Consider the Risks Associated with an Exculpatory Clause
November 24, 2019 —
David Adelstein - Florida Construction Legal UpdatesAn exculpatory clause in a contract is a clause aimed at relieving another party from certain liability. A disclaimer and insulation from liability. Obviously, if you are the party relieving the other party from liability, you want to consider this risk including the potential enforceability of this risk if something goes wrong. If you are the party asking for the insulation from liability, you do not want to create an exculpatory provision that disclaims and insulates you of all liability arising from the contract as it may create an illusory effect – that the agreement is nothing but a naked promise on your end because your promise is fully disclaimed and you are insulated from liability if you break your promise. This could result in an unenforceable contract.
The validity of such an exculpatory clause was at-issue in Pier 1 Cruise Experts v. Revelex Corp., 2019 WL 3024618 (11thCir. 2019). Although not a construction dispute, the exculpatory clause in this case was with two fairly sophisticated parties and expressly insulated one of the contracting parties from “any…damages regardless of kind or type…whether in contract, tort (including negligence), or otherwise.” Pier 1 Cruise Experts, 2019 WL at *7. This is a powerful exculpatory clause because it could be broadly construed to insulate that party from its own breaches of the contract.
In Florida:
[A]n exculpatory clause is enforceable so long as (1) the contracting parties have equal bargaining power and (2) the clause’s provisions are clear and unambiguous. With respect to the latter requirement, ‘the intention to be relieved from liability [must be] made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.” In the same vein, exculpatory clauses are ‘strictly construed against the party seeking to be relieved of liability.’
Pier 1 Cruise Experts, 2019 WL at *7 (internal citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Newmeyer & Dillion Ranked Fourth Among Medium Sized Companies in 2016 OCBJ Best Places to Work List
September 01, 2016 —
Newmeyer & Dillion LLPProminent business and real estate law firm
Newmeyer & Dillion LLP is proud to announce that it has been ranked fourth among medium sized companies in the
Best Places to Work in Orange County – 2016 Survey. The firm was the only law firm to make the top 25 of its category. This marks the fifth consecutive year Newmeyer & Dillion LLP has made the list showing that its deep commitment to professionalism and client service is shared and appreciated by its workforce.
Jeff Dennis, Newmeyer & Dillion’s Managing Partner, believes the award is representative of the team effort and atmosphere that is fostered at the firm. “We believe that client satisfaction goes hand-in-hand with work-place satisfaction. By combining an environment in which individual effort is recognized, with a team approach in which everyone is respected, we have achieved the perfect balance for success. We are honored that our employees appreciate our efforts in this regard.”
Created in 2009, the awards program evaluates entries based on workplace policies, practices, demographics and also collects employee surveys to measure overall satisfaction and experience. The Best Companies Group worked alongside the Orange County Business Journal in collecting and analyzing the data and is a partner in the project.
Newmeyer & Dillion has been honored in the July 25 issue of the Orange County Business Journal. For more information on the survey process and to see other award recipients contact Jackie Miller at 877-455-2159 or visit www.BestPlacestoWorkOC.com.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Over 70 Lewis Brisbois Attorneys Recognized in 4th Edition of Best Lawyers: Ones to Watch in America
September 25, 2023 —
Lewis Brisbois(August 17, 2023) – 75 Lewis Brisbois attorneys across 25 offices have been named to the 4th edition of
"Best Lawyers: Ones to Watch in America." Congratulations to the following attorneys on this recognition!
You can see the full list of Lewis Brisbois attorneys named to Best Lawyers' 30th edition of
The Best Lawyers in America here.
Akron, OH
- Associate Meleah M. Skillern – Commercial Litigation
Atlanta, GA
- Partner Candis R. Jones - Insurance Law, Medical Malpractice Law – Defendants, and Personal Injury Litigation – Defendants
Boston, MA
- Partner Amanda Mathieu - Labor and Employment Law – Management
Charleston, WV
- Partner Sophie L. Johns - Product Liability Litigation - Defendants
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Lewis Brisbois
Untangling Unique Legal Issues in Modern Modular Construction
September 09, 2024 —
Chad Theriot & Brad Sands - Construction ExecutiveModular construction has grown significantly over the last few years and shows no signs of slowing down. This construction method is a departure from traditional approaches where all construction activity occurs onsite. Modular construction involves building standardized project components—usually in an offsite, controlled environment—which are then transported and assembled at the project site. Offsite construction generally allows for better quality control and economic efficiency, as it can utilize an assembly-line process. Modular fabrication can also centralize skilled labor in regions with lower labor costs.
Establishing each party's expectations upfront is always important, but even more so in modular construction since much of the construction activity is performed away from the ultimate project site. This requires extensive coordination among designers, fabricators, installers and owners to ensure construction, testing and quality progresses accordingly. Every field change and design clash could have an exponential impact on the modular fabrication efficiencies given the assembly-line approach and remote nature of modular work.
