City Development with Interactive 3D Models
October 23, 2018 —
Aarni Heiskanen - AEC BusinessThe Finnish city of Hyvinkää has developed a unique internet service for collaborative 3D city planning. It gives real estate owners, investors, developers, designers, authorities, and citizens easy-to-use tools to publish their 3D plans and ideas for the built city environment.
Participants can comment on the 3D plans directly in the city model. The 3D app is integrated with Facebook, which enables further conversation.
Building the 3D City Model
Päivi Tiihonen is the manager of the information services unit of the city’s technical and environmental sector. The city started building a browser-based 3D city model when Tiihonen assumed her position in 2014.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Consequential Damage Claims for Insurer's Bad Faith Dismissed
April 22, 2019 —
Tred R. Eyerly - Insurance Law HawaiiPartial dismissal of the insured's complaint seeking consequential damages for the insurer's bad faith was granted by the court. Bryant v. General Cas. Co., 2019 U.S. Dist. LEXIS 15369 (N.D. N.Y. Jan. 30, 2019).
Bryant purchased from General Casualty Company of Wisconsin (GCCW) a commercial property and casualty policy to cover the insured premises. While the building was rented to a tenant who operated a restaurant, it sustained a collapse. GCCW refused to cover the loss. Bryant sued. In addition to the cost of repairing and replacing the damage to the property, Bryant alleged he was out the value of rental revenue from his tenant, which was forced to close the restaurant and relocated as a result of the unrepaired damage.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Navigating Abandonment of a Construction Project
March 02, 2020 —
Bremer Whyte Brown & O’MearaNo construction or real estate developments goes completely as planned. Despite the expectation that modifications will likely be necessary to finalize a project, far too many parties suffer losses related to these projects.
In California, abandonment of a project without legal excuse gives rise to a legal claim. An abandonment occurs if there was a material failure to complete any construction project or operation for the price stated in the contract or in any modification of the contact. If abandonment occurs, litigation likely follows.
Disputes most commonly arise when the parties fail to retain a paper trail. Therefore, to limit litigation, document everything. Change orders can offer protection, but they must be in writing. Handshakes or oral promises are not sufficient. Rather, obtain written agreements signed by the contractor, and retain all documentation provided by the contractor, including invoices, receipts, work estimates and change orders.
If the construction project has been abandoned, take photographs and/or videos of the job as it appears. To mitigate damages, preserve any leftover materials that a new contractor may be able to use.
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Bremer Whyte Brown & O’Meara
“Since You Asked. . .”
October 15, 2024 —
Daniel Lund III - Lexology… you must now pay.
So said a California appellate court, affirming the trial court’s decision against a subcontractor suing for unpaid subcontract sums. Instead of being awarded those unpaid amounts, the subcontractor lost the case and was tagged with a $1.55 million attorney’s fees award and $270,000 costs award in favor of the defendants.
What went wrong?
California law requires a licensed contractor to maintain at all times proper workers’ compensation insurance coverage. The failure to maintain the coverage and have the certificate of coverage on file with the California Contractors State License Board results in “automatic and immediate suspension” of the contractor license. Retroactive reinstatement of the license may occur only if the contractor provides proof of the insurance within 90 days of the effective date of the insurance certificate – unless the contractor can show that failure to have the certificate on file was “due to circumstances beyond the control of the licensee.”
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Homebuilders See Record Bearish Bets on Shaky Recovery
June 18, 2014 —
Callie Bost – BloombergSomeone thinks the housing rebound is built on shaky foundations.
A record 180,000 puts traded on the SPDR S&P Homebuilders (XHB) exchange-traded fund on June 11, according to data compiled by Bloomberg. The contract with the highest ownership pays off in the event of a 20 percent slump by December in the ETF tracking stocks from DR Horton Inc. to Williams-Sonoma Inc.
Prospects for rising interest rates and an uneven recovery in the housing market have hurt returns this year, sending the SPDR Homebuilders ETF down 3.3 percent. While economic data yesterday showed that builders broke ground on 1 million U.S. homes in May, permits, a proxy for future construction, decreased because of fewer applications for condominiums and apartment buildings.
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Ms. Bost may be contacted at
cbost2@bloomberg.net
Corps Releases Final Report on $29B Texas Gulf Coast Hurricane Defense Plan
October 11, 2021 —
James Leggate - Engineering News-RecordA $28.87 billion plan to protect the Texas Gulf Coast’s residents and infrastructure against hurricanes and storm surge with a series of coastal storm risk management and ecosystem restoration projects took a step closer to reality Sept. 10 with the release of a final feasibility report and final environmental impact statement from the U.S. Army Corps of Engineers and Texas General Land Office (GLO).
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James Leggate, Engineering News-Record
Mr. Leggate may be contacted at https://www.enr.com/leggatej@enr.com
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Maximizing Contractual Indemnity Rights: Components of an Effective Provision
December 02, 2015 —
William Kennedy – White and Williams LLPTort law is aimed at providing compensation to the victims of negligence. Tort law encourages plaintiffs to cast a wide net, pursuing claims or suits against not only those whose fault seems manifestly primary, but also against defendants whose causal exposure is minimal, against those whose exposure is purely by operation of law. As discussed in the first installment of this series, "Maximizing Contractual Indemnity: Problems with Common Law," three common law principles – vicarious liability, joint and several liability, and common law indemnity – cause some parties to pay in excess of their actual degree of causal fault. Contractual indemnity can remedy that harsh result.
