In a Win for Property Owners California Court Expands and Clarifies Privette Doctrine
March 28, 2018 —
Garret Murai – California Construction Law BlogWe’ve written before about the
Privette doctrine, which
generally holds that a higher-tiered party is not liable for injuries sustained by employees of a lower-tiered party under the peculiar risk doctrine,
here,
here,
here and
here. We’ve also talked about some of the
exceptions to the
Privette doctrine, including the non-delegable duty doctrine and the negligent exercise of retained control doctrine, which provide that a hirer cannot rely on the
Privette doctrine if it owed a non-delegable duty to an employee of an independent contractor or if it retained control over the work of an employee of an independent contractor and negligently exercised that control in a manner that affirmatively contributes to injuries to that employee.
In the next case,
Delgadillo v. Television Center, Inc., Second District Court of Appeals, Case No. B270985 (February 2, 2018), the Court examined whether a property owner could be held liable under the non-delegable duty doctrine and negligent exercise of retained control doctrine for failing to provide structural anchor bolts on its buildings which led to the death of an employee of window washing company.
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Garret Murai, Wendel, Rose, Black, & Dean, LLPMr. Murai may be contacted at
gmurai@wendel.com
Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage
January 05, 2017 —
Masaki J. Yamada – Ahlers & Cressman PLLCWashington Courts allow an insurer to determine its duty to defend an insured against a lawsuit based only on the face of the complaint and the limitations of the insurance policy. This is otherwise known as the “eight corners” rule (four corners of the complaint plus the four corners of the policy). In other words, the insurance company is not permitted to rely on facts extrinsic to the complaint in order to deny its duty to defend an insured. See Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 763 (2002). The laws in Washington provide greater protection to the insured over the insurer when it comes to the insurer’s duty to defend. The duty to defend a claim is triggered if a claim could “conceivably” be covered under the policy. See Woo v. Fireman’s Insurance, 161 Wn.2d 43 (2007). If there is any ambiguity in a policy with regard to coverage, the ambiguity is interpreted in favor of the insured.
As a result, contractors in Washington regularly tender claims or potential claims to their insurers even when damage has not occurred but will occur in the imminent future. Especially in the context of construction defect cases, a contractor will tender such a claim to its insurer to trigger the broad duty of the insurer to provide a defense. We also regularly recommend this to our contractor clients. For example, if a building owner serves a contractor with a claim that the construction and installation of a window system will imminently cause leaks and corrosion, we would recommend that the contractor tender the claim to its commercial general liability insurer. Washington courts have found a duty to defend when there are allegations in the complaint that covered damages will occur in the imminent future.
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Masaki J. Yamada, Ahlers & Cressman PLLCMr. Yamada may be contacted at
myamada@ac-lawyers.com
GSA Releases Updated Standards to Accelerate Federal Buildings Toward Zero Emissions
August 12, 2024 —
The U.S. General Services AdministrationWASHINGTON — The U.S. General Services Administration (GSA) is advancing progress toward the Biden-Harris Administration's federal sustainability goals by releasing updated standards for federal buildings. P100 Facilities Standards for the Public Buildings Service establish mandatory design and construction standards and performance criteria for 300,000 federal buildings nationwide. The updated standards will help advance the adoption of cleaner, more efficient technologies for buildings; lead the way towards realizing the goals of the Federal Sustainability Plan to achieve net-zero emissions from all federal buildings by 2045; and promote the use of American-made, low carbon construction materials.
P100 requires that facilities adopt advanced energy conservation strategies and eliminate on-site fossil fuel use, directives that align with federal sustainability goals and will accelerate the transition to a clean energy economy. The industry-leading standard calls for grid-interactive efficient buildings, leverages innovative technologies through GSA's Green Proving Ground, requires the use of low-embodied carbon materials, and directs potable water reuse. These comprehensive measures ensure that new and renovated federal facilities achieve peak performance while minimizing environmental impact.
The 2024 P100 establishes exceptional benchmarks for:
- Electrification: New standards for building equipment and systems to be powered by clean energy sources.
- Embodied Carbon: Requirement to utilize low-embodied carbon materials, including salvaged, reused, regenerative, and biomimetic options.
- Energy Efficiency: Enhanced building envelope performance to minimize energy loss and improve overall efficiency.
- Grid-Interactive Efficient Buildings: New measures to support a more resilient, responsive grid.
- Water Reuse: Mandating that buildings have a 15% potable water reuse rate.
- Construction Decarbonization: Ground breaking new low-carbon methods for constructing federal buildings including clean energy operations, material salvage, and offsite assemblage.
- Labor Practices: New standards protecting workers from unfair or unsafe labor practices, ensuring supply chains are free from child and forced labor and that workers are protected from the impacts of extreme heat.
P100 is updated and published every three years. For more detailed information on the 2024 P100 and other GSA initiatives, visit www.gsa.gov/p100.
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Anti-Assignment Provision Unenforceable in Kentucky
December 20, 2012 —
TRED EYERLY, INSURANCE LAW HAWAIIOn a certified question from the Federal District Court, the Supreme Court of Kentucky decided that an anti-assignment provision in a policy is unenforceable.
Wehr Constructors v. Paducah Div. Assur. Co. of Am., 2012 Ky. LEXIS 183 (Ky. Oct. 25, 2012).
