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CONSTRUCTION DEFECT NEWS

AB 1701 Has Passed – Developers and General Contractors Are Now Required to Double Pay for Labor Due to Their Subcontractors’ Failure to Pay

Thursday, October 19, 2017 — Clayton T. Tanaka – Newmeyer & Dillion LLP

On September 13, 2017, the California State Legislators passed a bill that would make developers and general contractors responsible for subcontractors who fail to pay their employees even though they already paid the subcontractors for the work. Assembly Bill 1701 (AB 1701), sponsored by unions who represent carpenters and other building trades, would require general contractors to “assume, and [be] liable for . . . unpaid wage, fringe or other benefit payment or contribution, including interest owed,” which subcontractors owe their employees. Despite vehement opposition from the California Building Industry Association and the Associated General Contractors of California, this bill has been submitted to the Governor and is expected to be signed into law.

NEW REQUIREMENTS

Once signed, this bill would impose the following requirements under Labor Code section 218.7:

  • Applies to All Private Works Contracts That Are Entered Starting January 1, 2018.
  • For private works contracts entered on or after January 1, 2018, a “direct contractor” (i.e., prime contractor or contractor who has direct contractual relationship with an owner) must assume and be liable for any debt which its subcontractor or a lower tier subcontractor incurs “for [a] wage claimant’s performance of labor included in the subject of the contract between the direct contractor and the owner.” (Lab. Code, § 218.7, subds. (a)(1) and (e).)

  • The Labor Commissioner and Joint Labor-Management Cooperation Committees May Bring Action to Recover Unpaid Wages on Behalf of Wage Claimants.
  • The California Labor Commissioner and joint Labor-Management Cooperation Committees established under the federal Labor Management Cooperation Act of 1978 (29 U.S.C. § 175a) (typically comprised of labor unions and management) may bring a civil action against the direct contractor for unpaid wages owed to a wage claimant. (Lab. Code, § 218.7, subds. (b)(1) and (3).) The Labor Commissioner may also bring its claims through administrative hearings (Labor Code section 98) or by citations (Labor Code section 1197.1). (Lab. Code, § 218.7, subd. (b)(1).)

  • Third Parties That Are Owed Fringe or Other Benefit Payments or Contribution on Behalf of Wage Claimants (Labor Unions) May Bring Action.
  • Third parties who are owed fringe or other benefit payments or contributions on a wage claimant’s behalf (e.g., labor unions) may bring a civil action against the direct contractor for such unpaid benefit payments or contributions. (Lab. Code, § 218.7, subd. (b)(2).)

  • It Does Not Confer Wage Claimants With Any Right to Sue Direct Contractors.
  • AB 1701 gives the Labor Commissioner, Labor-Management Cooperation Committees and the unions standing to bring an action against the direct contractor, but it does not confer any private right of action by the wage claimants against the direct contractor.

  • Labor-Management Cooperation Committees and Labor Unions Shall Recover as Prevailing Plaintiffs Their Attorneys’ Fees and Costs, Including Expert Fees.
  • For actions brought by Labor-Management Cooperation Committees or labor unions, “[t]he court shall award a prevailing plaintiff in such an action its reasonable attorney’s fees and costs, including expert witness fees.” (Lab. Code, § 218.7, subds. (b)(2)-(3).)

  • Direct Contractor’s Property May Be Attached to Pay for Judgment.
  • AB 1701 authorizes the attachment of direct contractor’s property to pay for any judgment that is entered pursuant to this section. (Lab. Code, § 218.7, subd. (c).)

  • One-Year Statute of Limitation to Bring Action under This Section.
  • Actions brought pursuant to this section must be filed within one year of the earliest of: (1) recordation of a notice of completion of the direct contract; (2) recordation of a notice of cessation of the work covered by direct contract; or (3) actual completion of work covered by direct contract. (Lab. Code, § 218.7, subd. (d).)

