Contractor’s Unwritten Contractual Claim Denied by Sovereign Immunity; Mandamus Does Not Help
September 22, 2016 —
David R. Cook Jr. – AHHC Construction Law BlogIn a very well-reasoned opinion, the Supreme Court of Georgia upheld the denial of a contractor’s unwritten-contract claim against a county based on sovereign immunity. Based on an alleged oral contract, Contractor built a sewer pumping station for the County in exchange for an interest in the station’s pumping capacity. When the County denied Contractor’s demand for an interest, he filed suit.
As noted in many prior posts, the Georgia constitution reaffirms sovereign immunity of the state – which the courts interpret to include counties. One common exception in the public works area is the Constitution’s “ex contractu clause,” which waives sovereign immunity for claims based on written contracts. Of course, a precondition to the waiver of sovereign immunity is the existence of a written contract – which Contractor did not have.
Applying these rules, the court affirmed the denial of Contractor’s claims based on contract and quasi contract. In the absence of a written contract, there can be no contractual claim against the County. The same rule applies for quasi-contractual claims.
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David R. Cook, Autry, Hanrahan, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
Rebuilding the West: Construction Considerations After the Smoke Clears
December 21, 2020 —
Richard Glucksman & Ravi Mehta – Chapman Glucksman Dean & RoebWildfires have always been a part of life in the western United States, but, in recent years, the frequency and size of wildfires have become staggering. Oregon, Washington, and—in particular—California face drier conditions, making wildfire season longer and more intense.
In these states, among others, prescribed burns (designed to reduce wildfire ignition sources and spreading potential) have been limited or cancelled altogether as the air pollution emitted by these burns may worsen the impact of COVID-19, a respiratory illness in its essence, as noted recently by
Science magazine. These circumstances, further compounded by the severe shortage of housing, have created a “perfect storm” in California, which has seen new and denser construction deeper within wildfire-prone areas, prompting a number of key legislative proposals that will impact the rebuilding process after the smoke clears.
The infamous 2018 Camp Fire in northern California made international headlines for decimating the town of Paradise. While the cause of the Camp Fire was determined to be faulty electrical transmission equipment, unusually dry conditions allowed the fire to spread to just over 150,000 acres, and the fire took 17 days to contain.
Then, five of the 20 largest wildfires in California history occurred during the 2020 wildfire season, according to the California Department of Forestry and Fire Protection (Cal Fire). The Camp Fire was eclipsed by the August 2020 Complex Fire, which is the largest wildfire ever recorded in the state, growing to just over one million acres in size until it was finally contained on Nov. 15.
Legislative Response
The Camp Fire and other 2018 wildfires displaced hundreds of thousands of people from their homes throughout California. The unprecedented scale of both the 2018 and the 2020 wildfire seasons in California has spurred legislators in Sacramento to draft a number of important bills that will undoubtedly impact rebuilding efforts.
California AB 38 was prompted by the 2018 California wildfire season and was signed into law by Gov. Gavin Newsom in October 2019. It requires the state fire marshal, the Office of Emergency Services, and Cal Fire to work together to develop and administer a comprehensive wildfire mitigation program, including "cost-effective structure hardening and retrofitting to create fire-resistant homes, businesses, and public buildings."
Unfortunately, the well-intentioned program has yet to be funded, and may be relying on federal hazard funds from the Federal Emergency Management Agency at a future date. In light of the crippling economic impact of the COVID-19 pandemic, federal funding is likely the only viable source for this important item of legislation.
California SB 182 would enact new building regulations in high fire-risk areas (as determined by the state fire marshal), including new standards for fire-resistive construction, evacuation routes, defensible space, and available water and firefighting resources. It would also prohibit municipalities from approving new construction in high fire-risk areas unless wildfire reduction standards are satisfied. In effect, the bill would discourage new construction in high fire-risk areas.
After passing through both legislative houses, Newsom vetoed the bill, citing its negative impact on the state's strained supply of affordable housing. However, the bill is likely to be revisited in the 2020-2021 legislative session.
