Rights Afforded to Employees and Employers During Strikes
October 16, 2018 —
Wally Zimolong - Supplemental ConditionsOne of the most powerful weapons in labor’s arsenal is a strike. Like most powerful weapons there is a dichotomy in a strike. On one hand, it can bring about concessions from management that labor seeks. On the other hand, it can permanently change the relationship between management and labor. However, one thing is certain, strike are – to put it mildly – chaotic.
During this chaotic period, employees and employers may wonder what rights they have during union-initiated strikes. We provide some brief explanations below, along with how union litigation can help enforce your rights.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
PA Supreme Court to Rule on Scope of Judges' Credibility Determinations
April 20, 2016 —
Max Kimbrough – White and Williams LLPIn IA Construction v. WCAB (Rhodes), the Commonwealth Court reversed the WCJ’s decision to deny the employer’s Modification Petition on the basis that the employer’s medical expert was not credible. In the underlying case, the claimant was determined to have sustained compensable work injuries to his head, neck and back. The employer subsequently filed a Modification Petition, seeking to modify benefits to Partial Disability based on an Impairment Rating Evaluation (IRE) which found that the claimant had a 34% whole body impairment. The WCJ ultimately denied the employer’s Modification Petition, finding that the IRE physician's categorization of the claimant's injuries and interpretation of the claimant's impairment level from his brain injury was not credible.
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Max Kimbrough, White and Williams LLPMr. Kimbrough may be contacted at
kimbroughm@whiteandwilliams.com
Even Toilets Aren’t Safe as Hackers Target Home Devices
June 11, 2014 —
Amy Thomson – BloombergCome home to a hot iron and smoldering clothes this afternoon? Soon, it may not be a sign of forgetfulness, but rather evidence that you’ve been hacked.
In coming years, your smartphone will be able to lock your house, turn on the air conditioning, check whether the milk is out of date, or even heat up your iron. Great news, except that all that convenience could also let criminals open your doors, spy on your family or drive your connected car to their lair.
“As these technologies become more sophisticated, it opens up a broader spectrum of threats,” said Gunter Ollmann, chief technology officer of IOActive, a tech security firm in Seattle. A world of connected devices makes it possible “for the bad guys to have permanent entry into your household.”
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Amy Thomson, BloombergMs. Thomson may be contacted at
athomson6@bloomberg.net
California Contractor License Bonds to Increase in 2016
December 02, 2015 —
Garret Murai – California Construction Law BlogThe post, which originally appeared on
The Surety Bond Insider, was written by Jon Gottschalk, a member of the SuretyBonds.com Educational Outreach team. on
SuretyBonds.com helps contractors fulfill their bonding requirements.
The Contractors State License Board (CSLB) is requiring all California contractors to purchase a $15,000 bond by January 1, 2016— a $2,500 increase from the $12,500 amount that was previously required. The additional $2,500 was previously accounted for by an additional requirement to obtain a contractor’s license. Those applying for the license had to post the $12,500 surety bond and proof of financial solvency in the amount of $2,500. Essentially, contractors were required to show that their current assets were greater than their liabilities by no less than $2,500. By increasing the bond amount to include that additional $2,500, the CSLB has removed the burden of proving financial solvency from those who wish to obtain their license.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Developer’s Fraudulent Statements Are His Responsibility Alone in Construction Defect Case
February 10, 2012 —
CDJ STAFFThe Texas Court of Appeals ruled on December 21 in the case of Helm v Kingston, a construction defect case. After purchasing what was described as “an extremely well-built” two-bedroom townhouse, Mr. Kingston made complaints of construction defects. Greenway Development did not repair the defects to Kingston’s satisfaction, and he filed notice of suit. In his suit, he claimed that GDI and its president, John Helm, had committed fraud and negligent misrepresentation. Kingston claimed that Helm “fraudulently induced Kingston to believe that the townhouse evidenced the highest quality of workmanship when in fact the quality of workmanship was atrocious.” Helms brought a counterclaim that Kingston’s suit was frivolous.
About four years after Kingston purchased the townhome, the suit proceeded to trial. The trial court determined that Helm was not “liable in his individual capacity,” but this was reversed at appeal.
A second trial was held ten years later on the question of whether Kingston’s unit was a townhome or an apartment. A jury found that Helm “engaged in a false, misleading or deceptive act or practice that Kingston relied on to his detriment.” Kingston was awarded $75,862.29 and an additional $95,000 in attorney fees by the jury. Helms made an unsuccessful appeal to the Appeals Court, after which Kingston was awarded an additional $10,000. Helms then made an unsuccessful appeal to the Texas Supreme Court, which lead to an additional $3,000 for Kingston. There was also a verdict of $48,770.09 in pre-judgment interest and “five percent post-judgment interest accruing from the date of the judgment until the time the judgment is paid. Helm appealed.
In his appeal, Helm raised seven issues, which the court reorganized into five Kingston raised one issue on cross-appeal.
