Rising Construction Disputes Require Improved Legal Finance
November 15, 2022 —
Apoorva Patel - Construction ExecutiveConstruction disputes are famously high stakes, and the industry is currently experiencing an uptick in the value and number of disputes resulting from contractual obligations and third-party or force majeure incidents. While this is not entirely surprising given COVID-19’s disruption of global markets and supply chains, the numbers are noteworthy.
For example, in 2020 alone, the International Chamber of Commerce (ICC)—the leading institution for construction disputes, partly because its clauses feature in many FIDIC standard form contracts—registered 194 construction arbitrations, and construction disputes now comprise over 20% of the ICC caseload.
In addition to the damage to business outcomes that the underlying disputes may present, parties can quickly spend many millions on legal fees and expenses, as well as technical experts and consultants, if and when those disputes progress through the courts or arbitration. According to Norton Rose’s 2020 Global Construction Disputes Report, the average construction dispute value rose sharply from $30.7 million in 2019 to $54.26 million in 2020.
Reprinted courtesy of
Apoorva Patel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
COVID-19 Business Interruption Lawsuits Begin: Iconic Oceana Grill in New Orleans Files Insurance Coverage Lawsuit
April 20, 2020 —
Jeffrey J. Vita & William S. Bennett - Saxe Doernberger & Vita, P.C.On Monday, the iconic New Orleans restaurant, Oceana Grill, filed the first Coronavirus-related business interruption insurance coverage lawsuit in a US jurisdiction. The declaratory judgment action styled Cajun Conti, LLC, et. al. d/b/a Oceana Grill v. Certain Underwriters at Lloyd’s, London was filed in Louisiana state court for the Parish of Orleans. As a direct result of the government-mandated closures and restrictions on public gatherings implemented by the City of New Orleans and State of Louisiana, Oceana Grill’s petition anticipates a significant loss of business income.
Based on allegations in the petition, there are several aspects of Oceana Grill’s policy that make this a good test case for business interruption coverage stemming from the Coronavirus. Although the specific policy language is not quoted in the petition, coverage provisions are categorically identified throughout.
As a preliminary matter, the policy at issue appears to be written on an “all risks” basis, meaning the insuring agreement of the policy would likely be triggered generally by all risks of “physical loss or damage” unless specifically excluded. This basis for coverage, which is common in property policies, is advantageous to policyholders, as it limits the insured’s burden of proof to establishing that there was physical loss or damage while leaving the burden of applying any more specific exclusion to the insurance company.
Reprinted courtesy of
Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and
William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at jjv@sdvlaw.com
Mr. Bennett may be contacted at wsb@sdvlaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Newmeyer Dillion Announces Partner John Van Vlear Named to Board Of Groundwater Resources Association Of California
January 13, 2020 —
Newmeyer DillionProminent Orange County-based law firm Newmeyer Dillion is pleased to announce that partner
John Van Vlear has been elected to the Board of Directors for the Groundwater Resources Association of California (GRA). He will serve a three year term effective immediately.
"It was an honor to be nominated and I'm excited to help further GRA's goal of remaining the preeminent professional organization in the West addressing timely and important groundwater issues," says Van Vlear. He has been a member of the GRA for five years and has spoken both at a Southern California branch event and the 2nd Annual Western Groundwater Congress in Sacramento. Serving on the GRA Board will be Van Vlear's fourth different lifetime non-profit Board volunteer effort. He joins a diverse group of members to complete the Board, including a hydrologist with the US Geological Survey, environmental and engineering consultants, an equipment manufacturer, and water agencies' managers.
