Summary Judgment in Favor of General Contractor Under Privette Doctrine Overturned: Lessons Learned
March 27, 2023 —
Garret Murai - California Construction Law BlogIt seems like we’ve been seeing a lot of Privette doctrine cases recently. Here’s another,
Brown v. Beach House Design & Development, 85 Cal.App.5th 516 (2002), which provides a cautionary tale for general contractors to watch what they include in their scope of work and how they manage projects.
The Beach House Case
Kyle Brown was a carpenter employed by subcontractor O’Rourke Construction, Inc. who contracted with general contractor Beach House Design and Development to provide finish carpentry on a construction project. A&D Plastering Co., another subcontractor on the project, had erected scaffolding on the project.
On June 16, 2017, while using A&D’s scaffolding, Brown fell onto a concrete walkway where he suffered severe injuries. Following the accident, Beach House and A&D inspected the scaffolding and found that some of the scaffolding was not properly secured to the building and that planks, crossbars, ties and guardrails had been cut or were missing.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Building a Case: Document Management for Construction Litigation
October 07, 2019 —
Robert A. Gallagher, Jane Fox Lehman, & Michael I. Frankel, Pepper Hamilton LLP - ConsensusDocsSuccess in construction litigation often turns less on counsel’s ability to craft legal arguments and more on counsel’s ability to gather, master and present the often complex set of facts underlying the case. In construction matters, most of the key facts are found in documents: contract documents, drawings, plans and specifications, schedules, submittals, progress reports, daily logs, change orders, invoices and payment records. Nowadays, these documents will almost certainly be created, exchanged and stored electronically; many will never exist in hard copy. As such, timely collection, organization and analysis of electronically stored information (ESI) is crucially important in construction litigation.
The construction industry has always involved a large quantity of records. Today, the majority of those records exist only as ESI: Design professionals use computer-aided design (CAD) software to create construction plans. Construction managers use Primavera or similar software to create schedules and workflows. Estimators use job cost control programs. Innovative firms capture digital photos of the project, from mobilization through the punch process.
Because ESI is created and exchanged at a higher rate than hard-copy documents, ESI has facilitated a dramatic increase in the volume of records associated with construction projects. Further compounding the increase is the proliferation of mobile devices. With a smartphone in every pocket, ESI creation has moved out of the home office and the site trailer and onto the site itself. As the volume of ESI expands, so too does the time and expense associated with storing, processing, reviewing and producing these records. This article will cover strategies for balancing time and expense with the requirements of the rules and the needs of the case.
Reprinted courtesy of Pepper Hamilton LLP attorneys
Robert A. Gallagher,
Jane Fox Lehman and
Michael I. Frankel
Mr. Gallagher may be contacted at gallagherr@pepperlaw.com
Ms. Lehman may be contacted at lehmanj@pepperlaw.com
Mr. Frankel may be contacted at frankelm@pepperlaw.com
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Georgia Supreme Court Rules Construction Defects Can Constitute an Occurrence in CGL Policies
April 05, 2011 —
Beverley BevenFlorez CDJ STAFFRecently, the Supreme Court of Georgia reversed the decision in American Empire Surplus Lines Insurance Company v Hathaway Development Company, Inc. stating that because Whisnant’s faulty workmanship caused damage to the surrounding properties, the construction defects constituted “occurrences” under the Commercial General Liability (CGL) policy. Unlike the South Carolina Supreme court ruling in the case of Crossman Communities v Harleysville Mutual, the Georgia Supreme Court stated that an accident can happen intentionally if the effect is not the intended result.
Interestingly, the only dissenting judge, J. Melton, disagreed with his colleagues on the basis that “although the term ‘accident’ is not specifically defined in the policy, it is axiomatic that an ‘accident’ cannot result from ‘intentional’ behavior.” It is clear that what constitutes an occurrence in CGL policies is still being hotly debated.
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It Has Started: Supply-Chain, Warehouse and Retail Workers of Essential Businesses Are Filing Suit
June 22, 2020 —
Robert G. Devine, James Burger & Douglas Weck - White and Williams LLPSupply-chain businesses that are appropriately characterized as “essential” have remained open for the delivery of critical supplies while everyone else has been told to close up shop and stay home. Now essential-business employees are contracting COVID-19 and filing suit. Following up on our earlier piece — “Is a Violation of a COVID-19 Order the Basis For Civil Liability?” — it is important to recognize that government directives, oftentimes couched as “recommendations,” can come to define what it means to provide a reasonably safe workplace that protects employees from COVID-19. While common law negligence defenses consider the reasonableness of conduct, these directives will likely become the standard.
The cases that have been filed are overwhelmingly premised upon the timeless negligence construct. The negligence construct, simply put, imposes a duty to act as a reasonable person would under the circumstances. Nonetheless, while the negligence construct lives in the ordinary world of “reasonableness,” infection-control guidance lives in the rapidly developing world of the science of COVID-19. Guidance on seemingly basic questions, such as the methods of transmission (e.g., personal contact, mucus membrane only, airborne transmission) or even the virus’s shelf life on different surfaces, of particular interest packaging and material handling equipment, can change by the day. All of this provides challenges for the supply-side business looking to protect its workforce.
