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DIRECTORY AND CAPABILITIES

CDJ’s Year-End Review: The Top 10 CD Topics of 2014

December 31, 2014 — Beverley BevenFlorez-CDJ STAFF
Construction Defect Journal’s year-end review presents the top ten most popular topics featured in the journal in 2014. Some of the topics involved analysis of important construction defect cases, while others covered current events such as proposed state legislation. Most issues were heavily discussed on CDJ as well as in board rooms and during teleconferences. We hope you enjoy the look-back at 2014 interspersed throughout the issue, and we wish you and yours a prosperous 2015! CDJ’s #1 Topic of the Year: Indalex Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2013 Pa. Super 311 (Dec. 3, 2013) According to Darrin J. McMullen of Anderson Kill, “[t]he Indalex decision reverses a nearly decade-long trend of Pennsylvania decisions narrowing the scope of insurance coverage for construction and defect-related claims under commercial general liability insurance policies. Equally important, the Indalex ruling dealt a blow to the insurance industry’s continual efforts to win overbroad expansion of the rulings in Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., and Erie Ins. Exchange v. Abbott Furnace Co., which found that claims of faulty workmanship in some circumstances may not constitute coverage-triggering ‘occurrences.’” Read the court decision
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Why You May Not Want a Mandatory Mediation Clause in Your Construction Contract

October 26, 2017 — Christopher G. Hill - Construction Law Musings
I know, you are likely surprised by the title of this post. You’ve read Construction Law Musings for a while now and know that as a Virginia Supreme Court certified mediator, I have advocated mediation as a great way to resolve your construction disputes short of the expensive and time consuming litigation process. Knowing all of this, you as a reader of this blog (thanks by the way) probably wonder why I think that a mandatory mediation clause may not be the best thing for your construction contracts. I can understand your possible confusion (particularly in light of this post from @sethsmiley). Please don’t take the headline as my suddenly taking a new view of mediation. Short of simply resolving the dispute between the parties to the construction contract, mediation still remains number one on my list of construction dispute resolution mechanisms. I still believe that it is useful even when a resolution is not met after a good faith attempt by both sides to come to a business agreement. However, I also believe that mediation works best when entered into voluntarily by the parties. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Employee or Independent Contractor? New Administrator’s Interpretation Issued by Department of Labor Provides Guidance

August 04, 2015 — Tanya Salgado – White and Williams LLP
The question of whether a worker should be classified as an independent contractor or an employee is fraught with confusion and misunderstanding for many businesses. Compounding the problem is the fact that there are a number of different tests used to determine employee status, which vary by jurisdiction and by the particular law in question. For example, the Internal Revenue Service uses the common law rules which focus on the degree of control and independence exercised by the worker. In contrast, the United States Department of Labor uses the “economic realities” test which focuses on whether the worker is economically dependent on the employer. In an effort to help combat the confusion over proper worker classification, the United States Department of Labor (DOL) has issued a new Administrator’s Interpretation that provides a detailed explanation of the test used by the DOL to determine if a worker has been misclassified as an independent contractor. The DOL enforces the Fair Labor Standards Act (FLSA), which mandates that employees (but not independent contractors) be paid minimum wage and overtime. When a business misclassifies non-exempt workers as independent contractors, and those workers are not paid the minimum hourly wage for their labor, or are not paid overtime when they work more than 40 hours in a workweek, this violates the FLSA. Read the court decision
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Reprinted courtesy of Tanya Salgado, White and Williams LLP
Ms. Salgado may be contacted at salgadot@whiteandwilliams.com

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Federal Contractors – Double Check the Terms of Your Contract Before Performing Ordered Changes

July 08, 2019 — Jonathan Schirmer - Ahlers Cressman & Sleight PLLC
As federal contractors may be aware, the general rule when performing a contract for the federal government is that only the contracting officer (“CO”) can bind the government. Often, the CO delegates responsibility to a contracting officer’s representative (“COR”). While in some cases a COR may be able to bind the federal government, the contract may limit that ability exclusively to the CO. Important for our clients, it is the responsibility of the contractor to determine whether the COR can legally bind the federal government when ordering changes to the scope of work. [1] This is true even when a COR possesses apparent authority to order changes to the work, and when the project is almost exclusively overseen by COR’s. [2] A recent case highlights the dangers of a contractor relying on the orders of a COR when performing work outside the scope of a contract. In Baistar Mechanical Inc., a contractor was awarded a maintenance and snow removal contract with the federal government. The contract expressly stated that only the CO had contracting authority regarding additional or changed work. [3] However, Baistar, the contractor, argued it was directed by the contracting officer’s representatives to perform work outside of the contract. Read the court decision
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Reprinted courtesy of Jonathan Schirmer, Ahlers Cressman & Sleight PLLC
Mr. Schirmer may be contacted at jonathan.schirmer@acslawyers.com