  • Rights to Receive Payroll Records and Project Award Information from Subcontractors and to Withdraw All Payments Owed for Their Failure to Comply.
  • Upon the direct contractor’s request, subcontractors and lower tier subcontractors must provide payroll records and project award information. (Lab. Code, § 218.7, subds. (f)(1)-(2).) Direct contractor may withhold as “disputed” all sums owed if a subcontractor does not timely provide the requested records and information without specifying what is untimely and such failure to comply does not excuse direct contractor from any liability under this section. (Lab. Code, § 218.7, subds. (f)( 3) and (i).)

  • Rights to Receive Payroll Records and Project Award Information from Subcontractors and to Withdraw All Payments Owed for Their Failure to Comply.
  • Upon the direct contractor’s request, subcontractors and lower tier subcontractors must provide payroll records and project award information. (Lab. Code, § 218.7, subds. (f)(1)-(2).) Direct contractor may withhold as “disputed” all sums owed if a subcontractor does not timely provide the requested records and information without specifying what is untimely and such failure to comply does not excuse direct contractor from any liability under this section. (Lab. Code, § 218.7, subds. (f)( 3) and (i).)

  • Further Legislative Efforts on Subdivision (h) Are Expected in 2018.
  • Subdivision (h), which states that “[t]he obligations and remedies provided in this section shall be in addition to any obligations and remedies otherwise provided by law . . .” (emphasis added) is potentially misleading since the author and sponsor of the bill have indicated that the bill is not intended to punish direct contractors with liquidated damages or penalties. As such, further legislative efforts on subdivision (h) are expected in 2018.

ADDITIONAL CONSIDERATIONS
While workers should be paid for the work they perform, AB 1701 would place undue burden on general contractors to monitor their subcontractors’ payroll, confirm that all wages and benefits are paid timely and withhold disputed payments from non-compliant subcontractors. General contractors would also need to caution against the chain reaction that could result from such withholding, including work stoppage, increased change order requests, and an overall increase in construction costs. Finally, general contractors would need to brace themselves for at least a year after project completion against any union or a Labor-Management Cooperation Committee actions armed with a prevailing party’s right to recover attorneys’ fees and expert fees, for previously unidentified subcontractor or sub-subcontractor workers.

STRATEGIES DEVELOPERS AND GENERAL CONTRACTORS SHOULD LOOK FOR
In anticipation of AB 1701 being signed into law and its potentially harsh effects, developers and general contractors are advised to consult their attorneys for a review and revision of their existing contracts, to develop plans for accessing and monitoring subcontractor payroll records, and to consider strategies for mitigating claims that may be brought against them, as follows:

  • Execute all pending agreements
  • before January 1, 2018 to avoid the effects of AB 1701;

  • Include an audit provision
  • requiring subcontractors and sub-subcontractors to provide payroll records (at minimum, information set forth in Labor Code section 226) and project award information, regularly and/or upon request, with specific deadlines for such production, as subdivision (f) does not specify what is untimely;

  • Include defense and indemnity provisions
  • that would require subcontractors to defend and indemnify the general contractor for claims that are brought pursuant to this section arising from labor performed by employees for subcontractors and sub-subcontractors, and require subcontractors to include a similar provision in their own contracts with sub-subcontractors that would require lower tier subcontractors to also defend and indemnify the general contractor for claims arising from their respective employees’ work;

  • Require subcontractors to provide a payment bond and/or a letter of credit
  • to satisfy claims that are made against the general contractor under this section;

  • Require personal guarantees
  • from owners, partners or key subcontractor personnel;

  • Include withholding and back-charge provisions
  • that would allow general contractors to withhold or charge back the subcontractors for disputed amounts, for claims brought against them, and for failure to comply with the audit, bond, and guarantee requirements.

  • Consider implementing a system to confirm evidence of payments,
  • such as signed acknowledgment of payment by each subcontractor and sub-subcontractor employees and by third parties entitled to recover fringe and other benefit payments or contribution, possibly working with electronic billing software providers to implement such system.

