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Crews Will Conduct Controlled Demolition at Baltimore Bridge Collapse Site
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Contractors can minimize their exposure to a subcontractor’s claim by utilizing a pass-through claim procedure.
Resolving Subcontractor Disputes with Pass-Through Claims and Liquidation Agreements
Monday, May 13, 2024
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Stephanie Cooksey - Peckar & Abramson, P.C.
Imagine a project where you are unable to reach final completion due to an unresolved subcontractor claim. If the project owner is responsible for the claim, and both the owner and subcontractor are entrenched in their positions, how would you resolve this dispute?
The default option is a three-party lawsuit where the subcontractor sues you in your capacity as general contractor. By denying the claim, you bring the owner into the lawsuit as a liable party to the subcontractor’s claim. This option is efficient from the judicial system’s perspective, as it means one lawsuit instead of two. The subcontractor cannot sue the owner since the two have no contract between them. Thus, the subcontractor’s recourse is limited to suing the contractor. In the three-party lawsuit, you argue that if the subcontractor prevails in its claim against you, the owner is liable. If the owner successfully defends against the claim, the subcontractor takes nothing.
Putting judicial economy aside, it may not make economic sense for contractors to have a lawyer involved in litigating a case where they have no skin in the game. Fortunately, there is a better option than the three-party lawsuit on multi-party construction projects.
Reprinted courtesy of Stephanie Cooksey, Peckar & Abramson, P.C.
Ms. Cooksey may be contacted at scooksey@pecklaw.com
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In cases where a lien claimant claims a lien for both labor and materials without providing pre-lien notice, like Velazquez did, a lien claimant may enforce the labor portion provided there is documentation to separate the value of the materials from the labor.
Velazquez Framing, LLC v. Cascadia Homes, Inc. (Take 2) – Pre-lien Notice for Labor Unambiguously Not Required
Monday, May 13, 2024
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Travis Colburn - Ahlers Cressman & Sleight
Pre-lien Notice for Labor Unambiguously Not Required.
In January 2024, almost a year after Division 2 of the Washington Court of Appeals decided Velazquez Framing, LLC v. Cascadia Homes, Inc.,1 the Washington Supreme Court, sitting en banc, reversed and remanded the matter for further proceedings.2
The relevant background facts are that Cascadia Homes, Inc. (“Cascadia”), was a general contractor and also owned the property that was the subject matter of the underlying dispute. Cascadia wished to construct a new home on the property. Cascadia hired High End Construction, LLC (“High End”) – a framing subcontractor – to provide framing for the new home. High End, in turn, hired Velazquez Framing, LLC (“Velazquez”). Velazquez did not provide Cascadia – the owner – with notice of its statutory right to claim a lien.
Reprinted courtesy of Travis Colburn, Ahlers Cressman & Sleight
Mr. Colburn may be contacted at travis.colburn@acslawyers.com
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Martin McNerney Development Company entered a construction contract to perform seismic upgrades and tenant improvements for condominiums.
Insurers Dispute Sharing of Defense in Construction Defect Case
Monday, May 13, 2024
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Tred R. Eyerly - Insurance Law Hawaii
The California Court of Appeal affirmed the trial court's decision that the defending insurer was not entitled to reimbursement of defense costs from another insurer based upon a subcontract and additional insured endorsement. Zurich Am. Ins. Co. v. Old Republic Gen. Ins. Corp., 2024 Cal. App. Unpub. LEXIS 1261 (Cal. Ct. App. Feb. 28, 2024).
Martin McNerney Development Company (McNerney) entered a construction contract to perform seismic upgrades and tenant improvements for condominiums. McNerney and Broadway Mechanical Contractors, Inc. (Broadway) entered a "Subcontract Agreement" under which Broadway was to perform plumbing work at the project. The agreement required Broadway to maintain general liability insurance naming McNerney as an additional insured for work performed on the project, including completed operations. The subcontract also required Broadway to indemnify and hold McNerney harmless with respect to all claims for damage to property arising out of work performed by Broadway.