Van Vlear's practice focuses on all aspects of "contaminated sites" environmental legal work. Applying technical acumen, he focuses on investigation, strategic analysis, and remediation for site acquisitions/sales, development, regulatory interface, and related litigation in federal and state courts. He represents clients before a wide range of environmental agencies and has a portfolio of projects that include: commercial, industrial, raw land, and residential, as well as specialty facilities such as affordable housing, oil fields, and landfills throughout California and across the country. These matters have involved a complex blend of soil, groundwater, and vapor contamination. Van Vlear is a frequent speaker on environmental, real estate and contamination topics, as well as being a professional author and novelist, an expert witness, and arbitrator on environmental issues. He has been interviewed on TV twice professionally and has testified before the California Senate subcommittee on Environmental Quality.
Established in 1992, the GRA is a 1,000 member state-wide professional organization dedicated to resource management that protects and improves groundwater supply and quality through education and technical leadership. The GRA hosts programs and webinars focusing on important issues to water management community at both the state-wide and regional branch levels.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 70 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's success and bottom line. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
Read the court decisionRead the full story...Reprinted courtesy of
Breaking with Tradition, The Current NLRB is on a Rulemaking Tear: Election Procedures, Recognition Bar, and 9(a) Collective Bargaining Relationships
September 09, 2019 —
Keahn Morris, John Bolesta & James Hays - Construction and Infrastructure Law BlogIn its 84-year history, the National Labor Relations Board (NLRB, Board or Agency) has promulgated a very small number of rules pursuant to the Administrative Procedures Act, relying, instead, on individualized adjudications to establish the Board’s legislative policies. However, breaking with that long tradition, the current Board now appears to be on the verge of a formal rulemaking jag for on May 22, the Board released its “Unified Agenda” of anticipated regulatory actions which, in addition to proceeding with rulemaking regarding joint employer standards, announced the Board’s intention to consider formal rulemaking in a number of critical areas. Consistent with that wide-ranging Agenda, on August 12, the Board published a Notice of Proposed Rulemaking (NPRM) over the objection of Democratic appointee, Lauren McFerran, that would amend the Agency’s rules and regulations governing the filing and processing of election petitions in three very important ways. This NPRM, therefore, deserves attention.
The first possible amendment will modify the Board’s administrative election blocking charge practice by establishing a regulation-based vote and impound procedure to be used when a party, typically a union facing possible decertification, files an unfair labor practice (ULP) charge and, based thereon, seeks to block the holding of an election.
The second possible amendment will modify the Board’s current recognition bar case law by codifying prior Board case doctrine and creating a regulation-based requirement of notice of voluntary recognition to affected employees and a 45-day open period within which affected employees may call for an election before that voluntary recognition will be allowed to operate as a bar to employees raising later questions concerning the union’s representative status (QCR).
Reprinted courtesy of Sheppard Mullin attorneys
Keahn Morris,
John Bolesta and
James Hays
Mr. Morris may be contacted at kmorris@sheppardmullin.com
Mr. Bolesta may be contacted at jbolesta@sheppardmullin.com
Mr. Hays may be contacted at jhays@sheppardmullin.com
Read the court decisionRead the full story...Reprinted courtesy of
It’s Not What You Were Thinking!
December 10, 2024 —
Daniel Lund III - LexologyAt least it is not what the lower court was thinking… but the same result for a general contractor seeking to have its comprehensive general liability insurer pay the GC’s defense related to claims for physical damage on a construction project.
In reviewing the Massachusetts federal district court’s ruling in favor of the insurer, the United States First Circuit Court of Appeals posited: “The principal question is whether a general contractor’s CGL insurance policy covers damage to a non-defective part of the contractor’s project resulting from a subcontractor’s defective work on a different part of that project.”
The district court had held under Massachusetts law that the insurer had no duty to defend because the lawsuit “did not allege ‘property damage’ caused by an ‘ occurrence,’ as required for coverage” under the policy (a defense that was urged by the insurer). The Court of Appeals affirmed, “albeit for different reasons.”
