Drafting a Contractual Arbitration Provision

Business people meeting-brainstorming with notebook and technology

Understanding the distinction between the two types of arbitration provisions is important.

February 11, 2019
David Adelstein - Florida Construction Legal Updates

A recent Florida case discussing a contractual arbitration provision in a homebuilder’s contract discussed the difference between a narrow arbitration provision and a broad arbitration provision. See Vancore Construction, Inc. v. Osborn, 43 Fla.L.Weekly D2769b (Fla. 5th DCA 2018). Understanding the distinction between the two types of arbitration provisions is important, particularly if you are drafting and/or negotiating a contractual arbitration provision.

A narrow contractual arbitration provision includes the verbiage “arises out of” the contract such that disputes arising out of the contract are subject to arbitration. Arbitration is required for those claims the have a direct relationship with the contract.

Mr. Adelstein may be contacted at dma@kirwinnorris.com


Tucson ABA Insurance Coverage Seminar Coming Soon

February 11, 2019
Tred R. Eyerly - Insurance Law Hawaii

The dates for this year's ABA Insurance Coverage Litigation Committee CLE Seminar in Tucson are February 27 to March 2, 2019. Again this year, the seminar promises to provide cutting edge CLE programming and many networking opportunities. I will be on a panel addressing "Changing Climate, Changing Risks and Policies," with my esteemed colleagues, Rina Carmel, Esq., Karin S. Aldama, Esq., and Demetrius E. Rush, Esq.

Registration information is here. If you have any interest in coverage issues, this is the event to attend.


Bailout for an Improperly Drafted Indemnification Provision

Unique red block standing out among white blocks

An otherwise invalid indemnification clause is bailed out by a ruling.

February 11, 2019
David Adelstein - Florida Construction Legal Updates

A recent opinion came out that held that even though an indemnification provision in a subcontract was unenforceable per Florida Statute s. 725.06, the unenforceable portion is merely severed out of the indemnification clause leaving the rest of the clause intact. In essence, an otherwise invalid indemnification clause is bailed out by this ruling (which does not even discuss whether this subcontract had a severability provision that states that if any portion of any provision in the subcontract is invalid, such invalid portion shall be severed and the remaining portion of the provision shall remain in full force and effect).

This opinion arose from a construction defect case, CB Contractxors, LLC v. Allens Steel Products, Inc.,43 Fla.L.Weekly D2773a (Fla. 5thDCA 2018), where the general contractor, sued by an association, flowed down damages to subcontractors based on the contractual indemnification provision in the subcontracts. Subcontractors moved to dismiss the contractual indemnification claim because it was not compliant with Florida Statute s. 725.06. The indemnification provision required the subcontractors to indemnify the general contractor even for the general contractors own partial negligence, but failed to specify a monetary limitation on the extent of the indemnification as required by Florida Statute s. 725.06. (The indemnification clause in the subcontract was the standard intermediate form of indemnification that required the subcontractor to indemnify the general contractor for claims regardless of whether the claims were caused in part by the general contractor.)

Mr. Adelstein may be contacted at dma@kirwinnorris.com


The Law Clinic Paves Way to the Digitalization of Built Environment Processes

Businessman holding finger on digital skyline model

The Law Clinic collects and analyzes information on legal problems and identifies laws that may slow down or impede digitalization in the built environment.

February 11, 2019
Aarni Heiskanen - AEC Business

The Law Clinic offers legal advice on digitalization to built environment innovators and experimenters and in the process helps lawmakers find the pain points in legislation.

In April 2018 the Finnish Ministry of the Environment launched an experimental legal service for real estate and construction professionals, municipalities, and lawmakers.

The cost-free service is like a helpdesk for anyone who has questions about real estate and construction laws and regulations and their interpretation as it applies to new digital processes. The Law Clinic is part of the national KIRA-digi project, which includes 138 experiments, many of which need legal advice for their execution.

Mr. Heiskanen may be contacted at aec-business@aepartners.fi


EPA Announces that January 2017 Revised RMP Rules are Now Effective

Construction worker holding shovel planting tree

EPA indicates it will carefully use its enforcement discretion until new rules are in place.

February 6, 2019
Anthony B. Cavender - Gravel2Gavel

On December 3, the Environmental Protection Agency (EPA) published a Federal Register notice advising the regulated community that EPA’s controversial Clean Air Act (CAA) stationary source Risk Management Program (RMP) rules are effective as of December 3, 2018 – the Final Rule: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act (83 FR 62268). The initial package of the RMP rules was promulgated in 1996, but a series of chemical explosions prompted the development of new rules, whose process safety, third party auditing, emergency response, preparedness and information sharing provisions were designed to confront these challenges.

