Guilty Pleas Draw Renewed Interest In Nevada’s Construction Defect Laws
December 09, 2011 —
CDJ STAFFA report this week by David McGrath Schwarz of the Las Vegas Sun suggests that Nevada’s construction defect laws will be a point of much contention in upcoming legislative sessions. The report cites renewed interest in the state’s construction defect laws due to ongoing federal investigations of construction defect attorney Nancy Quon and construction company owner Leon Benzer. Guilty pleas have been entered by at least ten individuals including an attorney, property managers, straw purchasers, and former HOA board members.
The article suggests that Nevada’s Chapter 40 laws are easily manipulated to the detriment of Nevada’s homebuilding industry. Construction industry lobbyists have tried unsuccessfully to change the laws in past legislative sessions.
The Sun’s article speculates that the building industry might be able to gain legislative concessions due to the volume of guilty pleas and what it refers to as examples of Chapter 40 abuses. ”With federal authorities collecting guilty pleas, the construction industry has prime examples of the system being abused, and how lucrative it can be for attorneys.”
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Understanding California’s Pure Comparative Negligence Law
November 13, 2023 —
Yaron Shaham - Kahana FeldIn order for a plaintiff to prove a defendant is negligent, the plaintiff must prove the defendant (1) owed a duty to plaintiff, (2) breached that duty, (3) the breach was the actual and proximate cause of plaintiff’s injury, and (4) the resulting monetary damage. However, for both plaintiffs and defendants it is not an all or nothing game in California. This is because California is a pure Comparative Negligence state.
California’s Comparative Negligence law provides that even if a plaintiff is deemed 99% at fault, the plaintiff can still recover 1% in damages from a defendant. Thus, even if a plaintiff is deemed to be more than 50% (or even 99%) at fault for the incident, the plaintiff could still recover some monetary amount, or the defendant will still have to pay plaintiff, depending on how you see it. In most instances, a jury decides what percentage of fault to assign to each party.
Just as a plaintiff must prove he/she/its negligence case against a defendant, if the defendant claims plaintiff was partially responsible for the incident, the defendant must prove plaintiff was also negligent and said negligence contributed to plaintiff’s injuries. The total amount of monetary responsibility distributed among all defendants and plaintiffs must equal 100%. As crazy as it may sound, a plaintiff found to be 99.9% at fault, is still entitled to recover 0.01% from a defendant in California.
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Yaron Shaham, Kahana FeldMr. Shaham may be contacted at
yshaham@kahanafeld.com
Congratulations to Partner Alex Giannetto for Being Named to San Diego Business Journal’s Top 100 Leaders in Law List
December 03, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPCongratulations to Partner Alexander Giannetto for being selected as a “2024 Leaders of Influence in Law” by the San Diego Business Journal! To read and download the SDBJ publication, please click
here.
Alex Giannetto is a managing partner with Bremer, Whyte, Brown & O’Meara LLP’s San Diego office. He has extensive experience in all aspects of civil litigation handling liability matters including slip and falls, catastrophic injuries, wrongful death, traumatic brain injuries, landslides, and construction claims. He has obtained favorable trial results defending clients on personal injury and premises matters in San Diego and Los Angeles. He also has appellate experience. He is an AV-rated attorney by Martindale-Hubbell who has been voted Best of the Bar in San Diego as well as a Top Lawyer in San Diego.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Suing A Payment Bond Surety in Different Venue Than Set Forth in The Subcontract
August 10, 2021 —
David Adelstein - Florida Construction Legal UpdatesThe venue to file a lawsuit can be an important issue for a variety of reasons, whether for convenience or the prospect of a more favorable outcome. Oftentimes, there is a venue provision in a contract that provides where the exclusive venue for any dispute arising out of the contract must be brought.
In a recent case, Southeastern Concrete Constructors, LLC v. Western Surety Company, 2021 WL 2557297 (Fla. 2d DCA 2021), dealing with a Florida Department of Transportation (FDOT) project, a subcontractor filed suit against the general contractor’s FDOT payment bond issued under Florida Statute s. 337.18. The subcontractor did not file suit against the general contractor. The subcontractor filed suit in Hillsborough County, Florida. However, the subcontract contained a venue provision requiring disputes under the subcontract to be brought in Levy County, Florida. Based on this venue provision in the subcontract, the trial court granted a motion to transfer the venue of the dispute to Levy County. This, however, was reversed on appeal.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Flag on the Play! Expired Contractor’s License!
October 02, 2015 —
Yas Omidi – California Construction Law BlogIt’s football season again. Which means, of course, that in addition to touch downs and field goals, you’ll also see hooting and hollering when the ref throws down a yellow flag signaling that a foul has been committed.
