July 1, 2015 Statutory Changes Affecting Virginia Contractors and Subcontractors
June 10, 2015 —
Christopher G. Hill – Construction Law MusingsAs always seems to be the case, this year, as in others, the Virginia General Assembly has seen fit to “tweak” a few construction related statutes. All of these changes will go into effect on July 1, 2015.
The big one, and one that I posted about a while back is the change to the Virginia mechanic’s lien statute to prohibit contractual waiver of lien, payment bond or claims for additional costs prior to the furnishing of labor or materials. This one is big because it relieves a bit of the angst in the pre-contract negotiations between subcontractors and general contractors.
Another significant change, this one to the wording of Virginia Code 2.2-4309, found in House Bill 1628, clarifies the fact that this Virginia statute does not limit the amount a government contractor may claim or recover against a public body under a contract dispute. This is a big one considering the ruling in the Carnell Construction Corp. v. Danville Redevelopment Housing Authority LLC limiting such claims.
Read the court decisionRead the full story...Reprinted courtesy of
Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
California Court Forces Insurer to Play Ball in COVID-19 Insurance Coverage Suit
December 13, 2022 —
Latosha M. Ellis & Yosef Itkin - Hunton Insurance Recovery BlogOne of the threshold issues in COVID-19 insurance coverage cases that have been brought across the country is whether the policyholder’s allegations meet the applicable pleading standard in alleging that the virus caused physical loss or damage. In many cases, the courts have gotten it wrong, effectively holding policyholders to a higher standard than required. But recently, a California federal judge righted those wrongs by acknowledging the correct pleading standard in that case, which is whether the allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court, here, correctly recognized that the policyholder, the Los Angeles Lakers, met that pleading standard when it alleged that the COVID-19 virus can cause physical loss or damage by physically altering property.
In its complaint, the Los Angeles Lakers alleged that the virus physically altered its property by changing its chemical and physical property conditions, creating viral vectors that required remedial measures before the property was safe again. Los Angeles Lakers, Inc. v. Fed. Ins. Co., 591 F. Supp. 3d 672 (C.D. Cal. 2022), adhered to on reconsideration, 2022 WL 16571193 (C.D. Cal. Oct. 26, 2022). The Court agreed that these allegations by the Lakers adequately pled physical alteration to support a claim for property damage. The insurer requested reconsideration of the decision, and the Court emphatically affirmed its prior decision, explaining its rationale as follows:
The Court lacks the scientific expertise necessary to conclude, based solely on the allegations in the FAC . . . that it is not plausible for the Lakers’ property to have been physically altered by the Virus, which the Lakers adequately alleged. Consequently, the Court, in the March 17 Order, concluded that the Lakers’ theory was plausible. Whether the Lakers can actually prove its theory will be determined at summary judgment or trial.
Reprinted courtesy of
Latosha M. Ellis, Hunton Andrews Kurth and
Yosef Itkin, Hunton Andrews Kurth
Ms. Ellis may be contacted at lellis@HuntonAK.com
Mr. Itkin may be contacted at yitkin@HuntonAK.com
Read the court decisionRead the full story...Reprinted courtesy of
New OSHA Vaccination Requirements For Employers With 100 Or More Employees (And Additional Advice for California Employers)
November 19, 2021 —
Laura Fleming & Rana Ayazi - Payne & FearsUpdate 11.8.21: On Nov. 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a stay of the OSHA ETS, stating that the OSHA ETS may have “grave statutory and constitutional issues.” The stay is not a final ruling on the validity of the ETS but temporarily halts its implementation nationwide. OSHA has until Nov. 8, 2021 at 5:00 PM to respond and the petitioners have until Nov. 9, 2021 at 5:00 PM to reply to OSHA’s response. The Fifth Circuit will then issue its ruling likely late this week or early next week.
On Sept. 9, 2021, President Joe Biden announced his COVID-19 Action Plan. The Action Plan called on the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
On Nov. 4, 2021, OSHA released the rule in the form of an Emergency Temporary Standards (“OSHA ETS”). Here are ten things you need to know about the OSHA ETS:
- How To Count To 100: (1) The applicable number is the total number of employees employed on November 5, 2021—this is the headcount that will be used for the duration of the OSHA ETS. (2) The count must be done at the employer level not the individual location level. (3) Part-time employees do count towards the total number of employees. (4) Employees who work from home do count towards the total number of employees. (5) Independent contractors do not count towards the total number of employee.
Reprinted courtesy of
Laura Fleming, Payne & Fears and
Rana Ayazi, Payne & Fears
Ms. Fleming may be contacted at lf@paynefears.com
Ms. Ayazi may be contacted at ra@paynefears.com
Read the court decisionRead the full story...Reprinted courtesy of
Clearly Determining in Contract Who Determines Arbitrability of Dispute
April 26, 2021 —
David Adelstein - Florida Construction Legal UpdatesAs you know from prior postings: “Arbitration provisions are creatures of contract and must be construed ‘as a matter of contract interpretation.’ ” Fallang Family Limited Partnership v. Privcap Companies, LLC, 46 Fla.L.Weekly D639e (Fla. 4th DCA 2021) (citation omitted). Thus, if you prefer to arbitrate potential disputes, instead of litigating potential disputes, you want to include an arbitration provision in your contract. While there are positives and negatives to arbitration, no different than litigation, these positives and negatives should be considered during the contract negotiation process when dealing with the dispute resolution process in the contract.
