Recent Environmental Cases: Something in the Water, in the Air and in the Woods
July 22, 2019 —
Anthony B. Cavender - Gravel2GavelState of Texas, et al. v. US EPA. The revised regulatory definition of “Waters of the U.S.” continues to generate litigation in the federal courts. On May 28, 2019, the U.S. District Court for the Southern District of Texas held that the 2015 rulemaking proceedings used by EPA and the U.S. Army Corp of Engineers to redefine this important component of the Clean Water Act were flawed in that the notice and comment provisions of the Administrative Procedure Act (APA) were violated because insufficient notice was provided by these agencies that “adjacent” waters newly subject to the regulatory jurisdiction of these agencies, can be determined on the basis of specific distances, which was a change in the agencies’ thinking, and insufficient notice of this change was provided to the public. In addition, the final rule “also violated the APA by preventing interested parties from commenting on the scientific studies that served as the technical basis” for the rule. However, the court did not vacate the new rule, but remanded the matter to the “appropriate administrative agencies” to give them an opportunity to fix this problem.
State of Oklahoma, ex rel. Mike Hunter, Attorney General of Oklahoma v. US EPA and the United States Army Corps of Engineers. A day later, on May 29, 2019, the U.S. District Court for the Northern District of Oklahoma rejected arguments that the new redefinition should be preliminarily enjoined.While this case was filed in 2015, intervening litigation in the federal courts, including the U.S. Supreme Court, caused a substantial delay in the disposition of this case. The court, noting that the tests for granting such an injunction against the federal government are fairly exacting, held that the plaintiffs, the State of Oklahoma and a number of industry groups and associations, failed to convince the court that the harm they would suffer if the rules remained effective would be irreparable. Presumably, this case will be going to trial in the near future.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Arizona Court of Appeals Upholds Judgment on behalf of Homeowners against Del Webb Communities for Homes Riddled with Construction Defects
February 26, 2015 —
Law Offices of Kasdan Weber Turner LLPARIZONA COURT OF APPEALS UPHOLDS LOWER COURT DECISION APPROVING $13,703,039 JUDGMENT ON BEHALF OF 460 SUN CITY GRAND HOMEOWNERS AGAINST DEL WEBB COMMUNITIES, INC., A SUBSIDIARY OF PULTEGROUP, INC., FOR HOMES RIDDLED WITH CONSTRUCTION DEFECTS
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In a separate case, an Arizona Superior Court awards $10,619,640 to another 279 Sun City Grand homeowners who sued Del Webb over construction defects, which Del Webb has appealed--
PHOENIX, Arizona – The Arizona Court of Appeals, Division One, [on Tuesday] issued a unanimous ruling upholding a lower court decision awarding $13,703,039 to 460 Sun City Grand homeowners who sued developer Del Webb Communities, Inc., a subsidiary of PulteGroup, Inc., for numerous construction defects that severely damaged the plaintiffs’ homes. Sun City Grand is an age-restricted community located in Surprise.
In a separate case, an Arizona Superior Court awarded $10,619,640 to another group of 279 Sun City Grand homeowners for multiple construction defects in their homes.
Stephen Weber, the managing partner in the Phoenix office of Kasdan Weber Turner LLP, which represents the homeowners, said that the case is based on construction defects that damaged the plaintiffs’ homes and took several years to resolve. The defects include defective windows, poorly installed stucco, expansive soil conditions that resulted in cracking of drywall, and deteriorating concrete foundation systems, among other problems.
“Del Webb placed an arbitration clause in the sales contracts and the homeowners honored it. The binding arbitration that includes the owners of 460 homes in Sun City Grand was completed in late 2011 when the arbitration panel unanimously awarded the homeowners $13,703,039. Del Webb then challenged the award in Superior Court and the Superior Court confirmed the award in full,” Weber explained. “Del Webb did not like the Superior Court ruling either and challenged it in the Court of Appeals. And now three justices of the Arizona Court of Appeals have unanimously affirmed the Superior Court order and the arbitration award stands. Now they will have the funds to repair their homes, restore their value, and live in comfort,” Weber said.
