Dump Site Provider Has Valid Little Miller Act Claim
October 19, 2020 —
Christopher G. Hill - Construction Law MusingsYou may have thought that a Virginia “Little Miller Act” bond claim, like a mechanic’s lien, could only be brought by those that provide materials and labor incorporated into the construction project. If you did, you aren’t alone.
In fact, Safeco Insurance Co. of America, a surety, made exactly the above argument in Yard Works LLC v. GroundDown Constructors LLC. In that case, a debris hauling company failed to pay Yard Works, the company that provided the dumping site for the debris. Yard Works sued pursuant to the Little Miller Act to get paid. In response, the surety sought to have the claim against the payment bond dismissed and argued that because Yard Works did not actually improve the property or provide improvements and that Yard Works only passively provided a dump site, Yard Works could not claim under the payment bond.
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The Law Office of Christopher G. HillMr. Eyerly may be contacted at
te@hawaiilawyer.com
U.S. Architecture Firms’ Billing Index Faster in Dec.
February 05, 2015 —
Bloomberg News(Bloomberg) -- Billings at U.S. architecture firms grew at a higher rate in December, according to the American Institute of Architects.
Billings at architecture firms, tracked by the Work-on-the-Boards survey, measured 52.2 in December compared to 50.9 a month earlier. The inquiry index, which tracks a firm’s capacity to take on additional work, moved to 58.2.
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Bloomberg News
Amazon’s Fatal Warehouse Collapse Is Being Investigated by OSHA
December 13, 2021 —
Josh Eidelson & Spencer Soper - BloombergThe Occupational Safety and Health Administration has opened an investigation into the collapse of an Amazon.com Inc. warehouse, according to a Labor Department spokesperson.
A tornado struck the Amazon delivery station in Edwardsville, Illinois, on Friday, killing six workers and destroying much of the facility at the peak of the holiday shopping season.
“OSHA has had compliance officers at the complex since Saturday, Dec. 11, to provide assistance,” the spokesperson said. “OSHA has six months to complete its investigation, issue citations and propose monetary penalties if violations of workplace safety and or health regulations are found.”
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Josh Eidelson, Bloomberg and
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Charles Eppolito Appointed Vice-Chair of the PBA Judicial Evaluation Commission and Receives Prestigious “President’s Award”
November 30, 2020 —
Charles Eppolito, III - White and Williams LLPPartner Charles (Chuck) Eppolito, III has been appointed as a Vice-Chair of the Pennsylvania Bar Association (PBA) Judicial Evaluation Commission. His three-year term begins immediately and will expire September 30, 2023. The PBA Judicial Evaluation Commission is responsible for developing and implementing a judicial evaluation process for appellate judicial candidates in the Commonwealth of Pennsylvania. As Vice-Chair, Chuck will oversee reviewing the investigative panel's report, interviewing each candidate, discussing qualifications and reaching an agreement upon and issuing a rating for each candidate for appellate judicial office.
Chuck has a long history of involvement with the 25,000-member organization, serving as PBA Secretary from 2007 to 2010, Chair of the House of Delegates from 2011 to 2013 and President from 2018 to 2019. Most recently, it was announced that Chuck is a recipient of a PBA “President’s Award” for his dedication and commitment to fulfilling the mission of the PBA COVID-19 Task Force. The award will be presented during the virtual PBA Awards Luncheon on Thursday, November 19, 2020.
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Charles Eppolito, III, White and Williams LLPMr. Eppolito may be contacted at
eppolitoc@whiteandwilliams.com
OSHA’s Multi-Employer Citation Policy: What Employers on Construction Sites Need to Know
September 09, 2019 —
Phillip C. Bauknight - Construction ExecutiveMulti-employer worksites are a frequent occurrence in the construction industry as employees from various companies often occupy the same site while a project is being completed. While the need for employees from different companies may be necessary to perform the various tasks required by a project, the presence of multiple employers, and their employees, on the same worksite can result in an increased risk of safety hazards.
Companies performing construction work should be, and generally are, aware of OSHA’s ability to issue citations for workplace safety violations. What many companies may not know, however, is that OSHA’s ability to cite employers is not limited to workplace conditions that are unsafe only to that employer’s direct employees. Rather, OSHA also has the ability to cite an employer, and often does issue such citations, for conditions that could result in injury or death to another company’s employees.
The policy which provides OSHA with this citation ability is CPL 02-00-124 and is called the Multi-Employer Citation Policy (the “Policy”). Under the language of the Policy, OSHA has the ability to cite multiple employers for violations of the Occupational Safety and Health Act for the same hazardous workplace condition. Critically, responsibilities under the Policy do not depend on the employer’s job title but are determined by the employer’s role.
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Phillip C. Bauknight, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Bauknight may be contacted at
pbauknight@fisherphillips.com
Update: Lawyers Can Be Bound to Confidentiality Provision in Settlement Agreement
January 13, 2020 —
Danielle Ward, Esq. - Balestreri Potocki & HolmesIn July 2019, the California Supreme Court ruled that an attorney’s signature under the often-used phrase “approved as to form and content” does not preclude a finding that the attorney could be bound to the terms of a settlement agreement. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781.) This decision marks a reversal of the Fourth District Court of Appeal’s 2018 ruling that approval of a contract is not tantamount to an agreement to be bound by that contract.