Broadway completed its work on the project in September 2007. Broadway issued a one-year warranty for its work on the project.
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com
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Calculating the True Cost of Underinvesting in Construction Health and Safety
May 13, 2024 — James Alexander - Construction Executive
As the construction sector embarks on another fiscal year, prioritizing health and safety is increasingly imperative. New industry-specific safety research and technology aims to help directors effectively optimize their financial resources and more precisely understand the economic impacts of safety strategies.
SHIFTING THE PARADIGM
The construction industry across America is evolving quickly—especially when it comes to cutting-edge technological solutions in software and hardware, aimed at reinforcing safety protocols and yielding both operational and economic advantages. However, implementing these advancements often hinges on showing a tangible economic benefit, an issue that an innovative new initiative seeks to tackle by merging insights from academia and industry professionals.
Reprinted courtesy of James Alexander, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Policy Rescission: Avoid Relying Solely on the Broker
May 13, 2024 — Yosef Itkin & Patrick M. McDermott - Hunton Insurance Recovery Blog
Policyholders purchase insurance policies as a safety net, promising financial protection in times of need. However, that safety net can disappear when an insurer rescinds a policy—a devastating consequence for potentially innocent policyholders. We recently published a post following a Fourth Circuit decision addressing this issue. The Ninth Circuit has also addressed this issue, most recently in the decision discussed below.
Policy rescission generally occurs when an insurer retroactively cancels a policy, usually citing a material misrepresentation or omission by a policyholder in its insurance application. California law allows rescission even when the misrepresentations or omissions are purportedly innocent. This means that even unintentional errors or omissions on an insurance application can lead to the cancellation of coverage, leaving policyholders without the protection they thought they had. One may think they can rely on their broker to handle the application for them, but doing so might not excuse the policyholder from issues in their application.
Reprinted courtesy of Yosef Itkin, Hunton Andrews Kurth and Patrick M. McDermott, Hunton Andrews Kurth
Mr. Itkin may be contacted at yitkin@HuntonAK.com
Mr. McDermott may be contacted at pmcdermott@HuntonAK.com
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Brooklyn Waterfront Condos Open as Williamsburg’s Building Boom Nears End
May 13, 2024 — Jennifer Epstein - Bloomberg
A Brooklyn neighborhood’s residential development boom is nearing an end, as a condo tower opens at one of the final sites on the Williamsburg waterfront.
Sales begin Wednesday at One Domino Square, a 39-story tower just north of the Williamsburg Bridge. It’s the sole condo offering in the 11-acre (4.5-hectare) complex that Two Trees Management has been building around the historic Domino Sugar refinery, which was converted into offices.
The tower’s debut is the latest step in the transformation of the onetime industrial area, made possible by a 2005 rezoning that cleared the way for construction of some of Brooklyn’s most expensive housing. Earlier efforts in Williamsburg had been focused closer to the Bedford Avenue L train stop, or farther north along the East River. Two of those waterfront projects — Toll Brothers’ Northside Piers and the Edge by Douglaston Development — were finished in 2007 and 2009, respectively.
Cameron Kalunian to Join West Coast Casualty Construction Defect Seminar
May 13, 2024 — Lewis Brisbois Newsroom
Los Angeles, Calif. (April 30, 2024) – Los Angeles Partner Cameron Kalunian will speak at the upcoming West Coast Casualty Construction Defect Seminar, hosted at Disneyland Resort Hotel in Anaheim on May 17 at 9:30 a.m. PT.
Mr. Kalunian will present a 60-minute informative session, titled “Navigating Downstream Waters: Effective Additional Insured and Contractual Risk Transfer Strategies,” alongside Cheryl Kozdrey of Saxe Doernberger & Vita, P.C., Cynthia Garcia of Bernards, and Trevor Resurreccion of Lynberg & Watkins, APC. CLE credits are available.
