Nonparty Discovery in California Arbitration: How to Get What You Want

Businessman with arms crossed

This article explores the challenges presented by third party discovery in arbitration.

January 8, 2019
Leilani L. Jones - Payne & Fears

Opting for arbitration requires attorneys to balance efficiency and procedural protections. The implications of arbitration are something clients certainly have to carefully consider both when drafting arbitration provisions, and after initiating a demand. While arbitration can in many respects streamline the civil discovery process, one of the largest roadblocks for cases in California arbitrations is “streamlining” discovery from nonparties. This article explores the challenges presented by third party discovery in arbitration, and proposes strategies for obtaining such discovery efficiently and expeditiously.

Ms. Jones may be contacted at llj@paynefears.com


Are You Taking Full Advantage of Available Reimbursements for Assisting Injured Workers?

Copy of one dollar bill

The Washington Stay At Work Program, is open to employers who pay workers compensation premiums to the Department of Labor and Industries.

January 8, 2019
Jonathan Schirmer - Ahlers Cressman & Sleight PLLC

Workplace injuries are an increasingly expensive cost of doing business. While every business does their best to avoid these injuries, even the most prepared employers must deal with them on occasion. The costs associated with these injuries—increased worker’s compensation premiums, decreased productivity, hiring temporary employees, and the loss of experienced workers—can be mitigated by shrewd employers taking full advantage of available assistance programs.

Mr. Schirmer may be contacted at jonathan.schirmer@acslawyers.com


Unqualified Threat to Picket a Neutral is Unfair Labor Practice

Picket line, red illustration

The case involved area standards picketing by the IBEW of a project owned by the Las Vegas Convention and Visitors Authority (LVCVA).

January 8, 2019
Wally Zimolong - Supplemental Conditions

On December 27, 2018, the National Labor Relations Board enforced a decades old policy that a union’s unqualified threat to picket a neutral employer at a “common situs” a/k/a a construction site is a violation of the National Labor Relations Act.

Background

The case involved area standards picketing by the IBEW of a project owned by the Las Vegas Convention and Visitors Authority (LVCVA). The IBEW sent a letter to various affiliated unions who were working on the project advising them of its intent to engage in area standards picketing at the project directed to the merit shop electrical subcontractor performing work there. The IBEW also sent a copy of the letter to the LVCVA.

Mr. Zimolong may be contacted at wally@zimolonglaw.com


Massachusetts Roofer Killed in Nine-story Fall

Three contractors on roof making repairs

Roofer falls through hole into an elevator shaft in a building under construction.

January 8, 2019
Johanna Knapschaefer - Engineering News-Record

A 41-year-old roofer from Haverhill, Mass. fell through a roof hole nine stories to his death on Dec. 18 while working on an apartment building project in Haverhill, a city north of Boston.

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


Insurer Liable for Bad Faith Despite Actions of Insured Contributing to Excess Judgment

Businesswoman looking pensive

The District Court held that where the insured's own actions or inactions result, at least in part, in an excess judgment, the insurer cannot be held liable for bad faith.

January 2, 2019
Tred R. Eyerly - Insurance Law Hawaii

Reversing the intermediate appellate court, the Florida Supreme Court held the insurer liable for bad faith despite imperfect actions by the insured. Harvey v. GEICO Gen. Ins. Co., 2018 Fla. LEXIS 1705 (Fla. Sept. 20, 2018).

Insured James Harvey was involved in an auto accident in which the other driver, 51 year old John Potts, was killed. Harvey's vehicle was registered in both his name and his business's name, and was covered under a $100,000 liability policy. Harvey reported the accident to his insurer, GEICO. The claim was assigned to a claims adjuster, Fran Korkus.

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


New California Construction Law for 2019

Legislation on typewriter

This article summarizes some of the more important bills affecting contractors in their roles as contractors.