California AB 1516 is a comprehensive bill that would:
- Create new defensible-space requirements for both new and existing construction in high fire-risk areas.
- Create a grant-assistance program for fire-prevention education, inspections, and technical assistance.
- Direct Cal Fire to develop vegetation management recommendations to minimize flammability.
Additionally, the bill would allow insurers providing course of construction coverage for a project to request, from the owner, municipal certification that the structure to be built complies with existing and new building standards. Newsom vetoed this bill, cautioning that a "one size fits all" approach to wildfire management may not be appropriate, given that each individual community's needs differ.
California AB 2380 focuses on the development of standards and regulations for a relatively new and growing phenomenon: the rising use of private firefighting personnel, particularly by wealthy homeowners. Several prominent and well-known carriers offer homeowners-insurance policies that provide for private firefighting personnel, as well as preventative services (wildfire hazard inspections and clearing defensible space), and expected post-incident services (clean up and removal of fire retardant and similar substances).
AB 2380 was signed into law by Newsom at the tail end of the 2018 wildfire season, and it now requires Cal Fire, the governor's Office of Emergency Services, and the board of directors of the FIRESCOPE Program (designed to coordinate firefighting resources among different agencies) to develop standards and regulations for privately contracted fire fighters.
Housing Shortage and New Construction
These legislative efforts are underscored by the worsening housing crisis, which has both strained existing supply and increasingly pushed new construction into areas known as the Wildland Urban Interface (WUI).
WUI areas are designated as either "interface" or "intermix:” Interface WUI areas have little to no wildland vegetation, but are near large wildlands. By contrast, in intermix WUI areas, structures are mixed with wildland vegetation.
A recent study by the U.S. Forest Service found that, as expected, WUI areas are the hardest hit by wildfires. However, the study also found that, contrary to popular belief, wildfires cause greater damage in interface WUI areas than intermix WUI areas- in other words, wildfire damage is greatest where there is little to no wildland vegetation. The study concludes that wildfires in WUI areas are fueled more by human-made fuels as opposed to natural vegetation. These human-made fuels include building materials and landscaping.
It may not come as a surprise that a growing body of scientific literature has ascribed more severe and frequent wildfires to climate change. However, what may be less appreciated is the profound impact of building in the WUI. By 2050, an estimated one million new homes are projected to be built in California WUI areas.
In light of this, as well as the recognition that wildfire risk is determined, in large part, by construction standards and the fire resistivity of materials as opposed to natural vegetation, California has developed a special building code for WUI areas: Chapter 7A of the California Building Code- Materials and Construction Methods for Exterior Wildfire Exposure. California is one of the few states to have a unique building code for WUI areas, and, in light of the recent wildfires, California officials are developing stricter WUI building standards.
The constituents of State Sen. Bill Dodd in Napa County and surrounding areas have faced some of the state's most devastating wildfires. Dodd is at the forefront of significant fire-related legislation, and was responsible for the passage of the Insurance Adjuster Act of 2019, which sets regulations for insurance-claim adjusting in emergencies.
Dodd also spearheaded the passage of SB 190, which was enacted in late 2019. The law requires, among other things, the state fire marshal to develop suitable materials and products for building in WUI areas with respect to exterior wall siding and sheathing, exterior windows, doors and skylights, vents, decking, treated lumber and ignition-resistant materials, and roofing materials. The state fire marshal's office found that roofing material is among the most important factors in a structure's fire resistivity, and slate, metal, and tile roofs have the highest fire resistance rating of "A:”
As of July 1, 2021, wood-shake roofs will no longer be allowed by the California Fire Code. The state fire marshal also cites non-combustible siding as an important building element.
Wildfire-Resistant Construction
A recent study prepared by Headwaters Economics and commissioned by the U.S. Forest Service, WR Foundation, and Insurance Institute for Business & Home Safety analyzed cost differentials between traditional construction and wildfire-resistive construction as they relate to the four most fire-critical assemblies of a structure: roofs, exterior walls (including windows and doors), decks, and landscaping. Wildfire-resistant roofing, vents, fascia, and gutters were estimated to cost about 27 percent more than traditional components. However, the wildfire-resistant roofing materials feature lower maintenance requirements and longer lifespans.