Clay Tanaka is a partner in the Newport Beach office of Newmeyer & Dillion, focusing on construction, real estate, business and insurance disputes in both California and Nevada. As a licensed civil engineer, Clay has significant experience in design and construction of all types of construction projects, which he has effectively utilized in his litigation, trial and arbitration practice to obtain great results for his clients. For questions related to AB1701, please contact Clay Tanaka (clay.tanaka@ndlf.com) or Newport Beach Partner Mark Himmelstein (mark.himmelstein@ndlf.com).

Reprinted courtesy of Clayton T. Tanaka, Newmeyer & Dillion LLP

Mr. Tanaka may be contacted at clay.tanaka@ndlf.com


Recent Changes in the Law Affecting Construction Defect Litigation

Thursday, October 19, 2017 — David M. McLain - Colorado Construction Litigation

On May 23, 2017, Governor Hickenlooper signed HB17-1279 into law. The bill states that before an HOA’s executive board can institute a construction defect action, it must provide notice of the anticipated commencement of the action to each of the HOA’s unit owners, along with certain disclosures about the anticipated action. The bill also requires that the HOA executive committee convene a meeting of the unit owners to consider the action, and that the construction professionals against which the claim is being brought have the opportunity to address the members of the HOA. The bill also states that the HOA executive committee may only initiate a construction defect action if it is approved by “owners of units to which a majority of votes in the association are allocated.”

Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC

Mr. McLain may be contacted at mclain@hhmrlaw.com

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BE PROACTIVE: Steps to Preserve and Enhance Your Insurance Rights In Light of the Recent Natural Disasters

Thursday, October 19, 2017 — Jacquelyn M. Mohr – Newmeyer & Dillion LLP

Our hearts go out to those families and businesses who have suffered losses due to the recent fires, hurricanes, and other natural disasters. We hope that everyone in Sonoma, Napa, Orange County, and nationwide affected by these tragic events is somewhere safe. As someone who lost a house in a fire growing up and now is an attorney who helps both residential and business policyholders, there are a few pieces of wisdom I’d like to pass along to help prepare for the worst:

1) MAINTAIN DUPLICATES OF CRITICAL DOCUMENTS OFFSITE OR ONLINE
After the fire, you’re going to need your insurance policies and other critical documents. While it’s usually possible to request copies, this can take weeks, which will hold up your claims process. We are fortunate enough to have the technology for cloud-based storage of key documents – like your insurance policy, insurance broker contact information, tax returns, life insurance policies, will, business plan, inventories, etc. – oftentimes for free. Maintaining these records onsite during your daily life and business operations is important, but so is taking the time and trouble to make sure you have a back-up offsite. It’s easy to do, and so much easier than trying to recreate it after the fact.

2) MAKE A RECORD OF YOUR PROPERTY AND POSSESSIONS
If you are lucky enough to still be in your home or business property, I strongly recommend that you take a video of your property and possessions to keep for your records. A digital inventory with receipts would be great – but a video log will also be very helpful later.

  • For your home: This includes the furniture, artwork, appliances, jewelry, electronics, collectibles, landscaping and custom features of the inside and outside of your house.
  • For your business: This includes your furniture and artwork, your inventory and your electronics.

Look into offsite back-ups of your important electronic data – whether documents, e-mails, insurance policies, inventory logs, accounting data, client correspondence, or pictures of your kids or grandkids.

