Superintendent’s On-Site Supervision Compensable as Labor Under Miller Act
March 13, 2023 —
David Adelstein - Florida Construction Legal UpdatesA recent Miller Act payment bond decision out of the District of Columbia Circuit Court of Appeals, U.S. f/u/b/o Civil Construction, LLC v. Hirani Engineering & Land Surveying, PC, 58 F.4th 1250 (D.C. Circ. 2023), dealt with the issue of whether a subcontractor’s superintendent constitutes recoverable “labor” within the meaning of the Miller Act and compensable as a cost under the Miller Act that typically views labor as on-site physical labor.
The issue is that the Miller Act covers “[e]very person that has furnished labor or material in carrying out work provided for in a contract.” Civil Construction, supra, at 1253 quoting 40 U.S.C. s. 3133(b)(1). The Miller Act does not define labor. The subcontractor claimed labor includes actual superintending at the job site. The surety disagreed that a superintendent’s presence on a job site constitutes labor as the superintendent has to actually perform physical labor on the job site to constitute compensable labor under the Miller Act.
The subcontractor argued its subcontract and the government’s quality control standards required detailed daily reports that verified manpower, equipment, and work performed at the job site. It further claimed its superintendent had to continuously supervise and inspect construction activities on-site: “[the] superintendent had to be on-site to account for, among other things, hours worked by crew members, usage and standby hours for each piece of equipment, materials delivered, weather throughout the day, and all work performed. These on-site responsibilities reflected the government’s quality control standards, under which the superintendent as ‘the most senior site manager at the project, is responsible for the overall construction activities at the site…includ[ing] all quality, workmanship, and production of crews and equipment.” Civil Construction, supra, at 1253-54.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
It's a Wrap! Enforcing Online Agreements in Light of the CPRA
March 08, 2021 —
Kyle Janecek – Newmeyer DillionWe're all familiar with it at this point. A popup comes up on your device informing you of a change to terms and conditions, or otherwise asking for permission. For those operating websites, they know that this inconvenience is required to comply with various legal requirements. What they may not be aware of yet, is that these requirements, and popups, are about to become much, much, more prevalent. Recently, the California Privacy Rights Act ("CPRA"), passed by the voters of the State of California, includes new language specifying how consent is supposed to be obtained for the collection of personal information, amending the California Consumer Privacy Act ("CCPA"). This new manner of consent rules out browsewrap agreements, and would require that popups increase as website operators shift focus to clickwrap agreements, if they have not already.
Browsewrap and Clickwrap
Typically, online agreements comprising Terms of Service or a Privacy Policy can be broken into either (a) browsewrap agreements - agreements that imply assent or agreement to online terms by the mere act of using a website or an online service after a clear and conspicuous notice that terms exist or (b) clickwrap agreements - agreements that show assent or agreement to online terms by having an individual click or otherwise agree to. While the best option to ensure enforceability is always the one that leaves the most documented signs of assenting to terms (i.e. a clickwrap agreement), both are typically recognized and enforced under California law. The practical effect of this is that to get consent, all that is technically needed is either to (a) show actual consent by having the person click on an "I agree" button, or (b) provide that the website visitor had ample notice that terms existed.
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Kyle Janecek, Newmeyer DillionMr. Janecek may be contacted at
kyle.janecek@ndlf.com
Gibbs Giden is Pleased to Announce Four New Partners and Two New Associates
January 08, 2024 —
Gibbs Giden Locher Turner Senet & Wittbrodt, LLPWe take great pleasure in announcing that
Richard Marks and
Kyle Marks have joined the firm. They bring a combined 60 years of real property law experience to Gibbs Giden. Well known Title Insurance and seasoned real estate attorneys they have both served as chair of the Title Insurance Subsection of the Los Angeles County Bar Association and are adjunct professors at Southwestern University School of Law. We are excited to welcome these two exceptional partners and their commitment to representing clients with honesty, integrity, and excellence. You can find them in our firm’s Westlake office.
Talented attorneys
Samantha Riggen and
Christopher Trembley have been named partners. Samantha represents clients in all areas of business and commercial matters with an emphasis on construction litigation on both public and private projects. Christopher’s practice also focuses on construction litigation on behalf of a wide spectrum of industry-stakeholder clients, including suppliers, contractors, and owners. Both work in our firm’s Westlake Village office.
We are also pleased to announce we’ve hired two new associates.
Sarah La Mendola and
Madison Wedderspoon. Sarah has developed an expertise in a wide range of real estate, business, and corporate matters. She received her JD from the University of Pavia, one of the top universities in Italy, in 2012 and her LLM from UCLA in 2015. You can find Sarah in our Westlake Village office. Madison recently graduated from the Boyd School of Law cum laude, is based in our Las Vegas office and works in the areas of business law, contracts, healthcare law, construction, real estate, and common interest community transactional and litigation work.