Reprinted courtesy of White and Williams LLP attorneys
James Burger,
Robert Devine and
Douglas Weck
Mr. Burger may be contacted at burgerj@whiteandwilliams.com
Mr. Devine may be contacted at deviner@whiteandwilliams.com
Mr. Weck may be contacted at weckd@whiteandwilliams.com
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Construction Law Client Alert: California Is One Step Closer to Prohibiting Type I Indemnity Agreements In Private Commercial Projects
June 15, 2011 —
Haight Brown & Bonesteel, LLPOn June 1, 2011 by majority vote, the California Senate passed Senate Bill 474, which would amend Civil Code section 2782, and add Civil Code section 2782.05. The passage of this new law is a critical development for real estate developers, general contractors and subcontractors because it will affect how these projects are insured and how disputes are resolved.
Civil Code section 2782 was amended in 2007 to prohibit Type I indemnity agreements for residential projects only. Since 2007, various trade associations and labor unions have lobbied to expand those very same restrictions to other projects. These new provisions apply to contracts, entered into after January 1, 2013, that are not for residential projects, and that are not executed by a public entity. The revisions provide that any provision in a contract purporting to indemnify, hold harmless, and defend another for their negligence or other fault is against public policy and void. These provisions cannot be waived.
A provision in a contract requiring additional insured coverage is also void and unenforceable to the extent it would be prohibited under the new law. Moreover, the new law does not apply to wrap-up insurance policies or programs, or a cause of action for breach of contract or warranty that exists independently of the indemnity obligation.
The practical impact of this new law is that greater participation in wrap-up insurance programs will likely result. While many wrap-up programs suffer from problems such as insufficient limits, and disputes about funding the self-insured retention, the incentive for the developer or general contractor to utilize wrap-up insurance will be greater than ever before because they will no longer be able to spread the risk of the litigation to the trades and the trade carriers.
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Reprinted courtesy of Steve Cvitanovic of Haight Brown & Bonesteel, LLP.
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Making Construction Innovation Stick
February 22, 2018 —
Tom Sawyer, Jeff Rubenstone, and Scott Lewis – ENRIntegrating innovations into construction workflows—rather than serially testing, piloting and discarding them—is a definition of success. Yet few innovations—even ones that shine in trials—are absorbed into practice. Many just quietly go away, sending the work of vetting and testing them down the drain. That leaves some firms wondering if most construction technology innovation efforts are a waste of time.
Reprinted courtesy of Engineering News-Record authors
Tom Sawyer,
Jeff Rubenstone and
Scott Lewis
Mr. Sawyer may be contacted at sawyert@enr.com
Mr. Rubenstone may be contacted at rubenstonej@enr.com
Mr. Lewis may be contacted at lewisw@enr.com
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Bert L. Howe & Associates Brings Professional Development Series to Their San Antonio Office
March 28, 2014 —
Beverley BevenFlorez-CDJ STAFFMirroring similar seminars currently provided in other regional markets, BHA’s Professional Development Series provides seminar attendees with a heightened level of knowledge and understanding on a wide range of subjects covering construction and construction defect litigation, tailored to the unique needs of local counsel and insureds.
The first seminar in this series will be presented on May 9th, and is entitled THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION.
This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.0 credit hours, of which 0.0 credit hours will apply to legal ethics/professional responsibility credit.
The seminar will be presented by Don MacGregor, general contractor and project manager, at BHA’s San Antonio office during the noontime hour, and luncheon will be provided. As with all BHA Professional Development activities, there is no cost for participation.
Water intrusion through doors, windows and roofing systems, as well as soil and foundation-related movement, and the resultant damage associated therewith, are the triggering effects for the vast majority of homeowner complaints today and serve as the basis for most residential construction defect litigation.
The graphic and animation-supported workshop/lecture activity will focus on the residential construction process from site preparation through occupancy, an examination of associated damages most often encountered when investigating construction defect claims, and the inter-relationships between the developer, general contractor, sub trades and design professionals.
Typical plaintiff homeowner/HOA expert allegations will be examined in connection with those building components most frequently associated with construction defect and claims litigation.
The workshop will examine:
* Typical construction materials, and terminology associated with residential construction
* The installation process and sequencing of major construction elements, including interrelationship with other building assemblies
* The parties (subcontractors) typically associated with major construction assemblies and components
* The various ASTM standard testing protocols utilized to field test buildings
* An analysis of exposure/allocation to responsible parties
Attendance at THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION seminar will provide the attendee with:
* A greater understanding of the terms and conditions encountered when dealing with common construction defect issues
* A greater understanding of contractual scopes of work encountered when reviewing construction contract documents
* The ability to identify, both quickly and accurately, potentially responsible parties
* An understanding of damages most often associated with construction defects, as well as a greater ability to identify conditions triggering coverage
* Assistance in the satisfaction of important continuing education requirements.
Course #: 901290467 / Sponsor #: 14152
To register for the event, please email Don MacGregor at dmac@berthowe.com.
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New Proposed Regulations Expand CFIUS Jurisdiction Regarding Real Estate
January 20, 2020 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogOn September 17, 2019, the U.S. Department of Treasury issued two new proposed rules for the Committee on Foreign Investment in the United States (CFIUS) implementing the Foreign Investment Risk Review Modernization Act (FIRRMA). Of particular interest to readers of this blog was the second of the proposed rules, which addressed FIRRMA’s real estate-related expansion of CFIUS jurisdiction.
Pillsbury's Construction & Real Estate Law Team
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