Las Vegas Student Housing Developer Will Name Replacement Contractor
February 15, 2018 —
John Guzzon – ENRMore than four months after construction abruptly stopped on a $76-million student housing project for the University of Nevada at Las Vegas, the developer is seeking a new contractor.
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John Guzzon, Engineering News- RecordMr. Guzzon may be contacted at
ENRSouthWestEditor@enr.com
If Passed, New Bill AB 2320 Will Mandate Cyber Insurance For State Government Contractors
September 07, 2020 —
Makenna Miller & Jeffrey Dennis - Newmeyer DillionEarlier this year, Assemblyman Edwin Chau (D-Monterey Park) introduced Assembly Bill 2320. AB 2320, if passed, would require any business that contracts with the state and has access to records containing personal information protected under the state’s Information Practices Act (IPA) to maintain cyber insurance coverage. Information covered under the IPA includes names, social security numbers, physical descriptions, home addresses, home telephone numbers, education, financial matters, and medical or employment history. Requiring contractors to maintain cyber insurance will likely both shift the costs of cyberattacks from taxpayers to the private sector, while also encouraging robust cyber security practices among businesses of all sizes. While the bill has not yet passed, businesses will be best served by implementing and improving cybersecurity practices now in order to attain lowest premium rates in the future.
Incentivizing Best Practices
With the adoption of AB 2320, businesses will be incentivized to increase their security posture in order to receive lower premiums from insurers. Simultaneously, insurers will be incentivized to mandate best practices from their insureds in order to mitigate their risk of having to pay out on cyber insurance policies. Thus, cyber insurance will work as a vehicle to increase best practices in businesses and subsequently decrease vulnerabilities to cyberattacks.
Reprinted courtesy of
Makenna Miller, Newmeyer Dillion and
Jeffrey Dennis, Newmeyer Dillion
Ms. Miller may be contacted at makenna.miller@ndlf.com
Mr. Dennis may be contacted at jeff.dennis@ndlf.com
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Changing Course Midstream Did Not Work in River Dredging Project
December 10, 2015 —
Craig Martin – Construction Contractor AdvisorA contractor learned a $12M lesson when it tried to change course on a Corps of Engineer river dredging project. The case also illustrates the importance of documenting problems on a project and providing notice of those problems to the owner.
In Weston/Bean Joint Venture v U.S., Weston/Bean was awarded a Corps of Engineers project to provide maintenance dredging on the Miami River to a depth of 15 feet. The contract noted that the contractor may experience sediment, debris and rock, including soft to moderately hard limestone.
The contractor encountered rocks early on in the project, but consistently submitted reports to the Corps of Engineers that nothing was experienced on the project that would lead to a change order or claim. And, for the first year of operations, the contractor made no claim for differing site conditions. Instead, the contractor terminated the subcontractor for not being able to process the rock uncovered during the dredging process.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
BOOK CLUB SERIES: Everything You Want to Know About Construction Arbitration But Were Afraid to Ask
October 30, 2023 —
Marissa L. Downs - The Dispute ResolverI recently had the pleasure of speaking with construction law notables John Foust and Andy Ness to discuss the release of their new book—
Construction Arbitration: The Advocate’s Practical Guide. The goal of their book: to teach attorneys what they need to know to maximize their effectiveness in the arbitration context. To that end, the book covers every aspect of the arbitration process including motion practice, conduct as an advocate, presentation of the case, and post-hearing submissions. Read on for Andy and John’s candid, behind-the-scenes take on how this book came to be and why you should get your copy now, while supplies last!
Q: Who is the target audience for this book?
Andy: In the editing process (and in writing my own chapter on Navigating an International Construction Arbitration) I pretended that I was speaking with a construction lawyer who was a few years out of law school, with some litigation experience, who was getting ready to take on a significant and complex construction arbitration for the first time. The book presupposes knowledge of the basics and tries to anticipate the questions that would be asked when you are trying to think through the whole arbitration process from start to finish. What should my pleadings look like? How much discovery am I likely to be able to obtain? How should my demeanor be different from what I would do in a courtroom? How much should I object during the hearing? In a nutshell, it’s “What do I need to know to maximize my chances of success in the arbitration setting?”