Part Two: Components of an Effective Provision
Properly composed, “broad form” contractual indemnity provisions permit an Indemnitee to shift the full range of financial consequences from tort exposure, including civil damages, defense fees, expert fees, and litigation expenses. Such contracts permit indemnity even where the underlying damage was incurred due to a degree of negligence or fault on the part of the Indemnitee. Such contracts can also allow an Indemnitee to shift to the Indemnitor the risk of loss for someone from whom the Indemnitor would otherwise be immune from suit (e.g., the Indemnitor’s employees). A well-written contract can even convert an entity which is an Indemnitor as to one party (e.g., a general contractor which has to indemnify a property owner) into an Indemnitee as to another party (e.g., a subcontractor) for the very same risk.
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William Kennedy, White and Williams LLPMr. Kennedy may be contacted at
kennedyw@whiteandwilliams.com
How AB5 has Changed the Employment Landscape
March 16, 2020 —
Jason Morris – Newmeyer DillionAs a result of California's Assembly Bill 5, effective January 1, 2020, the California Supreme Court's ABC test is now the standard for evaluating independent contractor classifications for purposes of the Industrial Welfare Commission Wage Orders, California Labor Code, and the California Unemployment Insurance Code. That dramatically ups the ante for companies that rely on independent contractors, particularly those that have not re-evaluated such classifications under the ABC test.
Misclassification cases can be devastating, especially for misclassified non-exempt employees, and can result in minimum wage violations, missed meal and rest periods, unpaid overtime, unreimbursed business expenses, record-keeping violations, steep penalties, attorneys' fees, and even criminal liability, among other consequences. Misclassifying workers creates enormous risks for companies and is fertile ground for class actions and representative actions under the Private Attorneys General Act (PAGA).
The Costs Of Misclassification Are Expensive, And Hope Is Not A Strategy
Many business owners I speak to understand AB5 has caused the ground to shift beneath their feet and recognize the resulting risks of misclassifying workers. Despite these risks, companies often balk at taking the necessary steps to evaluate their classifications and mitigate the risk of an adverse classification finding.
The most common reason I hear from resistant companies is the worker does not want to be reclassified as an employee and the company trusts the worker ("I've worked with her for years; she won't sue me because she wants to be a contractor"). I get it. Making the change from contractor to employee results in less flexibility and greater administrative burden for everyone involved. While I'm sympathetic, the government is not. Reluctance to change while acknowledging the associated risks amounts to a strategy based on hope. As we say in the Marine Corps, however, "hope is not a strategy."
Aside from the sometimes foolhardy belief that a misclassified worker can be trusted to not file suit after a business breakup (when the deposits stop and mortgage bill comes due, guess who's a prime target), companies often fail to recognize the numerous ways in which their classification decisions can be challenged even when they are in agreement with their (misclassified) contractors. Here are just three examples of how your classifications can be scrutinized despite the lack of a challenge by the worker:
- Auto Accidents: Whether delivering products, making sales calls, or traveling between job sites, independent contractors often perform work that requires driving. Of course, sometimes drivers are involved in automobile accidents. When accidents happen, insurance companies step in and look for sources of money to fund claims, attorneys' fees, costs, and settlements. One potential source is your insurance. "But the driver isn't my employee!," you say. You better buckle up because the other motorist's insurance carrier is about to challenge your classification in an attempt to access your insurance policies.
- EDD Audits: During the course of the last several years, the California Employment Development Department (EDD) has increased the number of verification (random) audits it performs in search of additional tax revenue. One reason government agencies prefer hiring entities classifying workers as employees rather than independent contractors is it's a more efficient tax collection method; employers collect employees' taxes on the government's behalf, which increases collection rates and reduces government collection costs. The consequences of misclassification include pricey fines, penalties, and interest.
- Unemployment Insurance, Workers' Compensation, and Disability Claims: In addition to verification audits, the EDD performs request (targeted) audits. Targeted audits may result when a contractor files an unemployment insurance, workers' compensation, or disability claim because independent contractors are ineligible for such benefits. Request audits, like verification audits, can result in costly fines, penalties, and interest if the EDD concludes you have misclassified your workers. Even so, that may not be the worst of it: the EDD often shares its findings with the Internal Revenue Service.
Your Action Plan
AB5 has changed the measuring stick, misclassification costs are high, and you do not have complete control of when the government or others can challenge your classifications. So what can you do? Here are several steps all prudent companies should take if they are using independent contractors:
- Conduct an audit of current classification practices;
- Review written independent contractor agreements;
- Implement written independent contractor agreements;
- Update workplace policies;
- Update organizational charts;
- Reclassify independent contractors as employees if necessary.
Jason Morris is a partner in the Newport Beach office of Newmeyer Dillion. Jason's practice concentrates on the areas of labor and employment and business litigation. He advises employers and business owners in employment litigation, as well as advice and counsel related to employment policies and investigations. You can reach him at jason.morris@ndlf.com.
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.
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