The underlying action stemmed out of a wrongful death suit by Wendy Crossland and Richard Fournier, parents of the decedent, against Monster Energy Company. The parties negotiated a settlement, a critical of element of which was a confidentiality provision aimed at keeping the the settlement secret.
The confidentiality provision prohibited plaintiffs and their counsel of record from disclosing both the existence of the settlement, or the terms thereof, to any person, entity, or publication, including the legal website Lawyers & Settlements. The attorneys signed the agreement under the phrase “approved as to form and content.”
Shortly after the settlement agreement was executed, the Plaintiffs’ attorney Bruce Schechter disclosed his clients’ settlement with Monster in an interview with Lawyers & Settlements. Monster filed suit against Mr. Schechter for breach of contract, among other causes of action. Mr. Schechter challenged the lawsuit with a SLAPP motion, essentially arguing that the lawsuit was meritless and merely an attempt to thwart freedom of speech.
The trial court denied Mr. Schechter’s motion as to the breach of contract cause of action finding that the settlement clearly contemplated that the attorneys were subjected to the terms of the agreement, and Schechter’s claim that he was not a party because he merely approved as to form and content was “beyond reason.”
The Fourth District Court of Appeal reversed, concluding that Mr. Schechter was not a party to the agreement by virtue of his signature approving the form and content, and the Plaintiffs had no authority to bind their attorney to the terms of the agreement. The Court of Appeal found that by affixing his signature to the agreement Mr. Schechter was merely manifesting his “professional thumbs up” in line with legal industry’s customary understanding.
In its reversal, the California Supreme Court did not disturb the legal community’s understanding of the phrase “approved as to form and content.” Rather, the Court concluded that an attorney’s signature under that often-used phrase does not preclude as a matter of law that the attorney intended to be bound by the agreement. The entire agreement, including the substantive provisions, need to be examined to determine the attorney’s intent in affixing his/her signature to the agreement.
Turning to the Crossland/Fournier Monster settlement agreement, the Court was unpersuaded by Mr. Schechter’s argument that he was not bound to the agreement because counsel was not included in the definition of “party”. The Court stated that it’s the substance of the agreement that determines whether counsel is a party to the contract, as opposed to a party to the lawsuit.
The Court was persuaded, in part, by the important role that confidentiality plays in brokering settlements. It noted that public disclosure of private settlements would serve to “chill” parties’ ability to resolve matters short of trial, and there was little doubt that confidentiality was an important term of the Crossland/Fournier Monster settlement. In concluding that Monster had met its burden to defeat an anti-SLAPP motion, the Court pointed to the numerous references to counsel in the substantive provisions of the agreement which a trier of fact could conclude bound Mr. Schechter to the confidentiality terms.
Danielle Ward has concentrated her law practice on defending developer, general contractor, and subcontractor clients in a variety of construction matters. She has been an attorney with Balestreri Potocki & Holmes since 2010 and can be reached at dward@bph-law.com.
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Insurer’s Consent Not Needed for Settlement
October 14, 2013 —
CDJ STAFFThe Texas Supreme Court has concluded in Lennar Corp. v. Markel Am. Ins. Co. that “the costs incurred by a builder to locate and repair damage caused by the builder’s defective product are covered under its general liability insurance policy.” Hunton & Williams have issued a Client Alert discussing the case.
For the background of the case, Lennar built about 800 homes using EIFS. The EIFS trapped water and the homes suffered from rot, structural damage, mold, mildew, and termites. Lennar fixed all the homes so built, avoiding litigation. Lennar “notifed its insurers of the defects and invited its insurers to participate in the proactive remediation program.”
A lower court had agreed with Markel, one of Lennar’s insurers, that the losses were not “caused by property damage,” and that Lennar should not have made “voluntary payments without Markel’s consent.” The Texas Supreme Court granted review, rejecting Markel’s argument and affirming the jury’s finding.
According to Hunton & Williams, the implications of the Texas Lennar decision is that it “confirms that all insurers with policy in effect at the time of property damage are responsible for all sums for which the policyholder is liable.”
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Lump Sum Subcontract? Perhaps Not.
August 20, 2019 —
David Adelstein - Florida Construction Legal UpdatesLump sum subcontract? Perhaps not due to a recent ruling where the trial court said “No!” based on the language in the subcontract and contract documents generally incorporated into the subcontract.
This is a ruling on an interpretation of a subcontract and contract documents incorporated into the subcontract that I do not agree with and struggle to fully comprehend. The issue was whether the subcontract amount was a lump sum or subject to an audit, adjustment, and definitization based on actual costs incurred. Of course, the subcontractor (or any person in any business) is not just interested in recouping actual costs, but there needs to be a margin to cover profit and home office overhead that does not get factored into field general conditions.
In United States v. Travelers Casualty and Surety Company, 2018 WL 6571234 (M.D.Fla. 2018), a prime contractor was hired to perform work on a federal project. During the work, the Government issued the prime contractor a Modification that had a not-to-exceed value and required the prime contractor to track its costs for this Modification separate from other contract costs. In other words, based on this Modification, the prime contractor was paid its costs up to a maximum amount and the prime contractor would separately cost-code and track the costs for this work differently than other work it was performing under the prime contract.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