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Don’t Do this When it Comes to Construction Liens

September 07, 2020 — David Adelstein - Florida Construction Legal Updates
When it comes to preparing and recording a construction lien, this case is an example of what NOT TO DO! I mean it — this exemplifies what NOT TO DO! It is also a case study of why a party should always work with counsel in preparing a construction lien so that you can avoid the outcome in this case–your lien being deemed fraudulent. In Witters Contracting Company v. West, 2020 WL 4030845 (Fla. 2d DCA 2020), homeowners hired a contractor to renovate their home under a cost-plus arrangement where the contractor was entitled to a 10% fee on construction costs. The contract also required extra work to be agreed in writing between the owner and contractor. During construction a dispute arose. The contractor texted the owner that it will cancel the permit and record a $100,000 construction lien if the owner did not pay it $30,000. Shortly thereafter, the contractor’s counsel sent the homeowners a demand for $59,706 with back-up documentation. Less than a week later, the contractor recorded a construction lien for $75,000. The owners initiated a lawsuit against the contractor that included a claim for fraudulent lien. The contractor then amended its construction lien for $87,239. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Maritime Law: An Albatross for Contractors Navigating Marine Construction

January 03, 2022 — Cindy Matherne Muller - ConsensusDocs
“Ah! Well a-day! When evil looks, Had I from old and young! Instead of the cross, the Albatross, About my neck was hung.” 1 Contractors and subcontractors performing construction over water may find themselves encountering maritime law for the first time. Like the ancient mariner’s encounter with an albatross in The Rime of the Ancient Mariner, a contractor may be able to use maritime law to safely guide it through rough seas, or, if not careful, a contractor may find itself with maritime law hung, like an albatross, around its neck. This article gives an overview of key maritime law issues to demystify this historical body of law and answers some basic questions. What is admiralty jurisdiction? The Constitution gives federal courts jurisdiction over all maritime cases. This jurisdiction gives litigants the opportunity to remove state court cases to federal court and to avoid a jury trial. The purpose of admiralty jurisdiction in federal court is to protect and ensure the uniform treatment of nationwide maritime commerce and extends to maritime contracts and accidents. Any contract which relates to the navigation, business, or commerce of the sea is a maritime contract. Even contracts with mixed obligations on land and sea can fall within admiralty jurisdiction – such as construction contracts with a waterborne component. Admiralty jurisdiction also extends to maritime accidents – those that occur on navigable waters and have a maritime nexus. Read the court decision
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Reprinted courtesy of Cindy Matherne Muller, Jones Walker LLP
Ms. Muller may be contacted at cmuller@joneswalker.com

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Real Estate & Construction News Roundup (3/20/24) – Construction Backlog Falls, National Association of Realtors Settle Litigation, and Commercial Real Estate Market’s Effect on City Cuts

April 15, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, bad loans outweigh loss reserves at top six U.S. banks, the FCC announces a proposed rule aimed at “bulk billing,” office-to-multifamily conversion projects grow in major metro cities, and more!

• The National Association of Realtors has agreed to settle litigation that accused them of artificially inflating real estate commissions – a major decision that could reshape the housing market for buyers, sellers and agents. (Rachel Siegel, The Washington Post)
• An NYU professor considers the positives and negatives of cities cutting services or raising other kinds of taxes to offset the continued faltering of the commercial real estate market. (Alan Rappeport, The New York Times)
• Construction backlog fell in February for every size of contractor except for those with under $30 million in annual revenue, while, over the past year, the largest contractors – those with greater than $50 million in revenue – have experienced the greatest decline in backlog. (Sebastian Obando, Construction Dive).

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Houston Bond Issue Jump-Starts 237 Flood Control Projects

September 10, 2018 — Louise Poirier & Pam Radtke Russell - Engineering News-Record
More than $3 billion in flood risk reduction and repair projects can move forward in Houston following a vote held on Hurricane Harvey's anniversary that authorized a $2.5-billion bond program. Reprinted courtesy of Louise Poirier, ENR and Pam Radtke Russell, ENR Ms. Poirier may be contacted at poirierl@enr.com Ms. Russell may be contacted at Russellp@bnpmedia.com Read the court decision
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