Mr. Kalunian is a vice-chair of Lewis Brisbois’ nationwide Construction Practice and a member of the Complex Litigation Practice. His practice is focused on multi-party litigation in a wide variety of cases involving claims related to breach of contract, fraud, unfair business practices, real estate, construction defect disputes, and various tort claims.
Learn more about this seminar and register here.
May 17th, 2024
Disneyland Hotel
1150 Magic Way
Anaheim, CA 92802
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Stufkosky’s children alleged that their father’s death was due to Caltrans’ negligent design of SR-153, inadequate number of deer crossing signs, and its high posted speed limit.
Courts Will Not Second-Guess Public Entities When it Comes to Design Immunity
Monday, May 13, 2024
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Garret Murai - California Construction Law Blog
It was a bizarre confluence of events. Jorgen Stufkosky was driving on SR-154 in Santa Ynez, California. Martha Aguayo was driving on the same highway ahead of Stufkosky when she struck a deer causing it to fly across the centerline into traffic from the opposite direction. The deer struck a SUV causing its driver to lose control. The driver of the SUV crossed the same centerline where he collided head on with Stufkosky, killing him.
Stufkosky’s children later sued the California Department of Transportation in the case Stufkosky v. California Department of Transportation, 97 Cal.App.5th 492 (2023), alleging that their father’s death was due to Caltrans’ negligent design of SR-153, inadequate number of deer crossing signs, and its high posted speed limit.
While in the trial court, Caltrans filed a motion for summary judgment on the ground that Caltrans was immune from liability under Government Code section 830.6, the so called “design immunity” statute.
The trial court agreed and the Stufloskys appealed.
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com
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When relations between the owner and second contractor went south, the second contractor filed a lien on the project and then suit in federal court to enforce the lien.
Construction Litigation Roundup: “You Have No Class(ification)”
Monday, May 13, 2024
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Daniel Lund III - Lexology
In fact, you didn’t even have a license.
A federal court in Alabama was tasked with determining whether an unlicensed contractor could recover from an Alabama project owner for in excess of $1.7 million in construction infrastructure and site work performed. In fact, the contractor “did not have a valid general contractor’s license” in the state of Alabama when it “assumed work on the project from its predecessor company.”
During the course of work on the project, the principals of an original contractor decided to go their separate ways, whereupon one of those principals announced that his new company would take over ongoing work. Roughly two months after the new company began working at the project, the contractor applied for a license with the Alabama Licensing Board of General Contractors – the license was issued within about 45 days. Then, some eight months later, the contractor added a “municipal and utilities” classification to its contractor license.
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com
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The better prepared parties can be for the Rule 26(f) conference, the more thorough the discovery plan and the more valuable the discussion with the opposing part and the Court.
Toolbox Talk Series Recap – Best Practices for Productive Rule 26(f) Conferences on Discovery Plans
Monday, May 13, 2024
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Douglas J. Mackin - The Dispute Resolver
In the April 4, 2024 edition of Division 1’s Toolbox Talk Series, Julian Ackert and Steve Swart presented on how to prepare for and structure Rule 26(f) conferences to be more effective. While Swart and Ackert focused on the requirements of Federal Rule of Civil Procedure 26(f) regarding the requisite conference of the parties prior to a scheduling conference or scheduling order, it is worth noting that many states have substantially similar requirements.
Rule 26(f) requires the parties to (i) discuss the nature and basis of their claims or defense; (ii) make or arrange for mandatory disclosures pursuant to Rule 26(a)(1); (iii) discuss issues about preserving discoverable information (including Electronically Stored Information – “ESI”); and (iv) develop a proposed discovery plan. Swart and Ackert’s presentation focused on the preservation of ESI and the proposed discovery plan.
Reprinted courtesy of Douglas J. Mackin, Cozen O’Connor
Mr. Mackin may be contacted at dmackin@cozen.com
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This ruling may carry profound implications for the construction industry, prompting construction businesses to reassess their practices and ensure compliance while maintaining competitiveness.
