OSHA Set to Tag More Firms as Severe Violators Under New Criteria
November 01, 2022 —
Richard Korman & Stephanie Loder - Engineering News-RecordIn announcing last month broadened criteria for classifying employers as severe safety violators, U.S. Occupational Safety and Health Administration official Douglas Parker singled out a steel fabricator near El Paso, Texas. The U.S. Labor Dept. assistant secretary for occupational safety and health, he posted a blog stating that OSHA had placed Kyoei Steel Ltd. in its severe violators program, which subjects the firm to numerous re-inspections until it is allowed to exit.
Reprinted courtesy of
Richard Korman, Engineering News-Record and
Stephanie Loder, Engineering News-Record
Mr. Korman may be contacted at kormanr@enr.com
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The Value of Photographic Evidence in Construction Litigation
April 26, 2021 —
Marie Mueller - Construction ExecutiveIf a picture is worth a thousand words, can it be worth a thousand dollars? Ten thousand? Maybe, if it provides key evidence in a construction dispute. Litigating a construction case involves each side telling their story. Details and visual context make a story compelling. Evidence and corroboration make a story persuasive. Photographs can help on both of these fronts.
The Value of Photographic Evidence in Construction Litigation
Consider the following examples:
- A dispute relates to the timeliness of particular work. An employee has a memory of a load of materials arriving to the site later than it should have, but the records are incomplete or ambiguous about when it actually occurred. If the employee also took a photo of the materials, on the day they arrived, they could match up the date of the photo to their memory and build a clear timeline.
- A dispute relates to the presence or absence of obstructions in drilled shafts. There are no available photographs or videos of the work due to site restrictions. Presentation of this type of case may be severely limited by not being able to show photos depicting the size, shape and type of material removed from the shafts, and by the lack of video depicting the work.
Reprinted courtesy of
Marie Mueller, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Ms. Mueller may be contacted at
mmueller@verrill-law.com
Construction Employment Rose in 38 States from 2013 to 2014
March 19, 2014 —
Beverley BevenFlorez-CDJ STAFFThe Associated General Contractors of America (AGC) reported that 38 states experienced construction job growth from January 2013 to January 2014, and 27 states showed gains from December 2013 to January 2014. AGC stated that “the fact so many states added construction jobs for the year and month despite harsh winter conditions in many parts of the country is a sign that demand appears to be recovering.”
Kansas ranked first in the “12-month gain or loss” category with a 10.7% gain. Wyoming came in last with a -5.9% over a 12-month period. However, if examining a one-month period (between December 2013 and January 2014), Idaho showed the highest growth with a 5.8% gain, while Vermont was ranked 51 at -5.5%.
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A Word to the Wise: The AIA Revised Contract Documents Could Lead to New and Unanticipated Risks - Part II
October 16, 2018 —
George Talarico - Construction ExecutivePart I addressed general conditions, revised insurance terms, revisions that affect owner’s required insurance and revisions that affect contractor’s required insurance.
REVISIONS THAT AFFECT DISPUTE RESOLUTION
A seemingly minor but noteworthy change is to the definition of “Claim.” Under Section 15.1 a “Claim” is defined to:
- include a request for a modification of contract time; and
- exclude any requirement that an owner must file a claim to impose liquidated damages.
Notably, any request relating to contract time must be brought within the specified time period for Notice of Claim and in the prescribed manner. There are at least two traps for the unwary. First, even though email is regularly used for communications among the parties, the revised contract documents do not recognize email as an acceptable form of delivery of a Notice of Claim. Second, an unwary contractor may wrongly assume that an owner’s failure to assert a claim for LDs means that LDs will not be imposed. This may lull the contractor into failing to timely assert its own claim for a time extension and thereby waiving its ability to do so.
Reprinted courtesy of
George Talarico, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Talarico may be contacted at
gtalarico@sillscummis.com
Using Lien and Bond Claims to Secure Project Payments
March 01, 2021 —
Jonathan Cheatham - Construction ExecutiveWhile suing in court for payment on a construction project is nothing new, the very notion of non-payment tends evokes images of hard-working contractors and subcontractors, working with tight margins, owed payment for services rendered and materials. Fortunately, for general contractors and subcontractors in the construction industry, there are better remedies for securing payment on a project before it becomes a bigger issue.
Construction projects, especially large public ones, usually include a dizzying array of general contractors, subcontractors and independent contractors, sometimes numbering more than a hundred entities. The inter-connected groups of companies working toward the goal of project completion require competent construction management in order to stay on time and on budget for completion. One of the project owner’s key tools used to ensure the process runs smoothly is the use of payment bonds and surety bonds.