The $13,703,309 award includes amounts for home repairs, attorney fees, expert fees, court costs and pre-judgment interest. An additional $1,401,236 in post-judgment interest also accrued while the case was on appeal. The other construction defect case that awarded $10,619,640 to homeowners was not covered by binding arbitration.
Del Webb has also appealed that case which will now go through the appeals process. That could take two to three years and again the homeowners will have to wait for the final judgment, Weber noted.
Ken Kasdan, senior and managing partner of the Kasdan Weber Turner firm and one of the nation’s leading experts on construction defect litigation, said the defects are egregious. “The multiple defects rob them of pride of ownership,” he said. “A home is something that a homeowner wants to be proud of. Unfortunately, defective workmanship and poor construction have caused damage to the homes. Now these homes can be repaired and the homeowners will no longer have to deal with defective windows and cracked slabs. Developers need to understand that arbitration awards are final and binding,” Kasdan noted.
The Kasdan Weber Turner law firm has offices in Phoenix, Arizona and in Irvine, California and Walnut Creek, California. The firm represents property owners in major construction defect litigation. For more information on the firm, visit www.kasdancdlaw.com. Stephen Weber may be contacted at (602) 224-7800.
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Construction on the Rise in Washington Town
June 16, 2011 —
CDJ STAFFThe Kitsap Sun reports that Gig Harbor, a town in the area near Tacoma, Washington, has had a 60% increase in building permit applications as compared to 2010. May, 2011 had as many permits issued for single-family residences in Gig Harbor as were issued for all of 2010. Additionally, a Safeway shopping center on Point Fosdick is described by Dick Bower, Gig Harbor Building and Fire Safety Director, as “a huge project and it’s going to bring in quite a bit of revenue.” He called the increase in building “economic recovery at the grassroots level.”
Bower said that the building officials in other towns have also seen upswings in construction. He anticipates more activity in the future.
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OSHA Issues Final Rule on Electronic Submission of Injury and Illness Data
September 25, 2023 —
Garret Murai - California Construction Law BlogThe U.S. Occupational Safety and Health Administration (OSHA) has issued its
final rule (Final Rule) on electronic submission of injury and illness information. The Final Rule applies to employers with 100 or more employees in certain high-hazard industries, including construction, and requires such employers to electronically submit injury and illness information to OSHA on a yearly basis. If you fall into that category, here’s what you need to know to comply:
Who do the Final Rules apply to?
The Final Rules apply to companies with 100 or more employees in certain high-hazard industries. This includes construction companies with 100 or more employees working on federal construction projects. The “100 or more employees” threshold applies to companies with 100 or more employees at any time during the previous calendar year.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
A Survey of New Texas Environmental Laws
December 30, 2019 —
Anthony B. Cavender - Gravel2GavelThis is a brief survey of many of the environmental and regulatory laws passed by the Texas Legislature and signed by the Governor in the 86th Regular Session of the Legislature, which ended in May 2019. Altogether, more than 1,300 laws were enacted in this session, including a surprising number of environmentally related bills. Most of these new laws take effect on September 1, 2019. This survey places them in the following broad categories: Air, Water; Waste; Disaster (principally because of the effects of Hurricane Harvey); and Miscellaneous.
(Special thanks to Jay Bowlby, a summer intern in our Houston office, who made a significant contribution to this survey.)
1.
Air
HB 1627—amends Section 386.001(2) of the Health and Safety Code to remove several counties from the list of counties with deteriorating air quality subject to the Texas Emissions Reductions Plan.
HB 1346—relates to the diesel emissions reductions incentives and gives the TCEQ flexibility in administering this program.
HB 2726—concerns amended air quality permit applications. The law provides that construction of a project may proceed, at the applicant’s own risk, after the TCEQ Executive Director has issued a draft permit including the permit amendment. However, this provision does not apply to a permit amendment affecting a concrete batch plant located within 888 yards of a residence.
HB 3725—creates the Texas Emissions Reduction Plan Trust Fund, which will be held by the Comptroller and administered by the TCEQ, which also administers the TERP program.
SB 698—authorizes the TCEQ to provide expedited processing of certain Texas Clean Air Act permit applications by increasing the agency’s permitting staff.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Policy Renewals: Has Your Insurer Been Naughty or Nice?