Helms’ first claim was that Kingston “failed to satisfy the requirement of” Texas’s Residential Construction Liability Act and that by not filing under the RCLA, Kingston’s fraud and misrepresentation claims were preempted. Further Helms claimed that the RCLA limited Kingston’s damages. The court rejected this, as the RCLA deals with complaints made to a contractor and not only did Helm fail to “conclusively establish” his “status as a ‘contractor’ under the statutory definition,” Helm testified that he was “not a contactor” at the pre-trial hearing.
Helms’s second claim was that Kingston’s later claim of a misconstructed firewall should be barred, claiming that Kingston “‘had knowledge of a defect in the firewall’ as early as 1997 but did not assert them until 2007.” The court rejected this because Kingston’s claim was that “Helm ‘fraudulently induced Kingston to believe that the townhouse evidenced the highest quality of workmanship when in fact the quality of the workmanship was atrocious.’”
Helms also challenged whether his statements that the residence was of “good quality” constituted fraud and misrepresentation under Texas’s Deceptive Trade Practices-Consumer Protection Act. The court concluded that Helm was in a position to make knowledgeable statements and further that “residential housing units are not artistic works for which quality is inherently a matter of subjective judgment.” Helm also claimed that Kingston could have avoided certain repair expenses through the “exercise of reasonable care.” Helms argued that the repairs could have been made for $6,400. The court disagreed, as these claims were cited only to invoke the DTPA, and that later petitions established additional defects.
Helms’s next claim was that he was not allowed to designate responsible third parties. The court rejected this because there GDI represented matters concerning the residence only through Helm’s statements. The court noted that “Helm is correct that?third parties may be liable for fraud if they ‘participated in the fraudulent transactions and reaped the benefits,’” but they note that “Helm never specifically alleged that GDI or CREIC participated in Helm’s alleged fraudulent transactions.
The final issue in the decision was about court costs, and here the court denied claims on both sides. Helm argued that the award of legal fees were excessive, as they exceeded the actual damages. The court noted that they “may not substitute our judgment for that of the jury,” and also that “the ratio between the actual damages awarded and the attorney’s fees is not a factor that determines the reasonableness of the fees.” But the court also rejected Kingston’s claim for post-judgment interest on $10,312.30 that Helm had deposited in the trial court’s registry. The court noted that the monies were to be paid out upon final judgment, but the mandate did not include any reference to interest.
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Limited Number of Insurance-Related Bills Passed by 2014 Hawaii Legislature
June 11, 2014 —
Tred R. Eyerly – Insurance Law HawaiiVery few insurance-related bills survived the 2014 Hawaii Legislative session, with several consumer-friendly bills failing to make it out of committee.
Here is a summary of the bills that passed:
SB2365: Limits reimbursement of prescription medications in order to prevent drug prices from becoming an unreasonable cost driver of health care in workers' compensation and motor vehicle insurance claims.
SB2470: Appropriates general funds to provide for the sustainability of the Hawaii Health Connector, but provides for greater transparency, stakeholder engagement, and legislative involvement in the activities of the Hawaii Health Connector.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
KB to Spend $43.2 Million on Florida Construction Defects
August 27, 2013 —
CDJ STAFFIn their second quarter filing with the SEC, KB Homes estimates that repairing damage caused by defects in framing, stucco, roofs, and sealant will cost it $43.2 million. That estimate includes homes that are yet to be identified. KB had estimated lower costs earlier, but subsequently determined it was necessary to increase the funds by $15.9. As a result, the firm showed a loss in the second quarter. The company hopes to recover some funds in insurance settlements.
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Appreciate The Risks You Are Assuming In Your Contract
February 10, 2020 —
David Adelstein - Florida Construction Legal UpdatesAPPRECIATE THE RISKS YOU ARE ASSUMING IN YOUR CONTRACT. Otherwise, those risks will come back and bite you in the butt. This language is not capitalized for naught. Regardless of the type of contract you are entering into, there are risks you will be assuming. You need to appreciate those risks because there may be insurance you can obtain to cover that risk.
For instance, exculpatory provisions (or get-out-of-jail provisions) in contracts are enforceable if they are unambiguous. “Such provisions are deemed to be unambiguous and enforceable when the language unequivocally demonstrates a clear and understandable intention for the defendant to be relieved from liability such that an ordinary and knowledgeable person will know what he or she is contracting away.” Pillay v. Public Storage, Inc., 44 Fla.L.Weekly D2744c (Fla. 4th DCA 2019).
An example of an exculpatory provision can be found in the public storage rental contract found in Pillay that read:
(1) ALL PERSONAL PROPERTY IS STORED BY OCCUPANT AT OCCUPANT’S SOLE RISK.
(2) Owner and Owner’s agents . . . will not be responsible for, and Tenant releases Owner and Owner’s agents from any responsibility for, any loss, liability, claim, expense, damage to property . . . including without limitation any Loss arising from the active or passive acts, omission or negligence of Owner or Owner’s agents.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