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com


Taking Care of Infrastructure – Interview with Marilyn Grabowski

Bridge

Grabowski continues to grow the Atlantic Infrared footprint and plans to expand beyond New Jersey.

February 6, 2019
Aarni Heiskanen - AEC Business

Marilyn Grabowski leads Atlantic Infrared with a mission to protect and improve infrastructure. In this interview, we discuss her professional background, the technologies that her team uses, and why more women should consider construction as a career.

Marilyn Grabowski, known as “The Lady in Red”, and her team Atlantic Infra employees dubbed “The Red Crew” have been seamlessly filling potholes across the state of New Jersey since 2002. Under her leadership, The Red Crew uses infrared technology and unfailing attention to detail to expertly repair potholes, failed utility cuts and sunken trenches with no break in the road – creating safe and aesthetically pleasing repairs statewide, at a clip of 15,000 potholes per year.

Mr. Heiskanen may be contacted at aec-business@aepartners.fi


NBI Seminar: Real Estate Law Boot Camp

February 6, 2019
Beverley BevenFlorez – CDJ Staff

This two-day seminar will cover topics such as real estate transactions; gain an understanding of title and title insurance; delve into the basics of easement, boundary, land use issues and much more. Attendees will include Attorneys, Real Estate Agents/Brokers, Title Professionals, Lending Professionals, Engineers, Surveyors, and Paralegals.

February 11th-12th, 2019
Town & Country Inn and Suites
2008 Savannah Highway
Charleston, SC 29407


Supreme Court Rejects “Wholly Groundless” Exception to Question of Arbitrability

Red block among white blocks symbolizing exception

An arbitrator, and not the courts, will decide questions of arbitrability where parties have contracted for such a result.

February 6, 2019
Justin Fortescue - White and Williams LLP

In newly appointed Supreme Court Justice Brett Kavanaugh’s first opinion, the United States Supreme Court held that the “wholly groundless” exception to arbitrability, which some federal courts had relied on as justification to decide questions of arbitrability over the express terms of a contract, was inconsistent with the Federal Arbitration Act and Supreme Court precedent. Based on this decision, where a contract delegates the question of arbitrability to an arbitrator, courts must respect the parties’ contract and refer the question to the arbitrator. Schein v. Archer & White, 586 U.S. __ (2019).

In Schein, Archer & White brought a lawsuit against Henry Schein alleging violations of federal and state antitrust laws and seeking both monetary damages and injunctive relief. The relevant contract between the parties contained an arbitration provision that provided:

“Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief . . .) shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association.”

Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com


What Makes a Great Lawyer?

Two businesswomen talking

Danielle Carter presents five tips to help good lawyers enhance client outcomes and excel within their profession.

February 6, 2019
Danielle Carter - Bremer Whyte Brown & O'Meara LLP

Good lawyers have mastered and understand the analytical and communication skills taught in law school, but great lawyers build upon this foundation by continuing to develop traits and skills for success. Here are five tips to help good lawyers enhance client outcomes and excel within their profession.

Be Objective

Lawyers cannot be effective advocates unless they are first willing to perceive and analyze problems from all angles. Lawyers must discern strong claims from weak; urgent concerns from long-term; and large issues from small. A lawyer who adopts the tone of an emotionally-charged client risks alienating the court and jury.

Ms. Carter may be contacted at info@bremerwhyte.com


Existence of “Duty” in Negligence Action is Question of Law

Law books on bookshelf

In a negligence action, the issue of whether a duty applies is a question of law.

February 6, 2019
David Adelstein - Florida Construction Legal Updates

In a negligence action, the issue of whether a duty applies is a question of law. See Limones v. School Dist. of Lee County, 161 So.3d 384, 389 (Fla. 2015) (“[T]he existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.”); McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) (“Since duty is a question of law, an appellate court obviously could reverse based on its purely legal conclusion that no such duty existed.”). Thus, the trial court determines, as a matter of law, whether a legal duty of care applies in a negligence action.

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.
See id.

Oftentimes it is the fourth source – the general facts of the case – that comes into play to determine whether the defendant owed the plaintiff a duty of care.

Mr. Adelstein may be contacted at dma@kirwinnorris.com


John Aho: Engineer Pushed for Seismic Safety in Alaska Ahead of 2018 Earthquake

Illustration of house sitting on crack

John Aho is one of ENR's 2018 Top 25 Newsmakers.