Reprinted courtesy of
Chad Theriot & Brad Sands, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Design, Legal and Accounting all Fight a War on Billable Hours After the Advent of AI
June 10, 2024 —
Jeff Yoders - Engineering News-RecordBillable hours have long been the professional services standard by which architects, engineers, lawyers and accountants all get paid. But What if that effort wasn’t from human toil at all? Artificial Intelligence is already chipping away at the venerable billable hours business model, completing in just minutes or seconds tasks that would take humans hours. As these tools grow more efficient and accurate, many firms are having to reevaluate how they allocate their resources, and project delivery practices may have to evolve as well.
Reprinted courtesy of
Jeff Yoders, Engineering News-Record
Mr. Yoders may be contacted at yodersj@enr.com
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Big Data Meets Big Green: Data Centers and Carbon Removal Compete for Zero-Emission Energy
October 15, 2024 —
Robert A. James, Sidney L. Fowler & Ashleigh Myers - Gravel2Gavel Construction & Real Estate Law BlogArtificial intelligence, data centers, carbon removal and zero-emission power may sound like a winning line (plus the Free Space) on a 2024 Buzzword Bingo card. But the concepts have come into dramatic real-world tension as private and public actors seek to accommodate the digital and environmental imperatives for green energy.
After years of fairly stable demand, punctuated by declines during the pandemic and economic slumps, electricity demand is projected to double by 2050. A principal cause is the rapid expansion in the power needed to energize and cool servers amid explosive growth in the number and size of data centers, crypto miners, and other point sources of computation. Data centers were 3% of U.S. demand and are projected to be up to 9% or more by 2030; AI will drive a 160% surge in data center demand by 2030. A commentator notes, “We haven’t seen [growth like] this in a generation.”
Reprinted courtesy of
Robert A. James, Pillsbury,
Sidney L. Fowler, Pillsbury and
Ashleigh Myers, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Mr. Fowler may be contacted at sidney.fowler@pillsburylaw.com
Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com
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Client Alert: California’s Unfair Competition Law (B&P §17200) Preempted by Federal Workplace Safety Law
September 24, 2014 —
R. Bryan Martin, Yvette Davis, & Kristian Moriarty - Haight Brown & Bonesteel LLPIn Solus Industrial Innovations LLC v. Superior Court (No. G047661, filed 9/22/2014) (“Solus”) the California Court of Appeal, Fourth Appellate District, held California’s Unfair Competition Law (Business & Professions Code §17200) is preempted by the federal Occupational Safety and Health Act of 1970 (“Fed/OSHA”) because the Unfair Competition law, as approved by the United States Secretary of Labor, does not include any provision for civil enforcement of workplace safety standards by a state prosecutor through a complaint for penalties.
Solus Industrial Innovations, LLC (“Solus”) is a plastics manufacturer. In 2007, Solus installed a residential water heater at its commercial facility in Orange County. The water heater exploded in March 2009, killing two workers. California’s Division of Occupational Safety and Health (“Cal/OSHA”) investigated and determined the explosion was caused by a failed safety valve and lack of any proper safety feature on the water heater. Cal/OSHA charged Solus with five violations of Title 8 of the California Code of Regulations. Because deaths were involved, Cal/OSHA forwarded the results of its investigation to the Orange County District Attorney.
In March 2012, the Orange County District Attorney filed criminal charges against Solus’ plant manager and maintenance supervisor. The District Attorney also filed a civil action against Solus, including two causes of action for violation of California Business & Professions Code §17200 – the Unfair Competition Law (“UCL”). The action sought civil penalties under the UCL in the amount of $2,500 per day, per employee, from November 29, 2007 through March 19, 2009.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
R. Bryan Martin,
Yvette Davis and
Kristian Moriarty
Mr. Martin may be contacted at bmartin@hbblaw.com
Ms. Davis may be contacted at ydavis@hbblaw.com
Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
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Louisiana Court Holds That Application of Pollution Exclusion Would Lead to Absurd Results
October 21, 2019 —
Sergio F. Oehninger & Daniel Hentschel - Hunton Insurance Recovery BlogA Louisiana court recently denied an excess insurer’s bid for summary judgment, finding that the insurer’s interpretation of a pollution exclusion would lead to “absurd results.”
Central Crude, Inc., a crude oil transporter company, experienced an oil pipeline leak, allegedly causing damage to property belonging to Columbia Gas Transmission Company. Columbia Gas sued Central Crude seeking compensatory damages and injunctive relief to compel remediation of the site. Central Crude sought coverage under a CGL primary insurance policy issued by Liberty Mutual. The insurer initially agreed to cover Central Crude’s “reasonable and necessary costs” relating to the incident, but later refused to defend or indemnify Central Crude for any costs incurred from the incident. As a result, Central Crude brought suit against Liberty Mutual and its excess insurer, Great American, to enforce coverage.
Great American moved for summary judgment arguing coverage was excluded by the excess policy’s pollution exclusion, which precludes coverage for injury “arising out of a discharge of pollutants.” Central Crude responded arguing that the exclusion’s applicability was invalidated or at least rendered ambiguous by the Following Form Endorsements, which reflect an intent to mirror the coverage afforded under the primary Liberty Mutual policy, and because coverage appears to be specifically authorized through the Premises Operations Liability Endorsement.
Reprinted courtesy of
Sergio F. Oehninger, Hunton Andrews Kurth and
Daniel Hentschel, Hunton Andrews Kurth
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com
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