Get Creative to Solve Your Construction Company's Staffing Challenges
February 25, 2024 —
Kit Dickinson - Construction ExecutiveConstruction projects are on the rise due to a generational investment in infrastructure spending. The Infrastructure Investment and Jobs Act passed by Congress in August 2021 includes around $550 billion in new federal investment in America’s roads and bridges, water infrastructure and more to be allocated over the next five years.
Because of the influx of federal funds for infrastructure, construction firms that previously focused on local, private sector clients are incentivized to pursue public projects in other states and regions. There are a couple of bumps in the road, however. Payroll becomes more complex when you’re paying across multiple jurisdictions and at different pay rates, and reporting requirements for government work make managing projects and controlling costs trickier. Add to this the changes in the Davis-Bacon Act prevailing wage rules which went into effect on October 23, 2023. To capture this business and make it worthwhile, construction professionals need technology built specifically for the industry.
Reprinted courtesy of
Kit Dickinson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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E-Commerce Logistics Test Limits of Tilt-Up Construction
January 28, 2019 —
Jeff Rubenstone - Engineering News-RecordWhile “fulfillment centers” and other e-commerce logistic facilities drive a hot market for the manufacturing sector, traditional construction methods such as tilt-up concrete panels are being pushed to ever-greater heights. At a recent project in Tulsa, Okla., contractor Clayco oversaw installation of tilt-up composite panels that reached 81 ft in height, using an unusual brace and a lot of careful pre-planning.
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Jeff Rubenstone, ENRMr. Rubenstone may be contacted at
rubenstonej@enr.com
Seeking the Urban Lifestyle in the Suburbs
March 05, 2015 —
Beverley BevenFlorez-CDJ STAFFAs the ‘burbs become more urbanized, the definition of city is changing. Builder Magazine reported that while builders have responded to buyers who wanted an urban lifestyle, “what nearly all of them have learned in the process is that ‘city’ doesn’t mean what it used to. Neither does ‘suburb.’ In fact, nearly every builder that added a post-recession ‘urban’ division has found that home buyers in search of an urban lifestyle aren’t married to living downtown. For many, it seems it’s not ‘the city’ they want at all—it’s the lifestyle.”
Leigh Gallagher, assistant managing editor of Fortune and author of The End of the Suburbs: Where the American Dream is Moving, told Builder, “People don’t necessarily want to live in Manhattan. They want a little bit of Manhattan sprinkled right near them.”
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Construction Defect Bill Removed from Committee Calendar
February 12, 2013 —
CDJ STAFFColorado State Senator Mark Scheffel has removed Senate Bill 13-052 from the Senate Judiciary Committee’s calendar because he feels an upcoming study on construction near transit centers will be important for the consideration of the bill. SB 13-052 would affect construction defect claims in communities that were within a half mile of public transportation. Critics claim it would gut construction defect protections, as even a bus stop would count as a “mass transit center.”
Scheffel says he doesn’t know what the study will find, but says that whether he likes or hates it, it will be relevant.
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Fifth Circuit Rules that Settlements in Underlying Action Constitute "Other Insurance"
April 17, 2019 —
Tiffany Casanova - Saxe Doernberger & Vita, P.C.The Fifth Circuit ruled that settlements between an insured and its subcontractors qualified as “other insurance” to the extent those settlements were used to pay for damages covered by an excess insurance policy. Policyholders should note the outcome of this case as it demonstrates the significant impact that settlements can have on coverage.
Satterfield & Pontikes Construction, Inc. v. Amerisure Mutual Ins. Co.1 was the result of a construction project gone wrong. Zapata County, Texas hired Satterfield & Pontikes (“S&P”) as a general contractor for the construction of a courthouse building. When the project did not go as planned, Zapata County terminated S&P, hired new subcontractors to complete the project, and sued S&P.
S&P, in turn, sought indemnification from its subcontractors, who were contractually obligated to indemnify S&P and procure insurance for any damage the subcontractors caused at the project. S&P also sought coverage from its own primary insurers, American Guarantee and Liability Insurance Company (“AGLIC”) and Amerisure Mutual Insurance Company (“Amerisure”), and its excess insurer, U.S. Fire Insurance Company (“U.S. Fire”) who provided liability coverage for S&P’s potential liabilities at the project. The policies contained exclusions for losses arising from mold and did not provide coverage for attorney’s fees or similar legal costs.
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Tiffany Casanova, Saxe Doernberger & Vita, P.C.Ms. Casanova may be contacted at
tlc@sdvlaw.com
Liability Policy’s Arbitration Endorsement Applies to Third Party Beneficiaries, Including Additional Insureds
May 11, 2020 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (No. C082841; filed 12/31/19, ord. pub. 1/28/20), a California appeals court held that a binding arbitration clause in an insurance policy extends to a third party, such as an additional insured.
In Philadelphia v. SMG, Philadelphia issued a general liability policy to a youth organization, Future Farmers of America (FFA), that had contracted to use the Fresno Convention Center for its annual convention. The contract required FFA to obtain liability insurance and to name the property manager, SMG, and the City of Fresno, as additional insureds. Philadelphia issued FFA a commercial lines CGL policy with an endorsement affording coverage to “managers, landlords, or lessors of premises” for “liability arising out of the ownership, maintenance or use of that part of the premises leased or rented” to the named insured. It also covered “any person or organization where required by a written contract executed prior to the occurrence” but only for liability arising from the named insured’s negligence.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
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Will a Notice of Non-Responsibility Prevent Enforcement of a California Mechanics Lien?