Why A Record Is Important in the Insurance Claims Process
Though I hope no one has to deal with this, a video record will make it much easier in the event of a tragedy to deal with insurance claims for two reasons:

  • It is evidence to submit to the insurance company to show exactly what your property was like before disaster struck.
    • For your home, you likely have a homeowner's insurance policy that covers your “3 bedroom, 2 bath, 2000 square foot home built in 1962,” but your insurer won’t know the quality of what is actually inside. It will be up to you to prove you had a brand new Viking stovetop, rather than a 20-year old Kitchenaid; custom built-in cabinets rather than Ikea furniture. (On this note, if you ever do any remodeling, be sure to tell your broker to make sure it's covered by your policy!)
    • For your business, your policy will similarly be generic, and the insurer will similarly insist on evidence of your business inventory, sales orders, equipment, artwork, etc. in the event of a loss.
  • A video record will also help to jog your memory to create itemized inventories to submit to the insurance company. Creating an inventory of everything lost after a casualty can be the most difficult and emotional part of the rebuilding process. I encourage you to do anything you can do now to lessen the stress later. After a traumatic loss, it’s impossible to remember everything, so most people never collect their full insurance benefits. United Policyholders, an amazing non-profit resource for policyholders, has a great app and other online tools to help create your inventory. You can find the app and other helpful information at http://www.uphelp.org/

3) CHECK YOUR POLICY

Even if you have not been personally affected by the recent disasters, these tragedies are an excellent reminder to check to make sure you are fully covered.

  • Make sure you understand what is covered under your policy, and get confirmation that you are covered for a total loss. Talk with your broker to make sure your policy limits make sense, including those for separate structures, personal property, and additional living expenses, which are usually a percentage of your dwelling coverage limit.
  • Check to make sure your personal property limits would cover your possessions– if you have a lot of artwork, jewelry, antiques, and other valuables, the standard limits might not be enough for you.
  • Consider this question: Does your additional living expense/business interruption coverage (aka the amount your insurance company will pay while your home or business property is being rebuilt) provide enough for your needs? Even if your limits/coverage made sense when you purchased the policy, things may have changed.
  • You can usually increase your other coverage limits with a quick email to your insurance broker, often with very little impact on your annual premium.

    4) DON’T BE AFRAID TO ASK FOR HELP

    As simple as it sounds, don’t be afraid to ask for help. No one expects you to be an expert on this, and pretending you don’t need assistance can cost you thousands of dollars in insurance benefits in the future. So be sure to take advantage of the resources out there so that you are fully prepared to handle whatever disaster nature sends your way.

    For any additional questions, and for help navigating the insurance claims process after a disaster, please do not hesitate to reach out.

    Jacquelyn Mohr is an associate in the Walnut Creek office of Newmeyer & Dillion, focusing in business litigation, insurance coverage, securities fraud and construction disputes. Jacquelyn can be reached at Jacquelyn.Mohr@ndlf.com or 925.988.3200.

    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.

Reprinted courtesy of Jacquelyn M. Mohr, Newmeyer & Dillion LLP

Ms. Mohr may be contacted at Jacquelyn.mohr@ndlf.com


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ASCE Tackles Climate Change in New Guide for Resilient Structures

October 19, 2017 — Pam Radtke Russell - Engineering News-Record

Insurance companies, governments and some businesses are looking to engineers to build more-resilient structures to accommodate changing climate and weather extremes. But some engineers may not know how to incorporate into their designs consistently the unknowns of future rainfall and storms.

Ms. Russell may be contacted at Russellp@bnpmedia.com

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Trump Wants to Curtail Flood Insurance in Flood-Prone Areas

October 19, 2017 — Christopher Flavelle - Bloomberg

President Donald Trump proposed ending federal flood insurance for new homes in areas most at risk of flooding, a change that could curtail new construction in vast parts of Florida, Louisiana and along the Eastern Seaboard.

Trump’s plan would radically overhaul the program created in 1968 to help protect homeowners who live along coasts or near rivers. The idea, sent by the White House to Congress, created an unlikely set of responses: Home builders warned it could stifle the economy while climate activists, who have battled Trump, called the idea smart.

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Canadian Homebuilders Are Actually Having a Breakout Year

October 19, 2017 — Theophilos Argitis - Bloomberg

For Canada’s real estate developers, 2017 is shaping up to be a comeback year.

