Not in My Kitchen – California Supreme Court Decertifies Golden State Boring Case
November 26, 2014 —
Roger Hughes – California Construction Law BlogOn November 11, 2014, the California Supreme Court rejected the recent California Court of Appeals decision Golden State Boring & Pipe Jacking, Inc. v Eastern Municipal Water District, 228 Cal.App.4th 273 (2014) which we wrote about earlier by “decertifying” it (meaning that lawyers cannot cite to the case as legal precedent) The decertification removed a decision that added substantially to the confusion as to when an action on a payment bond is timely filed. Even though the decision was determined in accordance with pre-2014 statutes, the case was relevant precedent for construction attorneys when determining time deadlines for filing a claim on a bond.
Background
In July of this year, the California Court of Appeals for the Fourth Appellate District upheld a trial court’s granting of summary judgment against a project subcontractor Golden State Boring & Pipe Jacking, Inc. (GSB) who sued Safeco Insurance Company (Safeco) for unpaid contract amounts on a project payment bond issued by Safeco. Both at the trial level and on appeal Safeco successfully argued that GSB’s action on its payment bond claim was time barred by former California Civil Code Sections 3249 (now Section 9558), because it was filed more than six month after the period in which stop notices may be filed as provided by California’s Civil Code Section 3184 (now Section 9558).
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Roger Hughes, Wendel Rosen Black & Dean LLPMr. Hughes may be contacted at
rhughes@wendel.com
Insured's Claim for Water Damage Dismissed with Leave to Amend
August 12, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe court granted the insurer's motion to dismiss the insured's claim for water damage under a homeowners' policy, but granted leave to amend. Thompson v. State Farm Gen. Ins. Co., 2024 U.S. Dist. LEXIS 98486 (C.D. Cal. June 3, 2024).
The insureds' first amended complaint alleged they "suffered a sudden and accidental water loss below their slab in their home." A plumber hired by the insureds discovered "a copper pipe burst inside a structural concrete footing between a manifold in the living room and the water heater." The insureds notified their insurer, State Farm.
Claim adjuster Andrea Acevedo conducted a visual inspection. The complaint alleged she did not "inspect or view the pipe, or have a testing conducted on the pipe." Acevedo sent a letter denying the insureds' claim based upon her finding that "because the loss was caused by a slab leak, there is no coverage available for the loss." The letter explained that the hot water supply line under the home failed due to wear, tear, deterioration and/or electrolysis. The predominant cause of loss to the failed pipe was due to one or a combination of rust, electrolysis, corrosion, wear, tear and/or deterioration. The policy did not cover water damage caused by water from below the surface of the ground. Further coverage for wear, tear, deterioration, rot, mold, maintenance, water from below the surface of the ground and a continuous or repeated seepage or leakage of water was excluded.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Colorado’s Workers’ Compensation Act and the Construction Industry
June 20, 2022 —
Jordan Kaplan - Colorado Construction LitigationIn general, issues relating to employment law occur in all industries. However, some issues are more likely to be raised in certain employment contexts. For example, office work environments tend to give rise to harassment and discrimination claims while wage and hour disputes and workplace safety claims are common in the oil and gas industry. In the construction industry, employers must be especially cognizant of discrimination and harassment claims, employee misclassification claims, workplace safety issues, and wage and hour claims. In the context of workers’ compensation claims, construction projects often create unusual situations due to the contractual relationships between the parties.
Even relatively simple construction of a single-family residence involves several levels of contracting, including between the owner and general contractor, between the owner or general contractor and design team, between the general contractor and subcontractors, and between the prime subcontractors and lower tiered sub-subcontractors. In most circumstances, this would not be an issue. However, when an injured worker makes a workers’ compensation claim, the contractual relationships among the various entities involved in a project can have a significant impact on which party or parties could be liable for the injury.
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Jordan Kaplan, Higgins, Hopkins, McLain & Roswell, LLCMr. Kaplan may be contacted at
kaplan@hhmrlaw.com
Coyness is Nice. Just Not When Seeking a Default Judgment
March 04, 2019 —
Garret Murai - California Construction Law BlogAs Morrissey of the Smith’s sang: Coyness is nice, but Coyness can stop you, from saying all the things in life you’d like to.
It’s not uncommon in litigation to see a complaint asking for “damages according to proof.” Call it laziness. Call it hiding the ball. Call it coy, even. I call it risky.
And here’s why: If a defendant doesn’t appear and you need to seek a default judgment against him, her, or it, you are barred from doing so, since you are limited to recovering the amount you sought. And last I checked, something of nothing is nothing.
In Yu v. Liberty Surplus Insurance Corporation, California Court of Appeals for the Fourth District, Case No. G054522 (December 11, 2018), one plaintiff found this out the hard way, although perhaps not quite in the way they expected it.
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Garret Murai, Wendel RosenMr. Murai may be contacted at
gmurai@wendel.com
New Zealand Using Plywood Banned Elsewhere
October 30, 2013 —
CDJ STAFFCopper chromium arsenate helps protect wood against insect damage and fungal growth. Unfortunately, its use leads to arsenic exposure. The safety concerns over CCA for both construction workers and the people who later use the buildings have led to the CCA-treated plywood being banned or restricted in most countries, including the United States, Canada, France, the United Kingdom, and Germany.
New Zealand is not on the list of countries restricting or banning CCA-treated wood. Dr. Merial Watts, a science coordinator for Pesticide Action Network NZ described the product as an “unacceptable public health risk,” and said that “wrapping homes in CCA-treated plywood is a very bad idea.”