Wildfire-resistant exterior walls were estimated to cost 25 percent less than traditional components, due in large part to the substitution of true wood siding with fiber cement siding.
Wildfire-resistant decking involves the use of composite boards, foil-faced bitumen tape on support joists, and the creation of non-combustible space beneath decking. This type of construction was estimated to cost approximately 19 percent more than traditional decking construction. Wildfire-resistant landscaping has the most significant cost difference as compared to traditional landscaping construction, with the former costing about double the latter. Landscaping fabric can minimize the growth of weeds and thus reduce fire hazard, as does the use of rocks instead of mulch.
While certain components of fire-resistant construction may have increased costs, the benefits far outweigh these increases: longer life cycles and less maintenance of the components, and, most importantly, greatly increased fire resistivity of the structure itself and thus its life cycle.
As construction in WUI areas is expected to grow substantially in the coming years, so too are fire-resistive construction standards and material requirements. These standards and requirements are part and parcel of a more comprehensive and deliberate set of land use planning, vegetation management, and emergency-response regulations and policies that California will develop by necessity to meet the growing demand for housing in WUI areas, and also to rein in the staggering costs of wildfire suppression. Thus, construction in WUI areas, and, to a lesser degree, in non WUI areas, will be subject to more exacting standards in the years to come.
As the science of wildfire prevention and suppression advances, so too will the technological innovations that will allow for safer, longer-lasting and ecologically sensitive construction. As in many other fields, California is expected to emerge as a leader in wildfire resistant building and material requirements, and will undoubtedly play a key role in shaping fire policy throughout the United States.
Richard Glucksman is a partner, and Ravi Mehta is senior counsel, at Chapman Glucksman Dean & Roeb. rglucksman@cgdrlaw.com; rmehta@cgdrlaw.com
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General Contractors Have Expansive Common Law and Statutory Duties To Provide a Safe Workplace
February 18, 2020 —
Paul R. Cressman Jr. - Ahlers Cressman & Sleight PLLCOn November 21, 2019, the Washington Supreme Court handed down its decision in Vargas v. Inland Washington, LLC.[1]
At the time of the incident in May 2013, Mr. Vargas, the plaintiff, was helping pour the concrete walls for what would become a parking garage for an apartment building. He was employed by Hilltop Concrete Construction. Inland Washington was the general contractor, and subcontracted with Hilltop to pour concrete. Hilltop, in turn, entered into agreements with Ralph’s Concrete Pumping and Miles Sand & Gravel to provide a pump truck, certified pump operator, and supply concrete.
A rubber hose carrying concrete whipped Mr. Vargas in the head. It knocked him unconscious and caused a traumatic brain injury.
Vargas, through his guardian ad litem, along with his wife and children, sued Inland Washington, Ralph’s, and Miles.
The trial court initially dismissed on summary judgment Vargas’ claims that Inland Washington was vicariously liable for the acts of Hilltop, Ralph’s, and Miles. Later, the trial court also granted Inland Washington’s motion for summary judgment that it was not directly liable as a matter of law.
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Paul R. Cressman Jr., Ahlers Cressman & Sleight PLLCMr. Cressman may be contacted at
paul.cressman@acslawyers.com
Reminder: Pay if Paid Not All Encompassing (but Could it be?)
December 09, 2019 —
Christopher G. Hill - Construction Law MusingsOn numerous occasions, I have discussed the need to be careful with so called “pay if paid” clauses in construction contracts. While such clauses are enforceable in Virginia (when phrased correctly), there are exceptions and limitations (for instance in the Miller Act context).
One such exception (that I frankly would have thought to be obvious) is that such clauses do not protect a general contractor from paying all subcontractors. Such a clause only protects a general contractor from payment to those subs for whose work the general contractor has not been paid. In other words, if a general contractor has been paid by an owner for a particular subcontractors work, it cannot use the pay if paid clause to deny payment even in the event that other subcontractors were deficient in their work or the owner has failed to pay the general contractor in full.