March 05, 2015 —
William L. Porter – Porter Law Group, Inc.The “Notice of Non-Responsibility” is one of the most misunderstood and ineffectively used of all the legal tools available to property owners in California construction law. As a result, in most cases the answer to the above question is “No”, the posting and recording of a Notice of Completion will not prevent enforcement of a California Mechanics Lien.
The mechanics lien is a tool used by a claimant who has not been paid for performing work or supplying materials to a construction project. It provides the claimant the right to encumber the property where the work was performed and thereafter sell the property in order to obtain payment for the work or materials, even though the claimant had no contract directly with the property owner. When properly used, a Notice of Non-Responsibility will render a mechanics lien unenforceable against the property where the construction work was performed. By derailing the mechanics lien the owner protects his property from a mechanics lien foreclosure sale. Unfortunately, owners often misunderstand when they can and cannot effectively use a Notice of Non-Responsibility. As a result, the Notice of Non-Responsibility is usually ineffective in protecting the owner and his property.
The rules for the use of the Notice of Non-Responsibility are found in California Civil Code section 8444. Deceptively simple, the rules essentially state that an owner “that did not contract for the work of improvement”, within 10 days after the owner first “has knowledge of the work of improvement”, may fill out the necessary legal form for a Notice of Non-Responsibility and post that form at the worksite and record it with the local County Recorder in order to prevent enforcement of a later mechanics lien on the property.
What commonly occurs however is that early in the process the owner authorizes or even requires its tenant to perform beneficial tenant improvements on the property. This authorization is often set forth in a tenant lease or other written document. The dispositive factor for determining whether the Notice of Non-Responsibility will be enforceable though is that the owner knows that these improvements will be made to the property and intends that they be made, usually long before the work begins. Indeed, the owner has usually negotiated these very terms into the lease contract. The owner then mistakenly believes that once work on the property commences it has 10 days to post and record a Notice of Non-Responsibility and thereby protect itself from a mechanics lien.
The usual error is two-fold. First, the statute states that the Notice is available when the owner “did not contract for the work of improvement”. The fact though is that the owner did contract for the work of improvement. It did so through the lease contract. This is true even though the owner’s contract was not with the contractor or supplier directly. Secondly, the 10 day period to post and record the Notice begins when the owner first “has knowledge” of the work of improvement. This knowledge was of course gained when the lease was negotiated and signed, providing knowledge typically many days before the work has begun. Thus, the 10 day period can also seldom be met. The Notice of Non-Responsibility will therefore fail both rules because the owner has in fact contracted for the improvement and because he does not act within 10 days of gaining this knowledge.
The next event in the typical scenario occurs when the tenant does not pay its contractor. The contractor then has nothing to pay its subcontractors. Material suppliers also go unpaid. Mechanics liens are then recorded by the unpaid claimants, followed by foreclosure actions within ninety days thereafter. Owners will typically point to the Notice of Non-Responsibility they posted and recorded, claiming its protection. Claimants then in turn point to the lease or other evidence that the owner knew of the pending improvements and contracted in some way that the improvements be performed, often also more than 10 days before they posted the Notice. Judges generally agree with the unpaid mechanics lien claimants and the Notice of Non-Responsibility is deemed ineffective.
The fact that the Court does not enforce the Notice of Non-Responsibility under these circumstances is not an unfair result. Since the owner authorized the work to be performed and it received a substantial benefit in the form of those improvements, it is not unfair that the owner should pay for those benefits. It would be inequitable for the owner to obtain the benefit of the improvements which it authorized but for which it did not pay, while allowing those who provided the benefit to go unpaid. Moreover, without such a system in place the door would be open to owners setting up sham “tenants” who would enter into contracts to have work performed, only to disappear when the work is completed, leaving the contractor without a source of payment. The system in place as described above prevents such duplicity. Owners would do well to arm themselves with proper knowledge of when the Notice of Non-Responsibility will and will not protect them and then responsibly use the Notice of Non-Responsibility.
For the legal eagles among you, the following cases illustrate the view of the courts, consistent with the above: Baker v. Hubbard (1980) 101 Cal.App.3d 226; Ott Hardware v. Yost (1945) 69 Cal. App.2d 593 (lease terms); Los Banos Gravel Co. v. Freeman (1976) 58 Cal.App.3d 785 (common interest); Howard S. Wright Construction Co. v. Superior Court (2003); 106 Cal.App.4th 314 (participating owner).
William L. Porter of
Porter Law Group, Inc. located in Sacramento, California may be contacted at (916) 381-7868 or bporter@porterlaw.com
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Thinking About a Daubert Motion to Challenge an Expert Opinion?
February 06, 2023 —
David Adelstein - Florida Construction Legal UpdatesWhen you receive an expert opinion, one of the first things you are considering is whether it is worth filing a Daubert motion / challenge. A Daubert motion is a generally a pretrial motion you are using to challenge the admissibility of the expert opinion. Keep in mind this deals with the admissibility, not the credibility, of the expert opinion. A Daubert motion is based on three prongs that must be answered: 1) is the witness qualified to render the expert opinion?; 2) is the expert’s opinion reliable?; and 3) is the expert’s opinion relevant?.
A Daubert motion is premised after Federal Rule of Evidence 702 that provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
- the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied the principles and methods to the facts of the case.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