One construction official, speaking anonymously, noted that “workers have to handle it with gloves and full body suits,” but those guidelines may not be followed. A foreman on a building site said “I know about the treatment but I don’t take many precautions.”
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The G2G Year in Review: 2019
February 03, 2020 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogAs we kick off the new decade, we wanted to share the top five most-read articles of 2019 from Gravel2Gavel. The most-read blog posts covered 2019 real estate and construction industry trends ranging from affordable housing to the new State Bill 35 (SB 35) to sustainability in modern real estate. Our posts provided deep insight and detailed case studies, and summarized hot topics that addressed the legal implications and exciting disruptions that are affecting the industry. We hope you enjoy the roundup:
- Assessing SB 35—Success or Failure? by Robert Howard, Alexander Walker and Matt Olhausen
Robert, Alex and Matt examined the newly implemented SB 35 and highlighted real examples of SB 35 in action.
- Update Your California Release Provisions to Include Amended Section 1542 Language by William S. Hale, P.E.
Bill Hale encouraged readers to update their California release provisions to include Amended Section 1542 Language, which ensures that the releasing party is consciously releasing both known and unknown claims that may be later discovered.
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Pillsbury's Construction & Real Estate Law Team
From Both Sides Now: Looking at Contracts Through a Post-Pandemic Lens
August 03, 2020 —
Lori S. Smith - White and WilliamsA little over a year ago, I wrote a blog post about the danger of relying on precedent. Now, more than ever, clients and their advisors need to revisit contract forms on which they may have been relying for years. While many of us have lived through times that required certain adjustments in how we viewed contractual obligations — recessions, wars, oil embargoes, natural disasters, 9/11 — none of these events had the widespread and long-lasting impact that the current COVID-19 pandemic is having. None of these events shut down the U.S. economy and impacted global supply chains across every industry in the manner we are now experiencing.
With this in mind, there is a need to figure out what the “new normal” will look like for contract negotiations in a post-pandemic world. Business professionals need to now anticipate more widespread disruption than we could have ever before imagined. It isn’t just force majeure clauses or material adverse effect provisions, as these will likely add pandemics and government shutdowns to their ever-growing list of contemplated risks, if they were not already expressly covered. And it is not clear, at least in the near-term, whether a resurgence or mutation of COVID-19 or the emergence of another virus can truly be seen as unforeseeable in a post-COVID world. The issues are much more fundamental to the approach that parties may take in negotiating contracts. Commercial contracts between purchasers, vendors, distributors, licensors and licensees will need to evaluate allocation of risk from both sides and come to a new happy medium that all can live with in an ever-evolving world. While parties should review their standard contracts in their entirety, some key provisions to think about include:
- Length of the contract and exclusivity. Depending on which side you are on, you may want to reconsider a long-term arrangement that ties your company to a particular vendor or distributor. Supply chain disruption can have a seriously detrimental impact on your business. Are requirements contracts where a particular supplier is required to make available all of your needs for a certain good or service really the best arrangement for your business? What about take or pay arrangements where you are obligated to which are common in certain industries pay a minimum amount or a penalty to a supplier whether or not you actually purchase the contemplated volume of goods ? Do you really want to be tied up in an exclusive arrangement, or do you need flexibility to maintain secondary or tertiary sources of supply? Do you want to provide a licensee with an exclusive right to your technology (even within a limited field of use or industry sector)?
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Lori S. Smith, White and WilliamsMs. Smith may be contacted at
smithl@whiteandwilliams.com
SB800 Is Now Optional to the Homeowner?
August 30, 2013 —
James Ganion - Ulich & Terry, LLPThe following communication republished courtesy of James Ganion, Ulich & Terry, LLP
Dear Builders, Colleagues, and Interested Parties:
I attach for your review a copy of this week’s opinion of the California Court of Appeal in our case of Liberty Mutual v. Brookfield. This opinion represents a significant change to the right of California builders to repair homes under SB800, California’s Right to Repair Act.
In a nutshell, the Court determined that SB800 was not intended to replace prior applicable law, but merely be supplemental to prior law. Thus, a homeowner, or in this case the homeowner’s insurer, can pick and choose among SB800 and prior law, or even allege both in the alternative. In so deciding, the Court of Appeal reversed the holding of the trial court which had held, as so many trial courts have since 2003, that SB800 was intended to be the new exclusive remedy for construction defect claims.
While we of course take issue with most of what the Court of Appeal has to say, the real life net effect is that SB800 is now optional to the homeowner, meaning the “right” to repair now lies in the hands of the homeowner who can elect to simply bypass that law and proceed with the filing of a lawsuit under prior law. Hardly what any of us believe the legislature intended.
ULICH & TERRY LLP as counsel for Brookfield in this case will be filing a petition for rehearing with the Court of Appeal by September 6, 2013. Anyone interested in supporting the petition may file a letter with the Court of Appeal, preferably by September 13, 2013. Thereafter, assuming the Court of Appeal does not grant rehearing, we will be filing a petition for review with the California Supreme Court.
Our firm, as appellate counsel, has established a website
libertymutualvbrookfieldcrystalcove.com and through it will be providing information regarding the case, including copies of pleadings, orders, deadlines, and information on how to provide support for this case, which is of interest to the home building industry.
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James Ganion James Ganion can be contacted at
jganion@ut-law.com