February 6, 2019
Christine Kilpatrick - Engineering News-Record

The son of a pioneer bush pilot in Alaska, structural engineer John Aho spent decades working toward earthquake preparedness. He helped found a key seismic safety commission in the state, and serves on the City of Anchorage’s geotechnical advisory group. The fruits of his labor were clearly demonstrated on the morning of Nov. 30, when the magnitudes 7.0 and 5.7 earthquakes that struck the city caused limited structural damage, partly due to stringent building requirements.

Ms. Kilpatrick may be contacted at kilpatrickc@enr.com


California Court of Appeal Holds That the Right to Repair Act Prohibits Class Actions Against Manufacturers of Products Completely Manufactured Offsite

Forklift in manufacturing facility

The Kohler Co. case narrowed plaintiffs’ ability to use the Act to pursue class action claims.

February 6, 2019
Gus Sara - The Subrogation Strategist

In Kohler Co. v. Superior Court, 29 Cal. App. 5th 55 (2018), the Second District of the Court of Appeal of California considered whether the lower court properly allowed homeowners to bring class action claims under the Right to Repair Act (the Act) against a manufacturer of a plumbing fixture for alleged defects in the product. After an extensive analysis of the language of the Act, the court found that class action claims under the Act are not allowed if the product was completely manufactured offsite. Since the subject fixture was completely manufactured offsite, the Court of Appeal reversed the lower court’s decision. The court’s holding establishes that rights and remedies set forth in the Right to Repair Act are not available for class action claims alleging defects in products completely manufactured offsite.

In Kohler Co., homeowners instituted a class action against Kohler, the manufacturer of water pressure and temperature regulating valves that were installed into their homes during original construction. The class action was filed on behalf of all owners of residential dwellings in California in which these Kohler valves were installed as part of original construction. The complaint asserted, among other claims, a cause of action under the Act. Kohler filed a motion for anti-class certification on the ground that causes of actions under the Act cannot be certified as a class action. The trial court denied the motion with respect to the Act but certified its ruling for appellate review. Kohler filed a petition with the Court of Appeals, arguing that certain sections of the Act explicitly exclude class action claims under the Act.

Mr. Sara may be contacted at sarag@whiteandwilliams.com


Updates to the CEQA Guidelines Have Been Finalized

Update keyboard key

The amendments are the most comprehensive update to the CEQA Guidelines since 1998.

February 6, 2019
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

The California Natural Resources Agency (CNRA) recently posted final adopted text for amendments to the CEQA Guidelines. The result of over five years of development efforts by the Governor’s Office of Planning & Research and CNRA, the amendments are the most comprehensive update to the CEQA Guidelines since 1998. In “Natural Resources Agency Finalizes Updates to the CEQA Guidelines,” Pillsbury environmental attorneys Norman F. Carlin, Kevin Ashe and Eric Moorman explore the wide range of issues covered in the amendments, including the new Vehicle-Miles-Traveled (VMT) methodology for analyzing transportation impacts; use of regulatory standards as significance thresholds; environmental baselines; and numerous procedural and technical improvements.


IoT: Take Guessing Out of the Concrete Drying Process

Concrete

An experimental project recently used IoT sensors and AI to determine when it is safe to start finishing concrete surfaces.

February 6, 2019
Aarni Heiskanen - AEC Business

Flooring, tiling, or painting on a concrete surface that is insufficiently dry can end up being a disaster. An experimental project recently used IoT sensors and AI to determine when it is safe to start finishing concrete surfaces.

Haste and Imperfect Conditions Lead to Failure

To successfully first cure and then dry concrete requires specific conditions. You need to maintain a temperature higher than 10°C and a relative humidity of greater than 80 percent in the concrete.

Once the concrete is hardened, you have to make sure that it is dry enough for finishing. Typically, the relative humidity should not exceed 82 percent. Some flooring materials require a humidity of less than 75 percent for successful application.

Mr. Heiskanen may be contacted at aec-business@aepartners.fi


Assessing SB 35—Success or Failure?

February 6, 2019
Robert Howard, Alexander Walker, & Matt Olhausen - Gravel2Gavel

In September 2017, the California legislature and Gov. Jerry Brown enacted Senate Bill 35 (SB 35) to streamline housing development in cities that are not meeting their housing needs. SB 35 is aimed at easing California’s severe housing shortage and affordability crisis but was highly controversial due to concerns about loss of local control over housing development. In the year since SB 35 was enacted, several development projects in the San Francisco Bay Area have invoked SB 35 to bypass local opposition or cumbersome permitting timelines.