Payment Bonds
Payment bonds ensure that contractors and subcontractors get paid for work performed in accordance with contract conditions. Disputes can occur before, during and even after the completion of work. Injunctive lawsuits, which contemplate the stoppage of work, would be detrimental to completing a public or private construction project of substantial size. Rather than having such minor disputes derail the entire project, the aggrieved party’s remedy is to file a claim against the payment bond, which offers a solution designed to keep the issue separate from the project’s completion. The payment bond also allows the project owner to transfer risk.
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Jonathan Cheatham, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Did You Really Accept That Bid? – How Contractors Can Avoid Post-Acceptance Bid Disputes Over Contract Terms
July 28, 2016 —
David A. Harris & Steven M. Cvitanovic – Haight Brown & Bonesteel LLPWhen California general contractors submit bids to an owner, can they force their subcontractors to honor their bids? Can they recover damages if the subcontractor later refuses to do so?
While the general rule in California is that a general contractor who reasonably relies on a subcontractor’s bid may recover damages when the subcontractor reneges, the Court of Appeal for the Second Appellate District recently held that there is a substantial and important exception to the general rule.
In Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (LASC No. YC067984), the Court of Appeal held that where a general contractor requires a subcontractor to enter into a “standard-form subcontract” which materially differs from the subcontractor’s bid, the general contractor has rejected the subcontractor’s bid and has instead issued a counteroffer. The subcontractor is thereafter free to walk, or accept the new terms. If the subcontractor walks, the general contractor may not seek to enforce the terms of the subcontract or seek reliance damages.
Reprinted courtesy of
David A. Harris, Haight Brown & Bonesteel LLP and
Steven M. Cvitanovic, Haight Brown & Bonesteel LLP
Mr. Harris may be contacted at dharris@hbblaw.com
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com
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A Changing Climate for State Policy-Making Regarding Climate Change
February 18, 2020 —
Sheila McCafferty Harvey - Gravel2Gavel Construction & Real Estate Law BlogIssued by 13 federal agencies, the 2018 Fourth National Climate Assessment presented a stark warning on the consequences of climate change for the United States. The report predicts that if significant steps are not taken to rein in global warming, the damage will reduce the U.S. economy by as much as 10 percent by the end of the century. The report, which was mandated by Congress and made public by the White House, is notable not only for the precision of its calculations and bluntness of its conclusions—the 1,656-page assessment lays out the devastating effects of a changing climate on the economy—but also in how it conflicts with President Donald Trump’s environmental deregulation plan. U.S. policy efforts at the state and local levels are ramping up to address this complex topic. These include:
Targeting Net-Zero Emissions. Hailed as the most aggressive climate law in the nation, New York State’s Climate Leadership and Community Protection Act are targeting 100 percent carbon-free electricity by 2040 and economy-wide, net-zero carbon emissions by 2050. California set a statewide target to reach carbon neutrality by 2045.
Reducing and Renewing. New Mexico established a statewide goal of reducing greenhouse gas emissions by 45 percent below 2005 levels by 2030. Nevada passed a bill to increase the amount of electricity it gets from renewable resources to 50 percent by 2030.
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Sheila McCafferty Harvey, PillsburyMs. Harvey may be contacted at
sheila.harvey@pillsburylaw.com
Should I Stay or Should I Go? The Supreme Court Says “Stay”
June 10, 2024 —
Brendan J. Witry - The Dispute ResolverIn the construction industry, arbitration is a frequently agreed-upon and utilized dispute resolution method. The Federal Arbitration Act (the “FAA”), 9 U.S.C. 1, et seq., provides the underpinning and framework for how courts should handle litigation in connection with arbitration agreements. Where a party asserts that a claim brought in court should be subject to arbitration, Section 3 of the FAA provides that the action should be stayed. However, some courts have entertained a party’s request to dismiss a suit where the claim is subject to an arbitration agreement, creating a circuit split in the federal appeals courts. In
Smith v. Spizzirri, 2024 WL 2193872, issued on May 16, 2024, the Supreme Court held that, absent some other defect (such as the lack of personal or subject matter jurisdiction), Section 3 of the FAA requires a court which finds a claim is subject to an arbitration must stay the lawsuit during the arbitration proceedings rather than dismissing the action.[1] In so doing, the Court addressed a question that for years it left unanswered.
While most Circuits held, prior to Smith, that Section 3 requires a court to stay the litigation pending an arbitral award; the First, Fifth, Eighth, and Ninth Circuits each held that a court could dismiss an action in lieu of staying.
In Smith, both parties acknowledged the underlying claims were arbitrable, but when the district court compelled arbitration, the court dismissed the action rather than staying the court proceedings. The Ninth Circuit (relying on its prior precedent) affirmed, with two judges noting that the Ninth Circuit’s approach was incorrect. The Supreme Court granted certiorari and reversed.
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Brendan J. Witry, Laurie & Brennan LLPMr. Witry may be contacted at
bwitry@lauriebrennan.com
