions about the application of AB5, the construction exemption, or the
Borello factors, you should speak with an attorney.
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Blake A. Dillion, Payne & FearsMr. Dillion may be contacted at
bad@paynefears.com
Defining Constructive Acceleration
March 22, 2021 —
David Adelstein - Florida Construction Legal UpdatesWhen it comes to the definition of “constructive acceleration,” the case of Fraser Const. Co. v. U.S., 384 F.3d 1354 (Fed.Cir. 2004) is a cited case and contains an instructive definition, quoted below, for proving a constructive acceleration claim.
In a nutshell, a constructive acceleration claim is when the contractor incurs added costs for trying to complete the contract on time when it should be provided extensions of time to perform based on excusable delay (i.e., delay not caused by the contractor). These added costs could be bringing in additional supervision to manage the work, adding manpower to perform the work, working overtime, working weekends, adding more shift work, stacking trades, etc. However, just because a contractor claims they have been constructively accelerated does not make it so. The contractor has to actually ask for an extension of time based on an excusable delay and the owner either denied the extension or unreasonably sat on the request for an extension of time; thus, the contractor incurred significant costs to accelerate in order to finish the project on time because it was deprived of a requested time extension for excusable delay.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Stop by BHA’s Booth at WCC and Support the Susan G. Komen Foundation
May 12, 2016 —
Beverley BevenFlorez-CDJ STAFFIf you’re attending the annual West Coast Casualty Seminar at the Disneyland Hotel today and tomorrow, be sure to stop by the Bert L. Howe & Associates, Inc., booth and
Sink a Putt for Charity. This year, participant’s efforts
on the green will help benefit the Susan G. Komen Race for the Cure. As in years past, sink a putt in the BHA golf challenge and win a $25 Best Buy gift card, and for every successful putt made, BHA will make a $25 cash donation in the golfer’s name to the Susan G. Komen Foundation.
New this year, BHA is hosting three
Championship Rounds and during those periods BHA will double their charitable contributions. For every ATTEMPTED (sink or miss), BHA will make a $50 donation to Susan G. Komen, and for every putt MADE (sunk), the golfer will also win a $50 Best Buy gift card.
Championship rounds are going on today between the times of 10:30am-10:45 am, 3:00pm-3:30pm, and 5:30pm-6:30pm. So be sure to get over to the BHA booth for your chance to support important cancer research as well as possibly taking home a nice gift card for yourself.
BHA also wishes to thank Dave Stern for all of his hard work for the construction defect community in putting together this
must go to seminar and for promoting such worthwhile charities each year.
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AEM Pursuing ISO Standard for Earthmoving Grade-Control Data
March 09, 2020 —
Jeff Rubenstone - Engineering News-RecordCiting the growing and increasingly crowded field of grade-control systems and site-layout technology, the Association of Equipment Manufacturers (AEM) announced on Feb. 18 that it is working with the International Organization for Standardization (ISO) on a common standard for grade-control data sharing.
Jeff Rubenstone, Engineering News-Record
Mr. Rubenstone may be contacted at rubenstonej@enr.com
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2021 Construction Related Bills to Keep an Eye On [UPDATED]
March 08, 2021 —
Christopher G. Hill - Construction Law MusingsEach year here at Musings, I try and highlight some key construction industry-related bills that are winding their way through the Virginia General Assembly. This year is no different, though this year does not have the action level that prior years have had.
Without further ado, here are those that I spotted and which I will be “Tracking” as they move through the sausage-making process:
HB2288–
Virginia Public Procurement Act; construction contracts; requirement to submit list of subcontractors. Requires bidders or offerors on contracts for construction of $250,000 or more to submit along with their bid or proposal a list of all subcontractors, regardless of tier, that the bidder or offeror intends at the time of submitting the bid or proposal to use on the contract to perform work valued at $50,000 or more, including labor and materials. The bill requires such list to include certain information about each contractor. This bill also includes a re-passage provision that requires that it be re-enacted in the 2022 session to become effective. Finally, the Senate General Laws and Technology committee has continued this to the First Special Session.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Ruling Dealing with Constructive Changes, Constructive Suspension, and the Implied Covenant of Good Faith and Fair Dealing
January 22, 2024 —
David Adelstein - Florida Construction Legal UpdatesA dispute pending in the Armed Services Board of Contract Appeals (ASBCA) dealt with interesting legal issues on a motion to dismiss. See Appeals of McCarthy Hitt-Next NGA West JV, ASBCA No. 63571, 2023 WL 9179193 (ASBCA 2023). The dispute involves a contractor passing through subcontractor claims due to impacts caused by the COVID-19 pandemic and the government’s response to the pandemic. More particularly, the claim centers on the premise that the government “failed to work with [the contractor] in good faith to develop a collaborative and cooperative approach to manage and mitigate the impacts and delays arising from the COVID-19 pandemic.” See Appeals of McCarthy Hitt.
The contractor (again, submitting pass through claims from subcontractors) claimed: (a) constructive changes to the contract entitling it to an equitable adjustment under the Changes clause of Federal Acquisition Regulation (F.A.R.) 52.243-4; (b) construction suspensions of the contractor’s work entitling it to an equitable adjustment under the Suspensions of Work clause of F.A.R. 52-242-14; and (c) the government breached the implied covenant of good faith and fair dealing. Each of these legal issues and theories will be discussed below because they are need-to-know legal issues. Keep these legal issues in mind, and the ASBCA’s ruling on the motion to dismiss as its analysis may demonstrate fruitful in other applications.
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dma@kirwinnorris.com