Read the court decisionRead the full story...Reprinted courtesy of
Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
The Sounds of Silence: Pennsylvania’s Sutton Rule
January 29, 2024 —
William L. Doerler - The Subrogation StrategistIn Westminster Am. Ins. Co. a/s/o Androulla M. Toffalli v. Bond, No. 538 EDA 2023, 2023 Pa. Super. LEXIS 626, 2023 PA Super 272, the Superior Court of Pennsylvania (Appellate Court) recently discussed the impact of silence on the Sutton Rule with respect to the landlord, Androulla M. Toffalli (Landlord), securing insurance. After holding that the tenant, Amy S. Bond (Bond) t/a Blondie’s Salon – who leased both commercial and residential space in the building pursuant to written leases – was not an implied “co-insured” on Landlord’s insurance policy, the Appellate Court reversed the decision of the trial court.
In this case, Bond rented the ground floor of a property located in Monroe County pursuant to a written commercial lease (Commercial Lease) and operated Blondie’s salon out of the leased location. In addition, Bond rented and lived in a second-floor apartment pursuant to a residential lease (Residential Lease). Both leases required the tenants (Tenants) to obtain insurance for personal items. The leases, however, did not require Landlord to obtain fire insurance for the property.
Read the court decisionRead the full story...Reprinted courtesy of
William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
Colorado’s New Construction Defect Law Takes Effect in September: What You Need to Know
November 21, 2017 —
Jesse Witt - The Witt Law FirmOriginally published by CDJ on September 7, 2017
Colorado’s new construction defect law officially takes effect this month. Although HB 17-1279 was passed in May, the statutory text provides that it only applies “with respect to events and circumstances occurring on or after September 1, 2017.” With that date now upon us, practitioners should be mindful of the law’s new requirements.
The law applies to any lawsuit wherein a homeowner association files a construction defect action on behalf of two or more of its members. “Construction defect action” is defined broadly to include any claims against construction professionals relating to deficiencies in design or construction of real property. Before an association may commence such an action, its board must follow several steps.
First, the board must deliver notice of the potential construction defect action to all homeowners and the affected construction professionals at their last known addresses. This requirement does not apply to construction professionals identified after the notice has been mailed, or to construction professionals joined in a previously-approved lawsuit. The notice must include a description of the alleged construction defects with reasonable specificity, the relief sought, a good-faith estimate of the benefits and risks involved, and a list of mandatory disclosures concerning assessments, attorney fees, and the marketability of units affected by construction defects. The notice must also call a meeting of all homeowners. The notice should be sent to the construction professionals at least five days before the homeowners.
Reprinted courtesy of
Jesse Howard Witt, Acerbic Witt
Mr. Witt may be contacted at www.witt.law
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
Effective Strategies for Reinforcing Safety Into Evolving Design Standards
July 02, 2024 —
Ethan Harris - Construction ExecutiveFrom design/build condos to built-to-suit warehouses, one factor remains the highest priority regardless of the project type—the approach to upholding the highest level of safety. Safety exists as a core value across all areas of the construction industry, but the increased risk of serious injuries or fatalities persists. Ranked fourth on the United States Bureau of Labor Statistics’ list of occupations with the most fatality rates, construction workers put their lives in danger each time they step onto the jobsite.
Considering this risk, it’s important for every team member—from subcontractors to superintendents—to take responsibility for safety compliance, empowering their workforce to take ownership of their own actions and hold others accountable for theirs. To help enhance safety efforts from start to completion, safety leaders are focusing on ways to implement safety standards within each component of a building’s design. Although this approach requires more comprehensive planning and strategizing on the front end, it is intended to reduce and mitigate hazards before they become larger issues. Keeping this idea in mind, here are a few actionable methods for managing projects designed around safety compliance.
ASSESS FIRST
No two jobsites are the same. From crowded pedestrian walkways to dangerous existing infrastructure, each project requires specific layouts, materials and processes to be fully functional both during and after construction. Given the unique nature of each site, a detailed risk assessment must be conducted before any other design and/or building activities begin. During this initial assessment, careful consideration should be placed on the overall flow as it relates to the people, processes and equipment located on or near the construction site.
Reprinted courtesy of
Ethan Harris, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