Generally, under the law, the arbitrability of a dispute is determined by the court. However, this can be deferred to the arbitrator with clear and unmistakable language in the contract.
By way of example, the American Arbitration Association includes a rule that allows an arbitrator to rule on the arbitrability of the dispute, i.e., the claims asserted are subject to the governing arbitration provision in the contract. Recent law has suggested that if the objective is to authorize an American Arbitration Association arbitrator to make this determination, the contract clearly and unmistakably needs to state this intent and generally referring to the American Arbitration Association rules is not good enough. For this reason, I have included in arbitration provisions language that specifically states, “In the event of any dispute as to the arbitrability of any claim or dispute, the parties agree that an appointed arbitrator within the American Arbitration Association shall make this determination.” I have also included in arbitration provisions the converse so that if there is a dispute as to the arbitrability of a claim or dispute, the court, and not the arbitrator, will make this determination.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
No Coverage for Repairs Made Before Suit Filed
August 22, 2022 —
Tred R. Eyerly - Insurance Law HawaiiAfter a hurricane damaged the building the insured was constructing, there was no coverage under the CGL policy for repairs the insured made in the absence of a suit being filed. Planet Construction J2911 LLC. v. Gemini Ins. Co., 2022 U.S. Dist. LEXIS 105468 (W.D. La. June 13, 2022).
Planet Construction was a general contractor hired to build a fitness club. On August 27, 2020, Hurricane Laura struck the area. After the storm, a pipe in the sprinkler system broke, allegedly due to faulty materials and workmanship by a subcontractor, S&S Sprinkler. Planet Construction sought coverage under its policy with Gemini as well as under S&S's policy with Zurich. Both insurers denied coverage and Planet Construction filed suit.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Construction Defects Survey Results Show that Warranty Laws Should be Strengthened for Homeowners & Condominium Associations
March 29, 2017 —
Nicholas D. Cowie - Maryland Condo Construction Defect Law BlogThe Community Associations Institute (“CAI”) recently partnered with its members and industry stakeholders to create a survey about construction deficiencies to learn how they impact homeowners and condominium associations.
Click here to view the Construction Defects Report containing the details of the responses to the survey.
Click here to see a video presentation summarizing the results of the Construction Defects Survey.
This Community Associations Institute (“CAI”)
Construction Defects Report demonstrates that many community associations do not discover construction deficiencies until after warranties have expired and/or fail to take the necessary actions to preserve their claims before the statutes of limitations runs. As a result, many homeowners and Condominium associations ended up using association funds to correct builder construction defects and damages caused thereby.
Read the court decisionRead the full story...Reprinted courtesy of
Nicholas D. Cowie, Cowie & MottMr. Cowie may be contacted at
ndc@cowiemott.com
Bats, Water, Soil, and Bridges- an Engineer’s dream
December 31, 2014 —
Melissa Dewey Brumback – Construction Law in North CarolinaWant to know how bats may affect your engineering plans? Want to hear about cool new bridges? Read on.
Over the past month, I’ve had the pleasure of attending two events hosted by the North Carolina Chapter of the ACEC (American Council of Engineering Companies). The first of these was the Joint Transportation Conference, held in conjunction with the NC DOT. The second was the annual ACEC Engineering Excellence Awards. At both events, I learned interesting information that engineers should know. Today, I will discuss the Transportation Conference, including some new regulations and unusual design methods. I will save the highlights from the Excellence Awards for later this week.
1. It’s a cave, it’s a bat, it’s bats, man!
Did you know that your future bridge project may be affected by the Northern Long-Eared Bat? It’s true. Right now, the federal government is considering listing the bat on the Endangered Species List, due to the 98-99% mortality rate the bats are experiencing due to “white nose syndrome”. Over 1,700 projects in North Carolina could be impacted, including work on bridges, culverts, abandoned buildings, and guardrails–essentially, any activity involving tree clearing, structure demolition/removal, or structure maintenance. On November 26th, 2014, the US Fish and Wildlife Service extended the comment period to discuss the implications of listing the bat on the endangered species list. If the bat is listed, there is no grandfathering of projects. All projects will immediately be required to engage in protective activities. Stay tuned, but be aware that your transportation projects could be affected starting sometime next year.
Read the court decisionRead the full story...Reprinted courtesy of
Melissa Dewey Brumback, Construction Law in North CarolinaMs. Brumback may be contacted at
mbrumback@rl-law.com
The Anatomy of a Construction Dispute- The Claim
January 12, 2015 —
Christopher G. Hill – Construction Law MusingsA new year brings with it promise and challenges. The promise is a relatively clean slate and the thought that 2015 will be a great year for construction professionals and those that assist them. The challenges come from the almost inevitable issues that can arise on a construction site with its many moving parts and enough potential pitfalls to make even the most optimistic construction attorney, contractor, subcontractor or supplier think that Murphy was an optimist.
In order to assist with the potential challenges, this post will be the first in a series of “musings” on the best way to handle a payment dispute arising from a construction contract. This week’s post will discuss what the first steps should be once a payment dispute or claim arises. We’ll assume that you, as a construction contractor, have taken early advantage of the services of a construction lawyer and have carefully reviewed your contract for issues before signing that contract.
Read the court decisionRead the full story...Reprinted courtesy of
Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