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Marissa L. Downs, Laurie & Brennan, LLPMs. Downs may be contacted at
mdowns@lauriebrennan.com
Serving Notice of Nonpayment Under Miller Act
January 20, 2020 —
David Adelstein - Florida Construction Legal UpdatesUnder the federal Miller Act, if a claimant is NOT in privity with the prime contractor, it needs to serve a “notice of nonpayment” within 90 days of its final furnishing. In this manner, 40 U.S.C. 3133 (b)(2) states:
A person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing the payment bond may bring a civil action on the payment bond on giving written notice to the contractor within 90 days from the date on which the person did or performed the last of the labor or furnished or supplied the last of the material for which the claim is made. The action must state with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. The notice shall be served–
(A) by any means that provides written, third-party verification of delivery to the contractor at any place the contractor maintains an office or conducts business or at the contractor’s residence; or
(B) in any manner in which the United States marshal of the district in which the public improvement is situated by law may serve summons.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Keep it Simple with Nunn-Agreements in Colorado
June 28, 2021 —
Jean Meyer - Colorado Construction LitigationOn May 24, 2021, the Colorado Supreme Court published its decision in Auto-Owners Ins. Co. v. Bolt Factory Lofts Owners Ass'n.[1] There, the Colorado Supreme Court was tasked with answering whether an insurer, who is defending its insured under a reservation of rights, is entitled to intervene as of right under C.R.C.P. 24(a)(2) where the insured enters into a Nunn agreement with a third-party claimant, but rather than entering into a stipulated judgment, agrees with the third party to proceed via an uncontested trial to determine liability and damages. Interestingly, however, while the Court ultimately answered the above question in the negative, the real lesson from the Colorado Supreme Court’s decision is that Colorado litigants should not seek a trial court’s blessing as to liability and damages through non-adversarial proceedings when using Nunn-Agreements. Or, as articulated in Justice Carlos Samour’s vociferous dissenting opinion, Colorado litigants desiring to enter into a Nunn-Agreement should not proceed with a non-adversarial hearing, as doing so is “offensive to the dignity of the courts,” constitutes a “bogus,” “faux,” “sham” and “counterfeit” proceeding, and the hearing provides “zero benefit.”
By way of background, the case arrived in front of the Colorado Supreme Court based on the following fact pattern. A homeowner association (Bolt Factory Lofts Owners Association, Inc.) (“Association”) brought construction defect claims against a variety of prime contractors and those contractors subsequently brought third-party construction defect claims against subcontractors. One of the prime contractors assigned their claims against a subcontractor by the name Sierra Glass Co., Inc. (“Sierra”) to the Association. The other claims between the additional parties settled. On the eve of trial involving only the Association’s assigned claims against Sierra, the Association made a settlement demand to Sierra for $1.9 million. Sierra asked its insurance carrier, Auto-Owners Insurance, Co. (“AOIC”), which had been defending Sierra under a reservation of rights letter, to settle the case for that amount, but AOIC refused. This prompted Sierra to enter into a “Nunn-Agreement” with the Association whereby the case would proceed to trial, Sierra would refrain from offering a defense at trial, the Association would not pursue any recovery against Sierra for the judgment, and Sierra would assign any insurance bad faith claims it may have had against AOIC to the Association.
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Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLCMr. Meyer may be contacted at
meyer@hhmrlaw.com
California Statutes Authorizing Public-Private Partnership Contracting
February 01, 2022 —
Robert A. James & Shade Oladetimi - Gravel2Gavel Construction & Real Estate Law BlogPublic-private partnerships are often cited as a key pathway to restoring and enhancing the nation’s infrastructure. They can be challenging arrangements to structure. (As a result of the pandemic, they have even suffered the indignity of having their “PPP” acronym coopted by the
Paycheck Protection Program. With apologies to Small Business Administration practitioners, we use “PPP” in this article to refer to the infrastructure tool.)
One gating condition to setting up a PPP is identifying the authority for a public entity to use a contracting method that does not run afoul of the general requirements that (i) works of improvement be let to the lowest responsive bid by a responsible bidder and (ii) design services be awarded through a qualifications-based selection process. Integrated forms of project delivery that vest in a single concessionaire multiple design, construction, financing, operation, maintenance and entrepreneurial roles must find an exception to any applicable background rules.
Reprinted courtesy of
Robert A. James, Pillsbury and
Shade Oladetimi, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Ms. Oladetimi may be contacted at shade.oladetimi@pillsburylaw.com
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Settling with Some, But Not All, of the Defendants in a Construction Defect Case
March 28, 2018 —
David Adelstein – Florida Construction Legal UpdatesConstruction defect lawsuits can be complex multi-party disputes, especially when the plaintiff is doing what is necessary to maximize recovery. This means the plaintiff may sue multiple defendants associated with the defects and damage. For example, the owner (e.g., plaintiff) may sue the contractor, subcontractors, design professionals, etc. due to the magnitude of the damages. In many instances, the plaintiff is suing multiple defendants for overlapping damages. The law prohibits a plaintiff from double-recovering for the same damages prohibiting the windfall of a plaintiff recovering twice for the same damages. Perhaps this sentiment is straight common sense, but this sentiment is a very important consideration when it comes to settling with one or more of the defendants, while potentially trying the construction defect case as to remaining defendants.
Analysis and strategy is involved when settling with some but not all of the defendants in a construction defect case (and, really, for any type of case). Time must be devoted to crafting specific language in the settlement agreements to deal with this issue. Otherwise, the settlement(s) could be
set-off from the damage awarded against the remaining defendants.
The recent decision in
Addison Construction Corp. v. Vecellio, 43 Fla.L.Weekly D625(a) (Fla. 4th DCA 2018) details the analysis and strategy required when settling with some but not all of the defendants in a construction defect case, and the concern associated with a trial court setting-off the settlement amount from the damage awarded against the remaining defendants.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
Dadelstein@gmail.com
