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Georgia Federal Court Holds That Pollution Exclusion Bars Coverage Under Liability Policy for Claims Arising From Discharge of PFAS Into Waterways

December 18, 2022 — Paul Briganti - White and Williams
On December 5, 2022, the U.S. District Court for the District of Georgia held that a total pollution exclusion (TPE) in a CGL policy relieved the insurer of any obligation to defend or indemnify a recycling company in a putative class action alleging PFAS contamination of Georgia waterways. See Grange Ins. Co. v. Cycle-Tex Inc., et al., Order, Civ. A. No. 4:21-cv-00147-AT (N.D. Ga. Dec. 5, 2022). The decision adds to a slowly-developing body of case law addressing coverage issues arising out of PFAS-related claims. In Grange, the insured, Cycle-Tex, Inc., was the operator of a thermoplastics recycling facility in Dalton, Georgia. Cycle-Tex and other defendants – which included chemical suppliers, carpet manufacturers, intermediaries, the City of Dalton and the Dalton-Whitfield Solid Waste Authority – were named in a putative class action complaint alleging that residents of Dalton had been injured as a result of the defendants’ discharge of PFAS into local waterways. The complaint sought damages for: (1) alleged harm to the residents’ health by virtue of ingesting contaminated water; (2) alleged property damage resulting from the contamination of the public water supply; and (3) the payment of surcharges and heightened water rates as a result of the alleged contamination. Read the court decision
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Reprinted courtesy of Paul Briganti, White and Williams
Mr. Briganti may be contacted at brigantip@whiteandwilliams.com

Biden Administration Issues Buy America Guidance for Federal Infrastructure Funds

April 25, 2022 — Garret Murai - California Construction Law Blog
As you know, late this past year Congress passed and President Biden signed the largest infrastructure bill since President Franklin D. Roosevelt’s “New Deal” in 1933. The infrastructure bill provides $1.2 trillion in spending on the nations’ infrastructure over the next five years. On Monday, the Biden Administration issued Initial Implementation Guidance requiring that, beginning May 14, 2022, materials paid for with infrastructure bill funds be made in America. The Guidance, which implements the “Buy America” provisions of the infrastructure bill requires that: 1. All iron and steel used in a project be produced in the United States; Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

It’s Time to Start Planning for Implementation of OSHA’s Silica Rule

May 03, 2017 — Nathan Owens & Louis “Dutch” Schotemeyer – Newmeyer & Dillion LLP
Getting a notification from OSHA that your company is being investigated for a health or safety violation is an unwanted disruption to your business that could lead to a hefty monetary fine. Worse yet, if your company is found to have committed multiple violations, OSHA may categorize your company as a severe violator, which makes you subject to follow-up inspections. In the last 6 years, OSHA has added 520 companies to the Severe Violator Enforcement Program - sixty percent of which are in the construction industry. New OSHA regulations impacting the construction industry may result in more companies facing investigations and fines, or worse yet, laying off workers and unable to compete for new work. In 2013, OSHA proposed a new mandate to reduce silicosis in workers. The mandate, which was revised multiple times before being made final in March 2016, requires that employers ensure their workers are exposed to no more than 50 micrograms of crystalline silica in an eight hour period (down from the current standard of 250 micrograms). Under the new mandate, employers are also held to heightened reporting requirements, protective measures and medical testing for employees with extended exposure to silica. In the construction industry alone, OSHA believes the new mandate will prevent 1,080 cases of silicosis and more than 560 deaths. Builder and trade groups believe the new mandate will result in the loss of tens of thousands of jobs and cost the building industry billions of dollars. The National Association of Home Builders estimates that the Silica Rule will cost homebuilders $1,500 per start. While the two sides mount their arguments and seek support, how to implement the rule and its long term feasibility are still contested questions. Recognizing the challenges employers will have with the heightened requirements of the Silica Rule, OSHA just announced that enforcement is being delayed 90 days to develop additional guidance for implementation of the rule in the construction industry. The new start date for enforcement of the Silica Rule is September 23, 2017.* Many in the industry are hoping the Trump administration repeals the Silica Rule like they have “blacklisting” and the Volks rule. However, until that happens, OSHA expects your company to implement processes to ensure compliance by the new start date. *The Silica Rule was adopted by Cal/OSHA in August 2016 even though Cal/OSHA’s own silica standard had been in place since 2008. Cal/OSHA adopted the federal standard with the June 23, 2017 effective date; however; in an effort to synchronize with OSHA, Cal/OSHA recently announced that the effective date in California will also be September 23, 2017. Nathan Owens is the Las Vegas Managing Partner of Newmeyer & Dillion, and represents businesses and individuals operating in a wide array of economic sectors including real estate, construction, insurance and health care in all stages of litigation in state and federal court. For questions related to the OSHA and the Silica Rule, you can reach him at Nathan.Owens@ndlf.com. Louis “Dutch” Schotemeyer is an associate in Newmeyer & Dillion’s Newport Beach office. Dutch’s practice concentrates on the areas of business litigation, labor and employment law, and construction litigation. For questions related to OSHA or the Silica Rule, you can reach him at Dutch.Schotemeyer@ndlf.com Read the court decision
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High Court Case Review Frees Jailed Buffalo Billions Contractor CEO

