Changes to Arkansas Construction and Home Repair Laws
September 30, 2011 —
CDJ STAFFA new law, set to take effect in 2012, lowers the ceiling on when work must be done by a licensed contractor. Through the end of the year, projects costing $20,000 or more had to be done by an Arkansas licensed contractor. As of January 1, 2012, that new limit will be $2,000.
This will apply to all single-family residences and according to Lovely County Citizen, covers “construction, alteration, renovation, repair, modification, improvement, removal, demotion, or addition to a pre-existing structure.” Residential building contractors will be required to have workers compensation insurance, as will home improvement contactors if they take jobs worth more than $20,000.
Morris Dillow, a building inspector in Holiday Island, said, “It will get these scammers out of here who are ripping people off.” He cited the example of a contractor who after getting paid for roof repairs and painting, left the job unfinished.
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Florida Project Could Help Address Runoff, Algae Blooms
September 17, 2018 —
Thomas F. Armistead - Engineering News-RecordHeavy rainfall this spring overwhelmed Everglades infrastructure and required operators to discharge nutrient-laden water from Lake Okeechobee to South Florida’s east and west coasts. The resulting toxic algal blooms are fouling Florida’s coast, killing wildlife, driving away vacationers and local beachgoers and threatening public health.
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Thomas F. Armistead, ENRENR may be contacted at
ENR.com@bnpmedia.com
Montana Supreme Court Tackles Decade-Old Coverage Dispute Concerning Asbestos Mineworker Claims
December 20, 2021 —
Patricia B. Santelle & Paul A. Briganti - White and WilliamsOn November 23, 2021, the Montana Supreme Court issued an almost unanimous decision in National Indemnity Company v. State of Montana, a ten-year-old coverage dispute arising from claims against the State of Montana alleging it had failed to warn of asbestos dust conditions at vermiculite mining and milling operations in and around Libby, Montana (the Libby Mine) run by W.R. Grace & Company and its predecessors. Affirming in part and reversing in part rulings by the trial court that culminated in a $98 million judgment against the State’s CGL insurer from 1973 to 1975, the court addressed issues including the duty to defend/estoppel, the number of occurrences, “trigger of coverage,” and, in a case of first impression, allocation under Montana law.
Whether the Insurer Breached the Duty to Defend Depended Upon the Timeframe
The court looked at whether (1) the insured provided sufficient information to bring the claims within the possibility of coverage under the subject policy and (2) the insurer gave “the necessary substance to” fulfilling its duty to defend at four points in the relevant timeframe:
- The insurer did not breach its duty at the time the State initially tendered the Libby Mine claims because the State defended the claims through its self-insurance program, hired its own counsel, managed the litigation, made its own defense decisions, and took the position with the insurer that the matter was “under control” and “nothing was left to be done[.]”
Reprinted courtesy of
Patricia B. Santelle, White and Williams and
Paul A. Briganti, White and Williams
Ms. Santelle may be contacted at santellep@whiteandwilliams.com
Mr. Briganti may be contacted at brigantip@whiteandwilliams.com
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Texas Construction Firm Officials Sentenced in Contract-Fraud Case
August 07, 2018 —
Tom Ichniowski – Engineering News-RecordTwo top officials of a Texas construction company—Honest, Experienced, Reliable Contracting Solutions LLC—have been sentenced to federal prison terms for defrauding the State Dept. through a plan to steer more than $1 million in contracts to the company, the Dept. of Justice says.
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Tom Ichniowski, ENRMr. Ichniowski may be contacted at
ichniowskit@enr.com
Environmental Roundup – April 2019
May 06, 2019 —
Anthony B. Cavender - Gravel2GavelBesides showers, this April brought a number of notable new environmental decisions issued by the federal courts. Before your mind turns to May and its flowers, here’s a summary:
1.
DC Circuit. On April 23, 2019, the U.S. Court of Appeals for the DC Circuit decided the case of State of New York, et al. v. EPA. In the Clean Air Act amendments of 1990, the Congress established the Northeast Ozone Transport Region, composed of the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, the District of Columbia and a portion of Virginia. Recently, several of these states requested EPA to expand this region to include the “upwind states” of Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and the remaining portions of Virginia. Doing so would assist the “downwind” states in complying with EPA’s 2008 Ozone standard. EPA rejected this request, which was then appealed to the DC Circuit by the states of Connecticut, Delaware, Maryland, Massachusetts, New York, Pennsylvania, Rhode Island and Vermont. Because of its unique properties, ozone created by emissions in the upwind states can be transported to the downwind states, thus allegedly hampering their ability to cope with EPA ozone standards. The court agreed that EPA has the authority to expand the Northeast Transport Ozone Transport Region, but it also has the ability to exercise its reasonable discretion not to do so. In addition, the agency’s decision to rely instead on the remedies available to it in in the Clean Air Act’s “Good Neighbor” provision was reasonable and adequately justified, and the court accordingly upheld the agency’s decision. The court also noted that other remedies may be available to the downwind states, just not this one.
2.