January 2, 2019
Daniel F. McLennon - Smith Currie

The California Legislature introduced over 2637 bills in the second half of the 2017-2018 session. This article summarizes some of the more important bills affecting contractors in their roles as contractors, effective January 1, 2019, unless otherwise noted. Not addressed here are many other bills that will affect contractors in their roles as businesses, taxpayers, and employers. Each of the summaries is brief, focusing on what is most important to contractors. Because not all aspects of these bills are discussed, each summary’s title is a live link to the full text of the referenced bills for those wanting to explore the details of the new laws.

Mr. McLennon may be contacted at dfmclennon@smithcurrie.com


The California Legislature Return the Power Back to the People by Passing the California Consumer Privacy Act of 2018

Businessman holding tablet

California is the first state to introduce privacy protection for individuals personal data and could pave the way for other states to follow suit in the near future.

January 2, 2019
Richard H. Glucksman, Esq., David A. Napper, Esq., & Lana Halavi – Chapman Glucksman Dean Roeb & Barger

Introduction

Data breaches and social media hacks are becoming increasingly common stories on the news cycle. Meanwhile, companies have made fortunes on unsuspecting individuals by selling information gathered on the user. Every internet user has wondered why a pop-up ad or banner on an unrelated website relates to something you purchased or searched for "that one time. The California legislature has decided to return some power back to the people with the California Consumer Privacy Act of 2018. California is the first state to introduce privacy protection for individuals personal data and could pave the way for other states to follow suit in the near future.

The California Consumer Privacy Act of 2018

On June 28, 2018, California Governor Jerry Brown signed into law the California Consumer Privacy Act of 2018 ("the Act"). The California Legislature eagerly passed the Act, which comes into effect on January 1, 2020, granting broad new privacy rights to "consumers" and enforcing requirements on the protection of their personal data allowing consumers the right to take back control of their personal information.

A "consumer" is defined as a "resident of California as defined by California's personal income tax regulations. "Personal information" pursuant to the Act is defined as "information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household." Personal information is generally recognized in California as information that can identify a specific individual. The Act also includes information that can be used to identify a household.

Provisions of the Act

Pursuant to the Act, consumers are given the right to know upon request if their personal information is disclosed, and to whom it is disclosed, the right to know what personal information has been collected about them by a business, the right to object to the sale of their personal information, the right to obtain data collected about them, the right to require businesses to obliterate their personal information, and the right to be given equal service and pricing from businesses, including equal prices and quality of goods or services. The Act forbids discrimination by businesses against consumers for exercising their privacy rights pursuant to the Act.

Businesses are, however, permitted to charge different prices or provide different quality of service to consumers if the difference is "reasonably related to the value provided to the consumer by the consumer’s data." Additionally, businesses must allow consumers to exercise their rights by providing to consumers toll-free telephone numbers and/or websites to request such information or privacy. If a consumer sends a verified request for information to a business, the business subsequently has 45 days to give the consumer the requested information from the preceding 12 months with no charge to the consumer.

Who Must Comply with the Act

The Act will apply to for-profit businesses that do business in the State of California, deal with personal information of California residents, and either·(1) have more than $25 million in annual gross revenues, or (2) receive or disclose more than 50,000 California residents' personal information, or(3) derive 50% or greater of California residents' annual revenues from selling their personal information.

Who is Exempted from Compliance with the Act

A for-profit company, a small company, and/or a company that does not derive large amounts of personal information and does not share a brand with an affiliate covered by the Act is exempted from complying with the Act. Additionally, a company is exempted from compliance with the Act "if every aspect of . . . commercial conduct takes place wholly outside of California," meaning: (1) the personal information was collected from the consumer while they were outside California, (2) no sale of their personal information took place in California, and (3) there was no sale of personal information that was collected while the consumer was in California.