August 22, 2022 — Mary B. Powers & Debra K. Rubin - Engineering News-Record
Hidden amid the U.S. Supreme Court's flurry of high-profile rulings that ended its current term—such as overturning Roe v. Wade and scaling back federal regulation of greenhouse gas emissions—was a less-noticed decision to take a case next year that could change the fortunes of a convicted New York contractor who was serving a federal prison term for bid-rigging. Reprinted courtesy of Mary B. Powers, Engineering News-Record and Debra K. Rubin, Engineering News-Record Ms. Rubin may be contacted at rubind@enr.com Read the full story... Read the court decision
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Feds Used Wire to Crack Las Vegas HOA Scam

July 31, 2013 — CDJ STAFF
Court documents have revealed that the FBI used informants wearing listening devices in order to uncover the plan to take over Las Vegas area homeowner associations with the intent of bilking the residents through backdoor agreements on construction defect claims. The Las Vegas Review-Journal notes one important step was when the FBI managed to get a member of the Mission Pointe board to act as an informant. The FBI informant was recruited by one of the conspirators, Sami Robert Hindiyeh. The informant eventually spoke with Benzer himself. The plan was to convince the community manager of Mission Pointe to take bribes, all part of rigging the board election. At one point, the informant was paid $20,000 for his help in convincing the manager to take part. The manager had agreed to play along in the FBI sting. Ralph Priola, one of the conspirators, told the informant that “as long as we keep everything on the up and up, that’s the way our company operates.” Later Priola asked the informant if legitimate ballots could be swapped out for those voting for Benzer’s candidates. But the election didn’t happen. The FBI raided Benzer’s office, bringing the scam to its end. Read the court decision
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Can a Lease Force a Tenant's Insurer to Defend the Landlord?

October 10, 2022 — Kerianne Kane Luckett - Saxe Doernberger & Vita, P.C.
Can an indemnification clause in a commercial lease obligate a tenant’s insurer to defend a landlord? Recently, the United States District Court for the Northern District of New York said, “Yes!” On August 9, 2022, the district court issued a decision in ConMed Corp. vs. Federal Insurance Company, holding that the indemnification clause in a policyholder’s lease triggered the insurer’s duty to defend the landlord in an action arising out of the tenant’s negligence. Facts of the Case ConMed is a medical technology company that leases warehouse space in Georgia from Breit Industrial Canyon (“the Landlord”) to sterilize its medical equipment. ConMed’s employees filed suit against ConMed and a contractor that performed the sterilization, alleging injuries caused by exposure to excessive amounts of chemicals used in the sterilization process (the “ConMed Action”). Thereafter, ConMed’s employees filed a separate lawsuit against the Landlord, alleging that the Landlord permitted storage of unsafe levels of the chemicals at the warehouse without adequate ventilation (the “Landlord Action”). The lease agreement required ConMed to indemnify the Landlord “except in the event of, and to the extent of, Landlord’s negligence or willful misconduct.” Read the court decision
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Reprinted courtesy of Kerianne Kane Luckett, Saxe Doernberger & Vita, P.C.
Ms. Luckett may be contacted at KKane@sdvlaw.com

BWB&O Senior Associate Kyle Riddles and Associate Alexandria Heins Obtain a Trial Victory in a Multi-Million Dollar Case!

May 01, 2023 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is excited to share that Newport Beach Senior Associate Kyle Riddles and Associate Alexandria Heins obtained a significant trial victory on behalf of their client in a multi-million dollar dispute stemming from the construction of a commercial expansion project at a beachfront resort. The owner of the resort alleged that the general contractor was responsible for a significant delay to the completion of the expansion project. The general contractor filed a cross-complaint against BWB&O’s client in an attempt to pass through the delay claims to BWB&O’s client. The general contractor’s delay expert alleged a total 441 days of delay to the completion of the project. A significant portion of the delay was apportioned to BWB&O’s client, for which it faced substantial contractual damages. Senior Associate Kyle Riddles expertly crossed key witnesses and obtained testimony that was extremely favorable to its client. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Champagne Wishes and Caviar Dreams. Unlicensed Contractor Takes the Cake

August 31, 2020 — Garret Murai - California Construction Law Blog
Before the Kardashians, before Empire, before Crazy Rich Asians there was Lifestyles of the Rich and Famous with Robin Leach. The next case, Moore v. Teed, Case No. A153523 (April 24, 2020), 1st District Court of Appeals, is about the unfulfilled wishes and dashed dreams of the $13 million dollar “fixer upper.” Moore v. Teed The $13 Million Dollar “Fixer Upper” Justin Moore just wanted to buy a house in San Francisco. But he couldn’t afford one in the neighborhoods he preferred. But in 2011, luck struck, when Moore met Richard Teed, a real estate agent with “over 25 years of experience as a building contractor,” “an extensive background in historic restorations” and a “deep understanding of quality construction.” Teed told Moore that he could locate a “lower-priced fixer-upper in a choice neighborhood and then renovate it.” Moore was sold. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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