Builders are on pace to start work on more than 215,000 new homes. That would be the most since 2007, and a rebound after four straight years below 200,000.

The strength isn’t confined to Toronto. Advances are broad-based, including sharp rebounds in the Prairies and Quebec and elevated levels in British Columbia, in addition to residential construction in Ontario that’s on pace for its best year since 2004.

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AGC’s 2018 Surety Bonding and Construction Risk Management Conference

October 19, 2017 — Beverley BevenFlorez - CDJ STAFF

The Associated General Contractor’s (AGC) annual Surety Bonding and Construction Risk Management Conference returns this January. Attendees include the sureties, bond producers, insurance carriers, insurance brokers, lawyers and other professionals. Events will include four plenary sessions, twenty breakout sessions, two receptions, and one luncheon.

January 29th-31st, 2018
Ritz-Carlton Golf Resort, Naples
2600 Tiburon Dr
Naples, FL 34109

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Arizona Supreme Court Clarifies Area Variance Standard; Property Owners May Obtain an Area Variance When Special Circumstances Existed at Purchase

Thursday, October 19, 2017 — Nick Wood, Adam Lang, Noel Griemsmann, & Brianna Long – Snell & Wilmer Real Estate Litigation Blog

In Pawn 1st v. City of Phoenix, the Arizona Supreme Court rejected a Court of Appeals rule that would have unduly restrained alienation of property in Arizona. The Court of Appeals found that the City of Phoenix Board of Adjustment acted beyond its authority when it granted an area variance to a pawn shop where the special circumstances causing a need for the variance existed before the pawn shop purchased the property. Under Arizona law, boards of adjustment cannot grant an area variance where the special circumstances requiring the variance are self-imposed. The Court of Appeals adopted a rule that knowledge of special circumstances at the time of purchase made the special circumstances self-imposed, foreclosing the purchaser’s ability to obtain a variance. This rule would have severely restricted property purchasers’ ability to obtain area variances in Arizona and by extension likely strained property transactions.

The underlying case involved a pawn shop that was proposed in southeast Phoenix. After the property purchaser obtained approval for a required use permit (for a pawn shop) and a variance (for a 500 foot residential setback) from the City of Phoenix Board of Adjustment, a competing pawn shop filed a special action arguing that the variance was a use variance, not an area variance, beyond the board of adjustment’s authority.

Reprinted courtesy of Snell & Wilmer attorneys Nick Wood, Adam Lang, Noel Griemsmann and Brianna Long
Mr. Wood may be contacted at nwood@swlaw.com
Mr. Lang may be contacted at alang@swlaw.com
Mr. Noel may be contacted at ngriemsmann@swlaw.com
Ms. Brianna may be contacted at bllong@swlaw.com


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Contract Terms Can Impact the Accrual Date For Florida’s Statute of Repose

Thursday, October 19, 2017 — William L. Doerler - White and Williams LLP

When the validity of a construction defect claim depends on whether the claim is barred by the applicable state’s statute of repose, it is important to review the statute to identify when claims subject to the statute of repose accrue. In Busch v. Lennar Homes, LLC, 219 So.3d 93 (Fla. Ct. App. (5th Dist.) 2017), the Court of Appeals of Florida clarified the accrual date for the statute of repose in cases where the accrual date depends on a construction contract’s completion date. Pursuant to Busch, the date of full performance under the contract, not the building’s purchase closing date, is the date on which claims accrue.

In Busch, Timothy Busch (Busch), pursuant to a Purchase and Sale Agreement, contracted to have Lennar Homes build him a house. Nearly ten years after closing on the home, Busch served Lennar Homes with a notice of construction defects, as required by Florida’s right-to-repair act. Shortly thereafter, but more than 10 years after the home’s closing date, Busch filed suit against Lennar Homes, alleging that there were multiple construction defects associated with the home. Lennar Homes, relying on Florida’s statute of repose, Fla. Stat. § 95.11(3)(c), filed a motion to dismiss Busch’s complaint.