Impact

According to 2017 estimates, California's population totaled approximately 39 million people. Clearly the Act will affect an incredibly large amount of people considering it concerns the most populous state in America. The California Consumer Privacy Act of 2018, which is being compared to the EU General Data Protection Regulation for its all-encompassing method and resilient privacy protections is also speculated to have an impact on businesses throughout the nation and around the world. While the costs will likely go up for companies to do business in California, the transparency and trust earned by business and gained by consumers in this new landscape could potential overcome the initial costs to provide these required services. Perhaps most importantly however, is if California consumers decide to take advantage of the new protections, they will no longer have to wonder what for-profit businesses are doing with their data.

Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys Richard H. Glucksman, David A. Napper and Lana Halavi
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com


Massachusetts SJC Clarifies “Strict Compliance” Standard in Construction Contracts

Red pencil on construction contract

Massachusetts contract drafters, contractors, and owners should pay close attention to terms relating directly to the design or construction of a particular project.

January 2, 2019
Jacob Goodelman - Gordon & Rees Construction Law Blog

In Massachusetts, it is well established that a contractor cannot recover damages from a construction contract without first showing that the contractor completely and strictly performed on all of the contract’s terms. Recently, the Massachusetts Supreme Judicial Court narrowed the rule by concluding that complete and strict performance is only required for contract terms relating to the design and construction itself. The high Court explained that non-design / non-construction contract terms are governing by “ordinary contract principles, including the traditional Massachusetts materiality rule.”

Mr. Goodelman may be contacted at jgoodelman@grsm.com


Planned Everglades Reservoir at Center of Spat Between Fla.'s Gov.-Elect, Water Management District

Water droplet

"I think they have been derelict in their duties," said U.S. Rep. Brian Mast.

January 2, 2019
Miami Herald - Engineering News-Record

Dec. 11 -- Florida's incoming governor stopped short of demanding South Florida water managers step down over a contentious land deal with sugar farmers, saying he would instead await a recommendation from his transition team. That doesn't mean their days may not be numbered.

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


Florida Ranks First on Merit Shop Scorecard; Illinois Remains Last

January 2, 2019
Joanna Masterson - Construction Executive

Florida jumped from ninth place to first place on Associated Builders and Contractors’ 2018 Merit Shop Scorecard based on the state’s free enterprise and open competition approach to the construction sector, increased career and technical education opportunities, and job growth rates. Now in its fourth year, the scorecard rates laws, programs, policies and statistics to highlight states that have created the conditions for growth and identify areas where strategic improvements are needed.

Reprinted courtesy of Joanna Masterson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


Connecticutt Class Action on Collapse Claims Faces Motion to Dismiss

Illustration of lawyer standing before judge black and white

The issues would be better addressed when the motion for class certification was considered, after more development of the record in the case.

January 2, 2019
Tred R. Eyerly - Insurance Law Hawaii

The federal district court dismissed some insurers from a class action suit alleging failure to provide coverage for collapse claims. Halloran v. Harleysville Preferred Ins. Co., 2018 U.S. Dist. LEXIS 179807 (D. Conn. Oct. 19, 2018).

A class of homeowners brought suit in 2016 against their homeowners insurance companies ("defendants") for failure to cover collapse claims. Plaintiffs alleged they bought their homes between 1984 and 2015. Each of the homes had basement walls that were "crumbling and cracking due to the oxidation of certain minerals contained in the concrete." As a result of the deteriorating concrete, plaintiffs claimed that their basement walls were in a state of collapse.

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


Five Keys to Driving Digital Transformation in Engineering and Construction

Digital tunnel

In the next 10 years, Boston Consulting Group estimates annual global cost savings will reach up to $1.2 trillion for nonresidential projects alone.

January 2, 2019
Rob Phillpot - Construction Executive

Engineering and construction companies increasingly find themselves navigating an era of disruptive and transformative change driven by technology. And with the industry going strong and construction employment recently reaching a 10-year high, more companies recognize that it is time to embrace the efficiencies digital transformation brings, in large part to protect or enhance their competitive position.

