Mediation in the Zero Sum World of Construction
October 02, 2015 —
Christopher G. Hill – Construction Law MusingsConstruction is a zero sum game. What do I mean by that? I mean that even where you, a construction professional with a great construction lawyer, have reviewed and edited a subcontract presented to you or provided a well drafted contract to the other party that contains an attorney fees provision, every dollar that you spend on litigation is a dollar less of profit.
Couple the fact that no construction company can or should bid or negotiate work with an eye toward litigation (aside from having a well written contract that will be enforced to the letter here in Virginia). Particularly on “low bid” type projects, contractors and subcontractors cannot “pad” their bids to take into account the possibility of attorney fees, arbitration, or litigation. Furthermore, the loss of productivity when your “back office” personnel are tied up dealing with discovery, phone calls, and other incidents of litigation that do nothing but rehash a bad project and increase the expense saps money from the bottom line. While the possibility of a judgment including attorney fees may soften this blow, you are still out the cash.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Key California Employment Law Cases: October 2018
December 11, 2018 —
Alejandro G. Ruiz & Eric C. Sohlgren - Payne & FearsThis month’s key employment law cases address the test for independent contractor status, the legality of an incentive compensation system, and personal liability for wage and hour violations.
Garcia v. Border Transp. Group, LLC, Cal. Ct. App. Oct. 22, 2018
Summary: Defendants must satisfy Dynamex ABC test to establish independent contractor status as defense to wage order claims, but Borello multifactor test applies to non-wage-order claims.
Facts: Plaintiff leased a taxicab license and taxicab from defendants. Plaintiff brought several employment claims against defendants, including claims for whistleblower wrongful termination, unpaid wages, minimum wages, meal and rest break penalties, wage statement penalties, civil penalties under the California Labor Code Private Attorney Generals Act (“PAGA”), waiting time penalties, and unfair competition. Defendants filed a motion for summary judgment on all claims on the ground that plaintiff was an independent contractor and not an employee. Relying on the factors described in Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341, 256 Cal. Rptr. 543 (1989), defendant presented evidence that plaintiff set his own hours, used the cab for personal business, kept collected fares, used a radio dispatch service, entered into sublease agreements, held other jobs, and advertised services in his own name.The trial court granted summary judgment in favor of defendants. While plaintiff’s appeal was pending, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903, 232 Cal. Rptr. 3d 1 (2018), establishing a new test for independent contractor status under the definition of employment found in the California Industrial Welfare Commission Wage Orders.
Reprinted courtesy of
Alejandro G. Ruiz, Payne & Fears and
Eric C. Sohlgren, Payne & Fears
Mr. Ruiz may be contacted at agr@paynefears.com
Mr. Sohlgren may be contacted at ecs@paynefears.com
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What to Look for in Subcontractor Warranty Endorsements
February 03, 2020 —
David M. McLain – Colorado Construction LitigationWith increasing frequency in the construction defect cases we defend, we are seeing commercial general liability insurance policies with “subcontractor warranty” endorsements. Also known as contractor or subcontractor special conditions, these endorsements could have severe and negative consequences for builders that do not comply with their requirements. In researching for this article, I reviewed six different endorsements used by six different carriers, all of which contained some or all of the following requirements:
- The builder must have signed subcontract agreements with its subcontractors that require subcontractors to hold harmless, i.e., defend and indemnify, the builder for “bodily injury” or “property damage” claims caused by their negligence.
- The subcontractors must maintain their own insurance with limits equal to or greater than the limits in the builder’s own policy, with limits of at least $1 million per occurrence.
- The subcontractors’ insurance must not exclude the work being performed for the builder, e.g., the excavator’s policy cannot exclude earth movement claims, the subcontractor’s policy cannot exclude residential construction.
- The subcontractors must maintain their own workers’ compensation and/or employer’s liability insurance.
- The subcontractors must provide the builder with an endorsement or a certificate of insurance indicating that the builder has been added to the subcontractors’ insurance as an additional insured.
- The subcontractors must provide the builder with an endorsement or a certificate of insurance indicating that their insurance carriers have agreed to provide waivers of subrogation in favor of the builder.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Statute of Frauds Applies to Sale of Real Property
April 19, 2022 —
David Adelstein - Florida Construction Legal UpdatesIn law school, one of the first legal doctrines we learn is known as the “statute of frauds.” The statute of frauds is essentially a defense to a contract enforcement action claiming the contract is unenforceable due to the statute of frauds. In other words, this doctrine is raised when one party seeks to enforce a contract. The other party argues, “not so fast,” because the contract is NOT enforceable in light of the statute of frauds.
Common scenarios where the statute of frauds comes into play are with transactions involving real property or agreements where services are not to be performed within one year.