Reprinted courtesy of William L. Doerler, White and Williams LLP

Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

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Connecticut Federal District Court Keeps Busy With Collapse Cases

Thursday, October 19, 2017 — Tred R. Eyerly - Insurance Law Hawaii

The federal district court for the district of Connecticut has faced a slew of collapse cases, recently dismissing several such cases.

The policies under consideration in each case cover the "entire collapse of a covered building structure" or "the entire collapse of part of a covered building structure." The collapse must be "a sudden and accidental physical loss caused by one of a list of specific causes such as defective methods or materials. In most of the recent cases, the insured alleged that the concrete in basement walls or foundations was cracking due to a chemical reaction. It was further alleged that the chemical reaction would continue to progressively deteriorate, rendering the building structurally unstable.

Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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CONSTRUCTION DEFECT NEWS

UCF Sues Architects and Contractors Over Stadium Construction Defects

Thursday, October 19, 2017 — David Suggs – Bert L. Howe & Associates, Inc.

The University of Central Florida (UCF) filed suit over alleged construction defects of their 45,000-seat arena including the claim of “premature wear of the steel,” spokesman Chad Binette stated, according to the Orlando Sentinel.

Bid documents suggest that rust may be an issue. UCF recently sought contractors for “Stadium Emergency Rust Repairs.” The Orlando Sentinel reported that the university stated “the word ‘emergency’ reflects deadlines for the football season instead of safety concerns.” Other documents also claimed ongoing rust remediation.

The UCF stadium had earned the nickname “Bounce House” from the arena “subtly swaying as fans jumped together to the song ‘Kernkraft 400’ by Zombie Nation. UCF spent hundreds of thousands of dollars in 2008 stiffening the underpinnings of the stadium by bolting additional steel to about 160 beams,” according to the Orlando Sentinel. Officials claim that the stadium was never unsafe.


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Hawaii Federal District Court Denies Brokers' MSJ on Duties Owed In Construction Defect Case

Thursday, October 19, 2017 — Tred R. Eyerly - Insurance Law Hawaii

The federal district court for the District of Hawaii denied the brokers' motion for summary judgment seeking dismissal from claims that they inadequately advised the insured of the law regarding construction defects in Hawaii. Am Auto. Ins. Co. v. Haw. Nut & Bolt, Inc., 2017 U.S. Dist. LEXIS 148571.

Safeway sued Hawaii Nut & Bolt (HNB) and others for construction defects in a newly constructed store. The underlying complaint alleged products liability claims against HNB as the distributor of the "VersaFlex Coating System." HSB had represented that the coating system was adequate for its intended use. The underlying complaint alleged failure of the VersaFlex Coating System in waterproofing the roof deck of the store. After the store opened, water leaks from the roof deck appeared. Safeway alleged they were caused by the cracks and failures in the waterproof membrane in the roof deck.

HNB notified its insurers of the claims. The insurers defended HNB during the litigation subject to reservation of rights letters.

Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Court Holds That Self-Insured Retentions Exhaust Vertically And Awards Insured Mandatory Prejudgment Interest in Stringfellow Site Coverage Dispute

Thursday, October 19, 2017 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP

In State of California v. Continental Ins. Co. (No. E064518; filed 9/29/17), a California appeals court ruled that after Continental was ultimately held to pay its policy limits for remediation of the Stringfellow hazardous waste site, the insured State of California was entitled to mandatory prejudgment interest on the full amount dating back to 1998, when a federal district court had issued a judgment under F.R.C.P. 54 declaring the State liable under both the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and state law. To get there, the state appeals court held that vertical exhaustion applied to the attachment of Continental’s excess policies.

Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com


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Wine Country Fire Deadliest in California Since 1933

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CONSTRUCTION DEFECT NEWS

Sureties and Bond Producers May Be Liable For a Contractor’s False Claims Act Violations

Thursday, October 19, 2017 — Michael C. Zisa & Susan Elliott – Peckar & Abramson, P.C.

