OSHA/VOSH Roundup
August 31, 2020 —
Christopher G. Hill - Construction Law MusingsIn an unusual flurry of occupational safety related activity, the Virginia courts decided two cases in the last week relating to either the review of occupational safety regulations themselves or their enforcement.
In Nat’l College of Business & Technology Inc. v. Davenport (.pdf), the Virginia Court of Appeals considered what constitutes a “serious” violation of the exposure to asbestos Virginia Occupational Safety & Health (VOSH) regulations. The facts found by the Salem, Virginia Circuit Court were that employees of the petitioner college were exposed to asbestos insulation when they were required to enter a boiler room to retrieve paper files. However, no evidence was presented regarding the length of time or level of exposure at the Circuit Court level. Despite the lack of evidence regarding the level or extent of exposure, the Circuit Court upheld the VOSH citation for exposure and the level of violation at a “serious” level with the attendant penalty.
The Virginia Court of Appeals disagreed with the second finding. The appellate court determined that the lack of evidence regarding the level of exposure (whether length or extent) made the serious level violation an error. The Court stated that merely presenting evidence that asbestos is a carcinogen is not enough given the number of carcinogenic materials in existence and then remanded the case back to Circuit Court to reconsider the penalty level.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Minneapolis Condo Shortage Blamed on Construction Defect Law
November 20, 2013 —
CDJ STAFFDemand for condos in the Minneapolis, Minnesota area is outstripping demand. Currently inventory of available condos represents less than four months’ worth of sales. But despite the demand, only three condominium buildings are under construction in the Minneapolis metropolitan area.
Some blame this on difficulty in finding financing, where some lenders are looking for projects to be sold before the builders get the money to build what they’ve just sold. Another problem is Minnesota construction defect law. “There are law firms in this town that have filed lawsuit after lawsuit on behalf of homeowners associations alleging construction defects,” said one builder, Kelly Doran, who now builds luxury apartment buildings. “”With that 10-year warranty, there’s no way I would build condos.”
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Hollywood Legend Betty Grable’s Former Home for Sale
June 30, 2014 —
Catherine Sherman – BloombergWhen it comes to Old Hollywood stars, Betty Grable was “the girl with the million-dollar legs.” She also lived in a million-dollar home just four blocks from the Hotel Bel-Air.
Located at 1280 Stone Canyon Rd, the house is currently on the market for $13.295 million.
“It’s a classic, Hollywood estate,” said listing agent Bjorn Farrugia of Hilton & Hyland. “It’s very picturesque — set back on one of the best streets in Bel-Air.”
Grable moved in after the home was built in 1937, the same year she married actor Jackie Coogan (aka “Uncle Fester” in the 1960s sitcom The Addams Family). Soon after, in 1939, the couple appeared in “Million Dollar Legs,” a movie giving rise to the actress’ nickname.
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Catherine Sherman – Bloomberg
Making the Construction Dispute Resolution Process More Efficient and Less Expensive, Part 2
July 16, 2014 —
Beverley BevenFlorez-CDJ STAFFJohn P. Ahler, on the Ahlers & Cressman PLLC blog, has posted the second part of his two-part series on Ways to Make the Construction Dispute Resolution Process More Efficient and Less Expensive. In this post, Ahler discussed “tips on how lawyers and stakeholders can make things move quicker in arbitration.” For example, Ahler looked at the arbitration clause in the initial contract, various options for arbitration, evidence decisions, and others.
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Construction Laborers Sue Contractors Over Wage Theft
September 17, 2014 —
Beverley BevenFlorez-CDJ STAFFAspen Journalism reported that “[f]our laborers who worked on the Burlingame Phase II affordable housing project financed by the city of Aspen are suing three of the project’s contractors, alleging they weren’t paid for some of their work and were never paid overtime when they worked more than 40 hours per week.”
Towards Justice, nonprofit legal services group, filed suit in August on behalf of Fernando Villalobos, Sergio Roman, Ramon Gonzalez and Hugo Esqueda, and against construction companies Haselden Construction, LLC of Centennial, Continental Constructors, LLC of Littleton, and JMS Building of Glenwood Springs.
Both sides have agreed that “the men were paid for some, but not all, of their work,” but dispute “the value of the work done by the laborers.”
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ACEC Statement on Negotiated Bipartisan Debt Limit Compromise
June 05, 2023 —
The American Council of Engineering CompaniesWashington, D.C. – The American Council of Engineering Companies (ACEC) released the following statement applauding the negotiated bipartisan compromise to raise the debt limit ahead of the scheduled House vote tonight:
"The American Council of Engineering Companies (ACEC) applauds President Biden and Speaker McCarthy for negotiating a bipartisan compromise to raise the debt limit and avoid a catastrophic default. We are particularly pleased that the bipartisan deal protects the critical funds provided under the Infrastructure Investment and Jobs Act (IIJA) and does not include any changes to the Inflation Reduction Act's (IRA) climate and clean energy provisions, which the engineering industry is working hard to deliver successfully. ACEC also strongly supports the provisions in the deal to reform the federal permitting process. These commonsense measures to modernize the National Environmental Policy Act (NEPA), particularly through the use of digital technologies, will improve interagency collaboration and allow engineering firms to help their clients deliver project benefits more efficiently while ensuring strong environmental protections and opportunities for community and stakeholder engagement."