The statue of frauds doctrine is contained in Florida Statute s. 725.01:
No action shall be brought whereby to charge any executor or administrator upon any special promise to answer or pay any debt or damages out of her or his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning them, or for any lease thereof for a period longer than 1 year, or upon any agreement that is not to be performed within the space of 1 year from the making thereof, or whereby to charge any health care provider upon any guarantee, warranty, or assurance as to the results of any medical, surgical, or diagnostic procedure performed by any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, or dentist licensed under chapter 466, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Real Estate & Construction News Roundup (6/26/24) – Construction Growth in Office and Data Center Sectors, Slight Ease in Consumer Price Index and Increased Premiums for Commercial Buildings
July 22, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, U.S. interest rates remain uncertain, construction firms continue to use artificial intelligence, New York City updates commercial zoning regulations, and more!
- According to analysts, high vacancy rates and declining rents have hurt San Francisco’s office market so badly that it could take almost 20 years to recover. (Eric McConnell, Yahoo)
- The New York City Council approved updated commercial zoning regulations that expand where businesses can be located in the city, more than double the space for small-scale clean manufacturing, and enable adaptive reuse projects involving existing buildings. (Joe Burns, Construction Dive)
- The insurance industry is responding to the proliferation of extreme weather events and the risks associated with operating commercial buildings in vulnerable areas by increasing premiums. (Renea Burns, Tim Coy, Niall Williams, Deloitte)
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Pillsbury's Construction & Real Estate Law Team
Chutes and Ladders...and Contracts.
November 25, 2024 —
Daniel Lund III - LexologyA contractor which designed and constructed a hydroelectric plant in Guatemala sued under the Federal Arbitration Act in federal court in Florida to overturn a project-related arbitration decision, “on the basis that the Tribunal had exceeded its powers.” That petition was denied based upon Eleventh Circuit precedent which foreclosed that challenge under the FAA for an arbitration conducted “under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards,” a.k.a., the “New York Convention.”
The U. S. 11th Circuit initially affirmed the lower court decision, but then upon an en banc rehearing reversed: holding that in a New York Convention case where the arbitration seat is in the U. S., or where United States law governs the arbitration conduct, “Chapter 1 of the FAA provides the grounds for vacatur of the arbitral award. … § 208 of the FAA provides that ‘Chapter 1 applies to actions and proceedings brought under [Chapter 2] to the extent that chapter is not in conflict with [Chapter 2] or the [New York] Convention as ratified by the United States.’ …Chapter 1 of the FAA… thus acts as a gapfiller and provides the vacatur grounds for an international arbitration award otherwise governed by Chapter 2.”
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Attorney’s Fees Entitlement And Application Under Subcontract Default Provision
May 06, 2019 —
David Adelstein - Florida Construction Legal UpdatesMany subcontracts contain a provision in the default section that reads something to the effect:
“Upon any default, Subcontractor shall pay to Contractor its attorney’s fees and court costs incurred in enforcing this Subcontract or seeking any remedies hereunder.”
Oftentimes, a party may wonder as to the enforceability of the provision and how it is applied in the context of a dispute between a contractor and its subcontractor where both parties have asserted claims against the other.
In an opinion out of the Middle District of Georgia, U.S. f/u/b/o Cleveland Construction, Inc. v. Stellar Group, Inc., 2019 WL 338887 (M.D.Ga. 2019), a subcontractor and prime contractor on a federal construction project each asserted claims against the other in the approximate amount of $4 Million, meaning there was a potential $8 Million swing in the dispute.
The subcontract contained a provision entitling the contractor to recover attorney’s fees incurred in enforcing the subcontract or seeking remedies under the subcontract upon any default, identical to the provision above.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Federal Judge Issues Preliminary Injunction Blocking State's Enforcement of New Law Banning Mandatory Employee Arbitration Agreements
February 24, 2020 —
Amy R. Patton, Jeffrey K. Brown & Tyler B. Runge - Payne & FearsOn January 31, 2020, Judge Kimberly Mueller issued a preliminary injunction "in full" preventing the State of California from enforcing AB 51, the state's new law effectively banning mandatory employee arbitration agreements.
As we previously reported, AB 51 adds section 432.6 to the Labor Code and section 12953 to the Government Code, which together prohibit employers from requiring an employee, as a condition of employment, continued employment, or receipt of employment-related benefits, to waive any right, forum, or procedure to pursue a claim under the California Fair Employment and Housing Act or the Labor Code. In other words, AB 51 bans mandatory employment arbitration agreements for employment-related claims.
In early December 2019, the U.S. Chamber of Commerce and a coalition of business organizations sued the state of California in federal court in a bid to have AB 51 declared preempted --- and therefore unenforceable --- by the Federal Arbitration Act. The case is Chamber of Commerce of the United States v. Becerra, Case No. 2:19-cv-2456 KJM DB (E.D. Cal.).
On December 30, 2019, Judge Mueller issued a temporary restraining order preventing the state from enforcing AB 51 pending the resolution of plaintiffs' motion for a preliminary injunction. You can read our report
here.
Reprinted courtesy of Payne & Fears attorneys
Amy R. Patton,
Jeffrey K. Brown and
Tyler B. Runge
Ms. Patton may be contacted at arp@paynefears.com
Mr. Brown may be contacted at kb@paynefears.com
Mr. Runge may be contacted at tbr@paynefears.com
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