A report from the Global Industry Council notes that modern technology is moving to the strategic center of E&C business models as part of an evolutionary process.

Reprinted courtesy of Rob Phillpot, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


Construction Nov. Jobless Rate Drops Year-Over-Year, Up Vs. Oct.

January 2, 2019
Tom Ichniowski – Engineering News-Record

Construction’s November unemployment rate fell sharply from the year-earlier level but rose slightly from October’s mark as the industry added a modest 5,000 jobs during the month, the federal Bureau of Labor Statistics says.

Mr. Ichniowski may be contacted at ichniowskit@enr.com


Contractual Waiver of Consequential Damages

Businessman holding contract

What if the provision just states that the parties mutually agree to waive consequential damages or that one party waives consequential-type damages against the other party?

January 2, 2019
David Adelstein - Florida Construction Legal Updates

Contractual waivers of consequential damages are important, whether they are mutual or one-sided. I believe in specificity in that the types of consequential damages that are waived should be detailed in the waiver of consequential damages provision. Standard form construction agreements provide a good template of the types of consequential damages that the parties are agreeing to waive.

But, what if there is no specificity in the waiver of consequential damages provision? What if the provision just states that the parties mutually agree to waive consequential damages or that one party waives consequential-type damages against the other party? Let me tell you what would happen. The plaintiff will argue that the damages it seeks are general damages and are NOT waived by the waiver of consequential damages provision. The defendant, on the other hand, will argue that the damages are consequential in nature and, therefore, contractually waived. FOR THIS REASON, PARTIES NEED TO APPRECIATE WHAT DAMAGES ARE BEING WAIVED OR LIMITED, AND POTENTIALLY THOSE DAMAGES NOT BEING WAIVED OR LIMITED, WHEN AGREEING TO A WAIVER OF CONSEQUENTIAL DAMAGES PROVISION!

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


How the New Dropped Object Standard Is Changing Jobsite Safety

Contractor pinning safety

Five percent of all fatalities on jobsites are due to falling objects.

January 2, 2019
Derek Rose - Construction Executive

In the United States, a dropped object injures a worker every 11 minutes—equating to nearly 50,000 cases every year. For those who seek medical treatment for these types of injuries, it can cost an average of $42,000. In fact, 5 percent of all fatalities on jobsites are due to falling objects, according to the Bureau of Labor Statistics.

These statistics highlight the overwhelming importance of dropped object prevention. OSHA already identifies dropped object incidents under the category of “Struck by Object” in its widely recognized “Fatal Four” list of the four leading causes of fatalities in the construction industry.

Reprinted courtesy of Derek Rose, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


Serious Dump and Ready-Mix Delivery Truck Accidents Edge Higher

January 2, 2019
Scott Van Voorhis – Engineering News-Record

Serious accidents involving dump trucks and ready-mix concrete delivery trucks continue to edge up, part of a persistent, multi-industry problem with poor driving habits that has not yet responded to increased fleet and vehicle insurance premiums. Federal regulators and industry safety experts have sought to cut the accidents by limiting driver fatigue and using technology to keep a closer tab on what happens on the road.

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


New York Appellate Court Affirms 1966 Insurance Policy Continues to Cover WTC Asbestos Claims

Judge at court illustration

An intermediate appellate court agreed that coverage is triggered for claims tied to alleged asbestos exposure at the WTC site in the 1960s and ’70s.

January 2, 2019
Michael S. Levine & Joshua S. Paster - Hunton Andrews Kurth

In a prior post, we discussed a New York trial-court decision that found an insurance policy issued in 1966, to insure the construction of the World Trade Center, continues to cover modern-day asbestos claims, with each claim constituting an individual occurrence. Last week, in American Home Assurance Co. v. The Port Authority of N.Y. and N.J., 7628-7628A (1st Dep’t Nov. 15, 2018), an intermediate appellate court affirmed that decision, agreeing that coverage is triggered for claims tied to alleged asbestos exposure at the WTC site in the 1960s and ’70s.

Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Joshua S. Paster, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Paster may be contacted at jpaster@HuntonAK.com


Drones Give Inspectors a Closer Look at Bridges

Bridge

Michael Baker International inspectors are using power seats and drones to assess bridge conditions.

January 2, 2019
Aileen Cho - Engineering News-Record

Ted Zoli, national chief bridge engineer with HNTB, compares bridge inspections to taking his kids to the doctor. “Every few years you take another set of pictures of the bridge, and ultimately you can pattern it. You pay attention in a deeper way to responses, and have a record.” But like parents who don’t want to send kids to the doctor at the first sign of a sniffle, once managers understand the characteristics of a bridge and its behavior, they don’t need to do constant in-depth reinspections. They are constantly looking for ways to make better decisions with the data they already have. “We spend a lot of money inspecting bridges,” says Zoli. “The question becomes whether there is a more technologically efficient way to do it.”

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


A Practical Guide to the Davis-Bacon Act

January 2, 2019
Beverley BevenFlorez - CDJ STAFF

A special one-day program for those involved with Government contract labor and wage requirements— personnel professionals, contract managers, compliance officials, legal counsel and financial personnel. Attendees will learn In-depth analysis of the Act’s requirements regarding wage rates and their impact on your daily activities, Dispute and problem resolution, Analyses of pending and proposed legislative initiatives, and Effective compliance procedures.

April 12, 2019
Hyatt Place Denver Downtown
440 14th Street
Denver, CO 80202


New Evidence Code Requires Attorney to Obtain Written Acknowledgement that the Confidential Nature of Mediation has been Disclosed to the Client

Two business people discussing topic

Senate Bill ("SB") 954, was recently passed and thereafter approved by the Governor on September 11, 2018.

January 2, 2019
Steven J. Pearse, Esq. & David A. Napper, Esq. – Chapman Glucksman Dean Roeb & Barger

Senate Bill 954: MEDIATION CONFIDENTIALITY DISCLOSURES.

California regards mediation as a beneficial process for parties to resolve disputes in an expeditious and economical fashion. To assure open and candid participation, there is a longstanding policy in California to maintain confidentiality during the mediation process. However, the mediation confidentiality statutes have prevented some clients from suing their·attorneys for alleged malpractice that occurred during the mediation process. (see Cassel v. Superior Court, (2011) 51 Cal.4th 113). Senate Bill ("SB") 954, was recently passed and thereafter approved by the Governor on September 11, 2018 to address this concern.

SB 954, which will amend California Evidence Code section 1122 and add California Evidence Code section 1129, requires that an attorney representing a client participating in a mediation or a mediation consultation provide that client with a written disclosure and acknowledgement containing the mediation confidentiality restrictions as set forth in the California Evidence Code.

This written disclosure and acknowledgement requirement does not apply to class or representative actions. Additionally, the failure of an attorney to follow the new requirement will not be a basis to set aside an agreement prepared in the course of, or pursuant to, a mediation. Any communication, document, or writing related to an attorney's compliance with the disclosure requirement will not be considered confidential and may be used in a disciplinary proceeding if the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.

California Evidence Code section 1129 sets forth the exact language that must be used in the disclosure. It even informs the client that all communications between the client and the attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if the client later decides to sue the attorney for malpractice because of something that happens during the mediation.

The new disclosure requirement will allow mediation to maintain the confidentiality that encourages open and candid communications during the process while ensuring that before clients agree to mediation that the clients are made aware of how that confidentiality can potentially impact them. SB 954, will take effect on January 1,2019.

Reprinted courtesy of Stephen J. Pearce, Chapman Glucksman Dean Roeb & Barger and David A. Napper, Chapman Glucksman Dean Roeb & Barger
Mr. Pearce may be contacted at dnapper@cgdrblaw.com
Mr. Napper may be contacted at jpaster@HuntonAK.com



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