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Gibbs Giden
Insurance for Defective Construction Now in Third Edition
November 07, 2012 —
CDJ STAFFAvailable both in print and online, the International Risk Management Institute, Inc has brought out a third edition of Insurance for Defective Construction. The work is written by Patrick J. Wielinski of Cokinos, Bosien & Young, a Dallas-Fort Worth law firm. Mr. Wielinski practice focuses on insurance coverage. Insurance for Defective Construction is described as “a must read for anyone who buys, sell, or underwrites construction insurance or who becomes involved in construction claims.”
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Spreading Cracks On FIU Bridge Failed to Alarm Project Team
May 20, 2019 —
Scott Judy & Richard Korman - Engineering News-RecordOn the morning of last year’s Florida International University pedestrian bridge collapse, when the engineer of record assured project team members that there were no safety risks related to cracks propagating across a part of the unusual single-truss structure, other project team members voiced mild concern, but no alarm. In hindsight, considering that the bridge had no inherent structural redundancy as it sat, incomplete, straddling a busy highway—and would suffer a sudden, catastrophic and deadly collapse just hours later—the team’s lack of urgency remains puzzling, say engineering experts contacted by ENR for comment.
Reprinted courtesy of
Scott Judy, ENR and
Richard Korman, ENR
Mr. Judy may be contacted at mailto:judys@enr.com
Mr. Korman may be contacted at kormanr@enr.com
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Government’s Termination of Contractor for Default for Failure-To-Make Progress
July 10, 2023 —
David Adelstein - Florida Construction Legal UpdatesWhenever you elect to terminate the other party for cause or for default, you need to JUSTIFY the basis of the cause or default. The reason being is that a termination for default or cause is the harshest contractual remedy. This is why the other party will typically either (i) convert the termination for default into one for convenience, or (ii) if there is no termination for convenience provision in the contract, argue the terminating party breached the contract by terminating the contract without rightful justification.
The key is if you are going to terminate a party for cause of default, make sure you have memorialized the persuasive reasons for exercising the termination, and can otherwise reasonably support the justification. Do not, and I repeat, do not haphazardly exercise a termination for default and think you do not have to justify the basis for the termination.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Supply Chain Delay Recommendations
August 07, 2022 —
Denise Motta - Gordon & Rees Construction Law BlogThis Bulletin provides guidance to contractors, subcontractors, suppliers, and others to ensure compliance with contractual change order requirements in the event work on a construction project is impacted by supply chain delays.
Contract Protection Tips:
The construction industry is being impacted substantially by inability to obtain necessary construction products due to supply chain issues. Most construction contracts do not accommodate time extensions due to supply chain impacts. To address this gap in contract terms, we recommend including language such as: “lack of or failure of or other inability to obtain necessary transportation, fuel, power, materials, machinery, equipment or facilities, delays caused by other contractors, subcontractors or their subcontractors of any tier, or any materialmen or suppliers” as part of the defined force majeure event under the contract.
This provision can be included in the Change Order section of the contract as well by including a provision such as: “If the Work is delayed by the failure of or other inability to obtain necessary transportation, fuel, power, materials, machinery, equipment or facilities, delays caused by other contractors, subcontractors or their subcontractors of any tier, or any materialmen or suppliers, contractor shall be entitled to a change order for its costs and time associated with the delay.”
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Denise Motta, Gordon Rees Scully Mansukhani, LLPMs. Motta may be contacted at
dmotta@grsm.com
Court Voids Settlement Agreement in Construction Defect Case
September 01, 2011 —
CDJ STAFFA U.S. District Court Judge in Florida has ruled in favor of a company that sought to void a settlement agreement. The case, Water v. HDR Engineering, involved claims of construction defects at Florida’s C.W. Bill Young Regional Reservoir. The Tampa Bay Water Authority attributed these to both HDR Engineering’s design and Bernard Construction Company which had built the embankment. Bernard Construction filed a complaint against their subcontractor, McDonald.
Tampa Bay Water settled with Bernard Construction and McDonald, in an agreement that set a minimum and maximum settlement, but also would “prohibit Barnard and McDonald from presenting any evidence on several claims and positions of TBW, to require Barnard to call certain witnesses at trial, to preclude Barnard and McDonald from calling other witnesses, and to restrict the filing of trial and post-trial motions.” HDR Engineering moved to void the agreement as collusive.
The judge that the agreement¬? contained “133 paragraphs of ‘Agreed Facts’ that the parties stipulated would survive any order declaring the Settlement Agreement void or unenforceable.” He characterized these as stipulating “that Barnard neither caused nor contributed to TBW’s damages.” HDR motioned that a summary judgment be given to Barnard Engineering.
The court found that “the evidence identified by TBW is patently insufficient to survive summary judgment.” Further, TBW’s expert initially held Barnard responsible for “lenses, pockets, streaks and layers within the embankment,” but then later withdrew this assigning the responsibility to HDR. Further, the court notes that, “TBW’s arguments that lenses, pockets, streaks, and layers in the soil wedge caused or contributed to its damages and that Barnard is liable for those damages have been foreclosed by the Agreed Facts.”
As TBW failed to provide sufficient evidence to withstand summary judgment, the court granted summary judgment, mooted the claim against McDonald, and terminated the agreement between TBW and the other parties.
Read the court’s decision…
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