Reprinted courtesy of Pillsbury Law attorneys Robert Howard, Alexander Walker and Matt Olhausen
Mr. Howard may be contacted at robert.howard@pillsburylaw.com
Mr. Walker may be contacted at alexander.walker@pillsburylaw.com
Mr. Olhausen may be contacted at matt.olhausen@pillsburylaw.com


ADA Compliance Checklist For Your Business

Disabled symbol on blue background

Failure to comply with the ADA can result in serious fines or monetary damages.

February 6, 2019
Danielle Carter - Bremer Whyte Brown & O'Meara LLP

The Americans with Disabilities Act (ADA) protects people with disabilities against discrimination in three important settings:

1. Employment (ADA Title I)
2. Government Services and Public Transportation (ADA Title II)
3. Commercial Facilities and Places of Public Accommodation (ADA Title III)

Since business owners typically act as both employers and facility managers, they must pay careful attention to Title I and Title III of the ADA. A business owner’s ADA compliance checklist should include the following:

1. ADA Compliance Audit for Structural Accessibility. The ADA and its accompanying regulations set forth detailed legal standards and requirements for accessible design, which specify, for example, the minimum width of doors to conference rooms, the maximum height of public drinking fountains, and the maximum thickness of hallway carpeting. Many older buildings were built without features that accommodate people with disabilities, such that the ADA may require improvements to be made to existing facilities.

Ms. Carter may be contacted at info@bremerwhyte.com


Kansas City Airport Terminal Project Faces Delays, Rising Costs

Money-Time-Quality Triangle with Money Highlighted

Kansas City Airport Project under review over budget issues.

February 6, 2019
Kansas City Star - Engineering News-Record

Costs have long since blown past initial estimates, prompting an independent review of the price tag. Its opening is eight months behind schedule and mounting delays drew heated questions from local officials last year.
Sounds like the continuing saga of Kansas City's planned airport terminal, overwhelmingly approved by voters in November 2017 . It's actually about the new international arrivals facility under construction at Seattle-Tacoma International Airport , or Sea-Tac.

ENR may be contacted at ENR.com@bnpmedia.com


Leo Sveikauskas: Federal Economist Leads Design of a More Reliable Construction Productivity Measure

February 6, 2019
Alisa Zevin - Engineering News-Record

Leo Sveikauskas, research economist in the U.S. Bureau of Labor Statistics’ Division of Productivity Research and Program Development, had been thinking about issues in measuring construction productivity after a discussion with peers in that unit of BLS, part of the U.S. Labor Dept.

Ms. Zevin may be contacted at zevina@enr.com


More on Fraud, Opinions and Contracts

Contract written on page in typewriter

Christopher G. Hill discusses his case Environmental Staffing Acquisition Corp. v. Beamon, et. al.

February 6, 2019
Christopher G. Hill - Construction Law Musings

Here at Construction Law Musings, I have discussed the interaction between fraud and contracts on many occasions. Recently, I got to put my advice into action. I am counsel for the plaintiff in the matter of Environmental Staffing Acquisition Corp. v. Beamon, et. al. in the Portsmouth, VA Circuit Court and recently got a great opinion (.pdf) right on point that was recently featured in Virginia Lawyers Weekly.

The basic facts are these. My client, Environmental Staffing (En-Staff) filed a Little Miller Act claim and a claim for breach of contract for Beamon’s failure to pay for temporary staffing that En-Staff provided it at the Jeffry Wilson housing project demolition in Portsmouth, VA. Beamon then counterclaimed for fraud and breach of contract claiming that some statements to the effect that a particular supervisor was qualified along with presentation of the individual’s resume constituted fraud. My client demurred to the two fraud counts (actual and constructive).

Mr. Hill may be contacted at chrisghill@constructionlawva.com


Don’t Just Document- Document Right!

Businessman writing notes on clipboard

AMEC’s notice of intent to make a claim was proper under the Virginia Code even if it was not in the proper form.

February 6, 2019
Christopher G. Hill - Construction Law Musings

I have stated to clients on many occasions that paper is a lawyer’s best friend. Because of a recent case from the Virginia Supreme Court, I should modify that to the correct paper is a lawyer’s best friend. In Commonwealth v. AMEC Civil, LLC, AMEC sued the Virginia Department of Transportation (“VDOT”) seeking more than $21 million in damages. The Mecklenburg County Circuit Court granted AMEC almost all of its damages and found that AMEC’s notice of intent to make a claim was proper under the Virginia Code even if it was not in the proper form.

Mr. Hill may be contacted at chrisghill@constructionlawva.com



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