In Precision Contractors Inc. v. Masterbuilt Companies Inc. (PDF) the Fairfax, VA Circuit Court reiterated this principal stating that nothing in the contract suggests that either party to the lawsuit had any intention to shift the risk of non-payment by the owner or non-performance of other subcontractors to the plaintiff (Precision).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Connecticut Appellate Court Breaks New Ground on Policy Exhaustion
April 26, 2021 —
Eric B. Hermanson & Austin D. Moody - White and WilliamsThe Connecticut Appellate Court recently issued a wide-ranging opinion, Continental Casualty Co. v. Rohr, Inc.,[1] which significantly extended the current restrictive view on when a general liability policy can be considered exhausted so as to trigger overlying excess coverage. The case marks a further step away from Judge Augustus Hand’s almost-century-old ruling in Zeig v. Massachusetts Bonding & Ins. Co.,[2] which held that an underlying policy could be “exhausted” by a below-limits settlement as long as the insured was willing to “fill the gap” between the settlement amount and the limits of the policy.[3]
In recent years, courts in California and elsewhere have increasingly walked back Zeig’s broad ruling – holding in Qualcomm v. Certain Underwriters,[4] for example, that an insured’s below-limits settlement with primary carriers does not exhaust the limits of primary coverage, or allow the insured to access overlying excess coverage.[5]
Reprinted courtesy of
Eric B. Hermanson, White and Williams and
Austin D. Moody, White and Williams
Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com
Mr. Moody may be contacted at moodya@whiteandwilliams.com
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Hake Law Attorneys Join National Law Firm Wilson Elser
April 02, 2014 —
Beverley BevenFlorez-CDJ STAFFIn a press release published on PRWEB, the national law firm Wilson Elser announced “that Bill Hake, founder of Bay Area–based Hake Law, and 15 members of his team, including attorneys, paralegals and staff, have joined the firm’s San Francisco office effective April 1.”
Specifically, “Wilson Elser has added a total of four partners from Hake Law, including Bill Hake, Melissa Ippolito, Nicolas Martin and Lucy Hoff, and four associates, including Gardiner McKleroy, Jeremy Berla, Molly Friend and Whitney Barnecut, bringing the total attorney headcount in Wilson Elser’s San Francisco office to 40.”
According to the release, “Hake Law was primarily a defense litigation firm focused on product liability, construction defects, D&O, catastrophic injury, toxic tort, white collar criminal, class action and complex litigation defense.” Wilson Elser is a “full-service and leading defense litigation law firm… with nearly 800 attorneys in 25 offices in the United States, one in London and through a network of affiliates in key regions globally.”
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Contractor Pleads Guilty to Disadvantaged-Business Fraud
November 17, 2016 —
Tom Ichniowski – Engineering News-RecordIn the latest development in a federal small disadvantaged-business case, a construction company executive has pleaded guilty to a charge of conspiring to commit wire fraud.
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Tom Ichniowski, Engineering News-RecordMr. Ichniowski may be contacted at
ichniowskit@enr.com
Pennsylvania Considers Changes to Construction Code Review
November 06, 2013 —
CDJ STAFFPennsylvania may soon change how it adopts changes to its implementation of the Uniform Construction Code, but it’s not clear which method will be adopted, as the Pennsylvania House and Senate have competing bills. In the Senate bill (SB1023), the only change would be that any changes to the Uniform Building Code made by the International Code Council would automatically become part of the Pennsylvania building code, unless rejected by a two-thirds vote of the Pennsylvania UCC Review and Advisory Council. Under current Pennsylvania law, changes are adopted only with a two-thirds approval of the RAC.
The House bill (HB1209), separates the commercial code from the residential code. Under the House proposal, the RAC would reject changes to the commercial building code on a two-thirds vote, otherwise they would be adopted, but in the residential building code, changes would be rejected unless the RAC approved them by a two-thirds vote.
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