The American Council of Engineering Companies (ACEC) is the business association of the nation's engineering industry. Founded in 1909, ACEC is a national federation of 51 state and regional organizations representing more than 5,500 engineering firms and 600,000+ engineers, surveyors, architects, and other specialists nationwide. ACEC member firms drive the design of America's infrastructure and the built environment.
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Wow! A Mechanic’s Lien Bill That Helps Subcontractors and Suppliers
March 05, 2015 —
Christopher G. Hill – Construction Law MusingsYou know how I’ve stated on many occasions that the contract is king here in Virginia? You know how that included contractual provisions waiving mechanic’s lien rights for subcontractors and suppliers? You know how I thought that the General Assembly would not do anything to make mechanic’s liens in Virginia easier to prosecute?
Well, it seems, at least for waivers of mechanic’s lien rights by subcontractors and suppliers (more about general contractors later) I was wrong. This General Assembly session, the Senate introduced a bill, that has now passed both houses as of February 25, 2015, that adds language to Virginia Code Section 43-3 that effectively nullifies any contractual waiver of lien rights prior to any work having been performed by any tier of construction company aside from general contractors.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Texas Court of Appeals Conditionally Grant Petition for Writ of Mandamus to Anderson
April 25, 2011 —
Beverley BevenFlorez CDJ STAFFThe Texas Court of Appeals conditionally grant mandamus relief to Anderson Construction Company and Ronnie Anderson (collectively “Anderson”)… from the trial court in a construction defect lawsuit filed by Brent L. Mainwaring and Tatayana Mainwaring. See Tex. Prop. Code Ann. 27.001-.007 (West 2000 & Supp. 2010). Relators contend the trial court abused its discretion by compelling discovery while the case was abated by operation of law.
The Court of Appeals opinion describes what led up to the proceedings: “The Mainwarings’ original petition identified certain defects in their Anderson-constructed home. Those defects concerned the roof trusses and framing, air conditioning, mortar and masonry, exterior doors and windows, and weep holes. With respect to the five areas of defects identified in their original petition, the Mainwarings gave Anderson the statutorily required notice on January 13, 2010. After implementing agreed extensions, Anderson made an offer of settlement for the defects the Mainwarings identified in their notice. Almost eight months later, the Mainwarings filed an amended petition adding defects they had not included in their original petition and notice. The additional defects the Mainwarings included in their amended petition had not been addressed by Anderson’s offer of settlement.”
Following these events, Anderson claimed the Mainwarings did not respond in writing to their settlement offer. “Anderson filed a verified plea in abatement on December 2, 2010. In the trial court, Anderson claimed that the Mainwarings failed to respond in writing to Anderson’s settlement offer, as required by Section 27.004(b) of the RCLA. See Tex. Prop. Code Ann. 27.004(b)(1). The Mainwarings moved to compel discovery responses from Anderson. The Mainwarings alleged that they rejected Anderson’s settlement offer, and that if their response was insufficient, they contend that Anderson’s offer was rejected by operation of law on the twenty-fifth day after the Mainwarings received it. See Tex. Prop. Code Ann. 27.004(i). The Mainwarings’ motion to compel was not supported by affidavit. See Tex. Prop. Code Ann. 27.004(d)(2). On January 13, 2011, Anderson filed a verified supplemental plea in abatement. Anderson alleged that the Mainwarings failed to provide written notice concerning the newly alleged defects and complained the Mainwarings were attempting to circumvent the inspection and resolution procedure of the RCLA. Over Anderson’s objection that the lawsuit had been abated, the trial court granted the Mainwarings’ motion to compel discovery.”
After listening to both sides, the Court of Appeals offered this reasoning for their opinion: “The parties do not dispute that Anderson inspected the property before the Mainwarings alleged the existence of additional defects in their amended pleading, nor do the Mainwarings claim that Anderson has been given an opportunity to inspect the additional defects the Mainwarings identified in their amended pleadings. We conclude the trial court did not have the discretion to deny or lift the abatement until the Mainwarings established their compliance with the statute. In other words, the Mainwarings are required to provide Anderson a reasonable opportunity to inspect the additional defects identified by their amended pleading, which will allow Anderson the opportunity to cure or settle with respect to the newly identified defects.”
The Court of Appeals spoke directly on the issue of mandamus relief: “The Mainwarings contend that mandamus relief is not available because the trial court’s ruling does not prevent Anderson from making settlement offers during the discovery process. ‘An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments.’ In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). The failure to abate a case is typically not subject to mandamus. See In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193, 196 (Tex. 2002) (citing Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985)). In this case, however, the case was abated by operation of law. By ignoring the statutory abatement, the trial court interfered with the statutory procedure for developing and resolving construction defect claims. See In re Kimball Hill Homes Tex., Inc., 969 S.W.2d 522, 525 (Tex. App. Houston [14th Dist.] 1998, orig. proceeding) (An appeal provides an inadequate remedy for the trial court’s failure to observe automatic abatement pursuant to the RCLA.). The benefits of mandamus review are not outweighed by the detriments of mandamus review in this case.“
In conclusion, “The trial court had no discretion to compel discovery while the case was abated, and Anderson, who has been compelled to respond to discovery during a period the case was under an automatic abatement, has no adequate remedy on appeal. Accordingly, we conditionally grant the petition for writ of mandamus. The writ will issue only if the trial court fails to vacate its order of February 3, 2011, and fails to refrain from proceeding with the case until a motion to reinstate is filed that establishes compliance with the notice and inspection requirements of the Residential Construction Liability Act.”
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