December 26, 2022 —
Latosha M. Ellis & Jae Lynn Huckaba - Hunton insurance Recovery BlogA review of insurance policies at renewal should be on every business’s annual task list—and it should be checked twice! Just as your business grows and evolves every year, so should your insurance program. Together with staying proactive and preparing for renewal months before the policy expiration, there are a number of best practices to put your business in the best position to maximize insurance recovery, including shopping around, evaluating changes to your business, engaging the appropriate stakeholders, and performing a policy audit with a coverage attorney.
Shop Around
An early start to the renewal process allows for thorough decision-making and more time to engage in negotiations with the insurer. Even if the preference is to stay with the existing insurer, shopping around creates some buying power within the negotiation process.
Evaluate Operational or Business Practice Changes
Risk control and mitigation have a direct impact on your premiums and availability of coverage. Assess any changes in the business’s exposure to risk and make any necessary insurance coverage adjustments.
Reprinted courtesy of
Latosha M. Ellis, Hunton Andrews Kurth and
Jae Lynn Huckaba, Hunton Andrews Kurth
Ms. Ellis may be contacted at lellis@HuntonAK.com
Ms. Huckaba may be contacted at jhuckaba@HuntonAK.com
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Indiana Federal Court Holds No Coverage for $50M Default Judgment for Lack of Timely Notice of Class Action
August 26, 2019 —
Anthony L. Miscioscia and Timothy A. Carroll - White and Williams LLPIn Greene v. Kenneth R. Will, a CGL insurer recently prevailed in a declaratory judgment action arising from an underlying class action alleging pollution and nuisance claims against the insured, VIM Recycling LLC, an Indiana-based waste-recycling facility.[1] “[T]his case has some whiskers on it,” the Indiana federal district court recounted in its exhaustive decision granting the insurer relief. The court relieved the insurer of indemnifying a $50 million default judgment against the insured, which, the court observed, “proved to be a bad neighbor” and “nuisance in both the legal and colloquial sense.” The court held that the insured failed to provide timely notice of the class action.
“The judgment against the [insured] came about when a group of nearby homeowners decided that they had had enough of VIM’s polluting behavior and brought this class action to recover damages for environmental violations, nuisance and negligence based on the impact of the waste facility on their homes and property,” the court explained. Eventually, the court entered a default judgment against the insured for $50,568,750, plus an award of $273,339.85 in attorney’s fees. Because the insured was “judgment-proof,” the class action plaintiffs “aligned” with the insured “hoping to collect on their monumental judgment” from the insured’s CGL insurer. Within a few weeks’ time, the class action plaintiffs sued the insurer seeking a declaration of coverage for the default judgment against the insured.
Reprinted courtesy of
Anthony L. Miscioscia, White and Williams LLP and
Timothy A. Carroll, White and Williams LLP
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Mr. Carroll may be contacted at carrollt@whiteandwilliams.com
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The Benefits of Trash Talking: A Cautionary Tale of Demolition Gone Wrong
September 02, 2024 —
Joshua Levy, Anne O'Meara & Kimberly Gutierrez - Construction ExecutiveThat sinking feeling has crossed everyone’s mind at some point: "Did I accidentally throw out...?” It can happen to anyone, from valuable jewelry to uncashed checks or even (in the case of one contractor) to fire-pump control cabinets.
Demolishing the wrong equipment is a concern construction and demolition contractors should review before beginning any project. Recently, one general contractor and its demolition subcontractor would have benefitted from a more detailed “trash” talking session, which could have helped them avoid a dumpster-fire of a legal dispute.
In this case, the general contractor was contracted to renovate a hangar for a military base. The company subcontracted the demolition work to a local, family-owned contractor to demolish aspects of the hangar’s fire-suppression room. The two companies met many times, from planning to daily field walk-downs. They discussed that any equipment that was tagged with bright orange tags would remain in the fire-suppression room. The contractor also reviewed the demolition plans with the demolition company, detailing what should and should not be removed.
Reprinted courtesy of
Joshua Levy, Anne O'Meara & Kimberly Gutierrez, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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