Before building an addition to its hospital, Murray Calloway County Hospital purchased a builder's risk policy from Assurance Company of America.The policy provided, "Your rights and duties under this policy may not be transferred without Assurance's written consent . . . ." The Hospital contracted with Wehr Constructors to install concrete subsurfaces and vinyl floors in order to expand the hospital. After installation, a portion of the floors and subsurface work was damaged. The Hospital submitted a claim to Assurance for $75,000, but the claim was denied.
Wehr sued the Hospital to recover money for its work on the construction project. In settling the case, the Hospital assigned to Wehr any claim or rights the Hospital had against Assurance.
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Tred R. Eyerly, Insurance Law Hawaii.Mr. Eyerly can be contacted at
te@hawaiilawyer.com
Environmental Justice: A Legislative and Regulatory Update
November 01, 2021 —
Anthony B. Cavender - Gravel2GavelEnvironmental Justice, as an urgent policy priority of the Federal Government, dates back to 1994, and President Clinton’s issuance of Executive Order 12898. This order directed federal agencies to identify and address, as appropriate, “the disproportionately high and adverse human health and environment effects of its many programs, policies, and procedures on minority populations and low-income populations.” Executive Order 12898 supplements Executive Order 12550 (1980), whose primary legal basis was Title VI of the Civil Rights Act of 1964, in particular, Sections 601 and 602, which prohibit discrimination in programs and activities receiving federal financial aid and assistance.
Over the years, the Supreme Court has reviewed the scope and importance of Title VI. For example, in Alexander v. Sandoval, decided in 2001, the Court concluded that while private parties could sue to enforce Section 601 or its implementing regulations, Section 601 only prohibits intentional discrimination; which is very difficult to prove. In addition, the Court ruled in Sandoval, that private parties cannot sue to enforce regulations implementing Section 602. Perhaps as an acknowledgement of these shortcomings, the Environmental Protection Agency (EPA) has for many years operated an administrative system to process environmental justice complaints (see 40 CFR Part 7). The process is complex and the results—usually whether a state agency has failed to uphold Title VI—have generally been unsatisfactory. To be successful, many proponents of environmental justice believe that a statutory foundation must be established, and significant efforts have been made to do so.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Changes and Extra Work – Is There a Limit?
October 09, 2018 —
Joseph R. Young - Smith CurrieDesign and construction changes can be a challenge for everyone involved in a construction project. Designers and contractors endeavor to deliver a project that meets the owner’s needs, budget, and aesthetic considerations. As a project comes to fruition, the project frequently changes, and the parties must address and resolve the financial considerations of those changes and implement the changes at the project level. Often times the most critical aspect of a contractor’s financial success or failure of a construction project is its ability to manage changes. Contractors are sometimes faced with changes that are beyond the reasonable expectation of the original undertaking and have significant planning, scheduling, and cost implications that may not be considered or addressed in the contract’s changes clause. Changes of this magnitude may be considered “cardinal changes” and provide the contractor with recourse beyond restrictions imposed by the contract’s changes clause. But cardinal change is a risky basis for a contractor to refuse to perform additional or changed work. Even major changes can probably be more safely handled within the terms of the contract’s changes clause.
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Joseph R. Young, Smith CurrieMr. Young may be contacted at
jryoung@smithcurrie.com
Read Her Lips: “No New Buildings”
November 18, 2011 —
CDJ STAFFMartha Johnson, the head of the General Services Administration, has said that her agency will not be building any new buildings in the near future. Among other duties, the GSA is responsible for the building, renovating, and leasing of federal office space. The White House had proposed $840 million in new construction, the Senate only $56 million. The House did not appropriate any money for the agency to use for new construction.
In addition to cutbacks on new buildings, Congress is suggesting only $280 million in repairs of existing government buildings. In order to cut back, the GSA has dropped plans to renovate their own offices in favor of renovations at the Department of Homeland Security and the Food and Drug Administration.
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Newmeyer & Dillion Appoints Partner Carol Zaist as General Counsel
June 22, 2016 —
Newmeyer & Dillion LLPNEWPORT BEACH, Calif. – June 21st, 2016 – Prominent business and real estate law firm
Newmeyer & Dillion LLP is pleased to announce that partner
Carol Zaist has been named the firm’s General Counsel. Zaist will report to the Managing Partner, Executive Committee and other senior level management as it relates to the firm’s governance and policy matters. Zaist’s appointment is effectively immediately.
“We are excited to have appointed Carol as the firm’s General Counsel,” said Jeff Dennis, Newmeyer & Dillion’s Managing Partner. “As we continue to expand across markets, this is another proactive measure to ensure our strategic growth and success.”
Zaist is a partner in the Newport Beach office of Newmeyer & Dillion, concentrating her practice on business litigation, real estate litigation, and probate litigation. She has significant experience advising clients in contract disputes, business and property torts, and trademark and trade secret disputes in both federal and state jurisdictions. Zaist also serves as strategic counsel, advising clients on the impact of multiple litigation matters in different jurisdictions, and integrating strategy and tasks efficiently and cohesively. She will lend this variety of experience to her new role as General Counsel for the firm.
“I am honored and thrilled to work with our managing partner and Executive Committee to assist the firm in its strategic growth and development,” said Zaist.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. 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 have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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