Two recent decisions from the United States District Court for the District of Columbia and the United States Court of Federal Claims highlight that sureties and bond producers are not immune to the potentially severe consequences of the False Claims Act (“FCA”) and related federal fraud statutes. In each case, the Court determined that sureties and bond producers can face potential liability under these fraud statutes for direct and indirect submission of false claims to the federal government.

Reprinted courtesy of Michael C. Zisa, Peckar & Abramson, P.C. and Susan Elliott, Peckar & Abramson, P.C.
Mr. Zisa may be contacted at mzicherman@pecklaw.com
Ms. Elliott may be contacted at selliott@pecklaw.com



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Don’t Waive Your Right to Arbitrate (Unless You Want To!)

Thursday, October 19, 2017 — David Adelstein - Florida Construction Legal Updates

Does your construction contract require you to arbitrate (instead of litigate) disputes arising out of the contract? If so, and you want to arbitrate, you do NOT want to do anything inconsistent or adverse with your right to arbitrate. Arbitration can be waived and you do not want arbitration to be waived if you believe this is the best forum to resolve your construction dispute. For instance, actively participating in a lawsuit through the prosecution or defense of issues in the lawsuit is certainly inconsistent with your right to arbitrate. This will result in a waiver of your right to compel arbitration.

In a non-construction dispute—a dispute involving a law firm and its former partner—the law firm sued the partner. Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly D2165b (Fla. 2d DCA 2017). There was a partnership agreement that required disputes to be resolved by arbitration. The law firm sued the partner claiming he violated a previously entered employment agreement that did not require arbitration. When the partner counterclaimed, the law firm claimed that the counterclaim must be compelled to arbitration because the counterclaim arose out of the partnership agreement that required arbitration. Guess what? The trial court actually compelled the counterclaim to arbitration! Crazy! Clearly, any employment agreement and partnership agreement were intertwined such that the dispute would involve the same set of facts and any claims would have a significant relationship to the partnership agreement.

Reprinted courtesy of David Adelstein, Florida Construction Legal Updates

Mr. Adelstein may be contacted at dadelstein@gmail.com

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In Search of Cement Replacements

Thursday, October 19, 2017 — Aarni Heiskanen - AEC Business

Could we replace cement as the vital element in concrete some day? We look at two alternative answers to this question.

The Problems with Cement

Portland cement dominates in the construction and road building industries. From an environmental point of view, cement is not the perfect solution. The cement industry accounts up to 7% of the world’s carbon dioxide emissions. For every 600 kg of cement, approximately 400 kg of CO2 is released into the atmosphere.

It is possible to recycle concrete by crushing it and using the gravel e.g. in road construction. However, the demand for new concrete is huge and increasing. According to The Washington Post, China used more cement between 2011 and 2013 than the U.S. used in the entire 20th Century. The worldwide production of cement has increased from 3.3 billion tons in 2010 to 4.2 in 2016. Even that is not enough; shortage of cement is a real problem in some countries.

Reprinted courtesy of Aarni Heiskanen, AEC Business

Mr. Heiskanen may be contacted at info@aepartners.fi

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Lessons from the Sept. 19 Mexico Earthquake

Thursday, October 19, 2017 — Nadine M. Post - Engineering News-Record

On the 32nd anniversary of the magnitude-8.1 earthquake that devastated Mexico City on Sept. 19, 1985, 41 U.S. seismic experts were in a workshop near Los Angeles, polishing a new tool to identify “killer” buildings: non-ductile concrete structures that often perform poorly in quakes. Suddenly, the attendees started getting pager alerts from the U.S. Geological Survey: A magnitude-7.1 quake had struck about 120 kilometers from Mexico City.

Reprinted courtesy of Nadine M. Post, ENR

Ms. Post may be contacted at postn@enr.com

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