DC Circuit. The Court also decided on April 23, 2019 the case of Air Transport Association of America v. Federal Aviation Administration. The FAA held that the payments made by the City of Portland’s airport’s utility city charges for offsite stormwater drainage and Superfund remediation was not an “impermissible diversion” of airport revenues or in violation of the “Anti-Head Tax Act,” which is codified at 49 USC Section 40116(b) and which prohibits collecting a tax on persons travelling in air commerce. Here, the charges are assessed against the airport for the use by the airport of the city’s water and sewage services. The Superfund assessment is based on the fact that the Willamette River which runs through downtown Portland could make the city a Superfund potentially responsible party, and the cty is assessing all rate payers—including the airport—a Superfund assessment. The airport is federally funded and is owned and operated by the Port of Portland, and the Port pays a combined sewer, stormwater /water bill with multiple line items including these contested items. The court notes that federal law, in particular 49 USC Section 47107(k)(2), authorizes airport revenues to be used for the operating costs of the airport receiving federal funding, and the FAA could reasonably determine that these general expenses are authorized airport “operating costs” even though the city services are provided outside the boundaries of the airport.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
What If Your CCP 998 Offer is Silent on Costs?
March 18, 2019 —
Tony Carucci - Snell & Wilmer Real Estate Litigation BlogIn California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. The potential payoff of a 998 offer is that “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.” Cal. Code Civ. Proc. § 998(c)(1) (emphasis added).
But how do you determine whether a plaintiff obtained a more favorable judgment when the 998 offer is silent with respect to whether it includes costs?
In Martinez v. Eatlite One, Inc. (2018) 27 Cal.App.5th 1181, 1182–83, the defendant made a 998 offer of $12,001 that was silent regarding the treatment of attorneys’ fees and costs. Plaintiff did not respond to the offer, and the jury ultimately awarded plaintiff damages of $11,490. Id. In resolving the parties’ competing memoranda of costs and plaintiff’s motion for attorneys’ fees, the trial court awarded plaintiff her costs and attorneys’ fees. Id. at 1182. The trial court reasoned that plaintiff had obtained a more favorable judgment than the 998 offer because she was entitled to pre-offer costs and attorneys’ fees under the statute, which meant plaintiff’s ultimate recovery exceeded the 998 offer when added to the judgment. Id. at 1183. In other words, the court added plaintiff’s pre-offer costs and attorneys’ fees to the $11,490 verdict for the purposes of determining whether the “judgment” was greater than the 998 offer of $12,001. Id.
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Tony Carucci, Snell & WilmerMr. Carucci may be contacted at
acarucci@swlaw.com
The Rise of Modular Construction – Impacts for Consideration
December 04, 2023 —
Chad V. Theriot - ConsensusDocsModular construction is not new. However, over the last several years, modular construction has seen significant growth with no signs of slowing down. In 2021, global modular construction represented a market of approximately $130 billion and is projected to reach upwards of $235 billion by 2031. Modular construction growth in the US is largely due to the technological advances and globalization.
In general, modular construction involves the manufacturing and fabrication of standardized components of a structure in an off-site, controlled environment. Once those components are fabricated, they are then transported to the project site and assembled by an installer or contractor. Moving these fabrication and construction activities off-site allows the fabricator to control the quality standards over the fabrication process and gain the economic advantage of an assembly line and manufacturing process. This leads to a reduction in cost. This cost savings is then passed on to the owner, thereby driving down the overall price of construction.
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Chad V. Theriot, Jones Walker (ConsensusDocs)Mr. Theriot may be contacted at
ctheriot@joneswalker.com
California Rejects Judgments By Confession Pursuant to Civil Code Section 1132
May 08, 2023 —
Drew M. Jorgenson & Louis "Dutch" Schotemeyer - Newmeyer DillionThe Elimination of Judgment by Confession
Following in the footsteps of Massachusetts and Florida, California recently updated California Code of Civil Procedure section 1132 which renders judgments by confession unenforceable and inadmissible in any superior court, effective January 1, 2023. The bar is not retroactive, so judgments by confession obtained or entered before January 1, 2023 are still valid. Moving forward, consider the following.
What is a Judgment By Confession?
A judgment by confession, also known as a confession of judgment or "cognovit" clause, is a mechanism by which a debtor agrees that a creditor may summarily obtain a legal judgment against that debtor and enforce it in the event of the debtor's breach of contract or default. In other words, it is a private admission by a debtor that they are liable for a debt without the need for a trial, and consequently, agree to forfeit very important rights. Most importantly, parties agreeing to such clauses are waiving rights such as the right to notice of the judgment and the right to assert defenses against the creditor or third party's claims. Historically, without any judicial involvement, these types of out-of-court judgments would be enforceable.
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Drew M. Jorgenson, Newmeyer Dillion and
Louis "Dutch" Schotemeyer, Newmeyer Dillion
Mr. Jorgenson may be contacted at drew.jorgenson@ndlf.com
Mr. Schotemeyer may be contacted at dutch.schotemeyer@ndlf.com
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