In Judicial Council of California v. Jacob Facilities, Inc., Case Nos. A140890, A141393 (August 20, 2015), The California Court of Appeals for the First District threw down its own yellow flag under the dreaded Business and Professions Code section 7031, finding that a contractor was required to disgorge all monies received on a project – to the tune of a whopping $18 million – when its parent company allowed the subsidiary’s contractor’s license to lapse when it rebranded a new company to perform the work of the old company but never formally assigned the contract. I think someone in marketing may be in big trouble.
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Yasmeen, Omidi, Wendel Rosen Black & Dean LLPMs. Omidi may be contacted at
yomidi@wendel.com
What Will the 2024 Construction Economy Look Like?
January 02, 2024 —
Grace Calengor - Construction ExecutiveCE just wrapped its "2024 Economic Update and Forecast" webinar, which revealed some interesting insights for 2023 and projections for next year. Anirban Basu, chief economist for ABC and CEO of Sage Policy Group, began his presentation by stating auspiciously: “The economy has been much stronger along more dimensions than I expected.”
Polling: good news for the supply chain
Not only did Basu's own research reveal strong construction growth in a majority of sectors, a decent number of construction job openings and wage increases, as well as supply-chain improvement and a stagnating federal rate—but webinar attendees who answered Basu's polling questions felt similarly.
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Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Standard of Care
December 16, 2019 —
Jay Gregory - Gordon & Rees Construction Law BlogOne of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing.
Although we have this ready definition of the standard of care, in any given dispute it is practically inevitable that the parties will have markedly different opinions as to: (1) what the standard of care required of the designer; and (2) whether the defendant design professional complied with that requirement. The claimant bringing a claim against a design professional typically will be able to find an expert reasonably qualified (at least on paper) who will offer an opinion that the defendant failed to comply with the standard of care. It is just as likely that the counsel for the defendant design professional will be able to find his or her own expert who will counter the opinion of the claimant’s expert and maintain that the defendant design professional, in fact, complied with the standard of care. What’s a jury to think?
The concept of standard of care is intertwined with the legal concept of negligence. In the vast majority of law suits against design professionals, a claimant (known as the plaintiff) will assert a claim for negligence against the design professional now known as the defendant.1 As every first year law student learns while studying the field of “Torts,” negligence has four subparts. In order for a defendant to be found negligent, the claimant must establish four elements: (1) duty; (2) breach; (3) causation; and (4) damages. In other words, to establish a claim against a defendant design professional, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care but breached that duty and, as a result, caused the plaintiff to suffer damages.
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Jay Gregory, Gordon & Rees Scully MansukhaniMr. Gregory may be contacted at
jgregory@grsm.com
Bert L. Howe & Associates Brings Professional Development Series to Their San Antonio Office
March 28, 2014 —
Beverley BevenFlorez-CDJ STAFFMirroring similar seminars currently provided in other regional markets, BHA’s Professional Development Series provides seminar attendees with a heightened level of knowledge and understanding on a wide range of subjects covering construction and construction defect litigation, tailored to the unique needs of local counsel and insureds.
The first seminar in this series will be presented on May 9th, and is entitled THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION.
This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.0 credit hours, of which 0.0 credit hours will apply to legal ethics/professional responsibility credit.
The seminar will be presented by Don MacGregor, general contractor and project manager, at BHA’s San Antonio office during the noontime hour, and luncheon will be provided. As with all BHA Professional Development activities, there is no cost for participation.
Water intrusion through doors, windows and roofing systems, as well as soil and foundation-related movement, and the resultant damage associated therewith, are the triggering effects for the vast majority of homeowner complaints today and serve as the basis for most residential construction defect litigation.
The graphic and animation-supported workshop/lecture activity will focus on the residential construction process from site preparation through occupancy, an examination of associated damages most often encountered when investigating construction defect claims, and the inter-relationships between the developer, general contractor, sub trades and design professionals.
Typical plaintiff homeowner/HOA expert allegations will be examined in connection with those building components most frequently associated with construction defect and claims litigation.
The workshop will examine:
* Typical construction materials, and terminology associated with residential construction
* The installation process and sequencing of major construction elements, including interrelationship with other building assemblies
* The parties (subcontractors) typically associated with major construction assemblies and components
* The various ASTM standard testing protocols utilized to field test buildings
* An analysis of exposure/allocation to responsible parties
Attendance at THE RESIDENTIAL CONSTRUCTION PROCESS & CONSTRUCTION DEFECT LITIGATION seminar will provide the attendee with:
* A greater understanding of the terms and conditions encountered when dealing with common construction defect issues
* A greater understanding of contractual scopes of work encountered when reviewing construction contract documents
* The ability to identify, both quickly and accurately, potentially responsible parties
* An understanding of damages most often associated with construction defects, as well as a greater ability to identify conditions triggering coverage
* Assistance in the satisfaction of important continuing education requirements.
Course #: 901290467 / Sponsor #: 14152
To register for the event, please email Don MacGregor at dmac@berthowe.com.
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