Blueprint for Change: How the Construction Industry Should Respond to the FTC’s Ban on Noncompetes
Monday, May 13, 2024
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Matthew DeVries - Best Practices Construction Law
In a groundbreaking move aimed at fostering fair competition and empowering workers, the Federal Trade Commission (FTC) issued a final rule last week to ban noncompete agreements nationwide. This ruling may carry profound implications for the construction industry, prompting construction businesses to reassess their practices and ensure compliance while maintaining competitiveness. Let’s explore how construction companies, large and small, can navigate this regulatory shift effectively.
Noncompete clauses have long been a staple in employment contracts within the construction sector, often used to protect proprietary information and retain skilled talent. However, the FTC’s ban on noncompetes demands a reevaluation of these practices. Employers must recognize the potential consequences of noncompliance, including legal repercussions and reputational damage, and take proactive steps to adapt to the new regulatory landscape.
Communications with Employees
The FTC rule requires employers to provide a form notice of non-enforcement to all present and former employees subject to an unexpired noncompete provisions. However, given the immediate legal challenges to the FTC’s rule and the fact that the 120-day compliance window has not yet begun, there is no reason to take immediate action or begin notifying employees. Instead, business owners should wait for at least 60 days before taking concrete action in response to the rule to see if any court temporarily enjoins the effectiveness of the rule.
Reprinted courtesy of Matthew DeVries, Burr & Forman LLP
Mr. DeVries may be contacted at mdevries@burr.com
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Pillsbury's Real Estate and Construction News team summarizes recent industry news.
Real Estate & Construction News Roundup (4/17/24) – Travel & Tourism Reach All-Time High, President Biden Emphasizes Housing in SOTU Address, and State Transportation Projects Under Scrutiny
Monday, May 13, 2024
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Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, Airbnb advocates for new short-term rental rules, the U.S. Supreme Court rules on hefty development fees, loan losses becomes a greater issue for banks, and more!
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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Attorney Victoria Kajo has extensive experience with professional liability litigation, having defended lawyers, design professionals and real estate professionals against claims of alleged negligent acts and omissions in the performance of their professional services.
Victoria Kajo Named One of KNOW Women's 100 Women to KNOW in America for 2024
Monday, May 13, 2024
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Lewis Brisbois Newsroom
Los Angeles, Calif. (April 30, 2024) – Los Angeles Partner Victoria Kajo has been named to global media company KNOW Women's 2024 100 Women to KNOW in America list, which honors the top 100 female leaders across North America. The honorees were recognized at the annual KNOW Women Summit, held from April 21-23 at The Palomar Hotel in Phoenix, Arizona.
The annual 100 Women to KNOW in America award, presented by JPMorgan Chase, recognizes women entrepreneurs, executives, creatives, and philanthropists who "exemplify what it means to be high achieving and ambitious on the next level and who continue to pour into their communities as they do so," according to KNOW Women. Ms. Kajo was selected as one of this year's honorees following a nomination and interview process.
Ms. Kajo is a member of Lewis Brisbois' Professional Liability Practice. She has extensive experience with professional liability litigation, having defended lawyers, design professionals and real estate professionals against claims of alleged negligent acts and omissions in the performance of their professional services. Ms. Kajo also has broad experience in general civil litigation matters involving errors and omissions, real estate, wrongful foreclosures, labor and employment law, civil rights, fraud, personal injury, breach of contract and unlawful detainer matters, amongst others.
Reprinted courtesy of Lewis Brisbois
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George Building Collapse | Death toll rises to 26
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Quick action thwarts cyber thieves stealing a payment for the Florida city's contractor
How Fort Lauderdale Recovered a Phished $1.2M Police HQ Project Payment
Monday, May 13, 2024
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Richard Korman - Engineering News-Record
Jan. 25th was a happy day for the city of Fort Lauderdale, Fla., as Mayor Dean Trentalis and Police Chief William Schultz announced in a press conference the recovery of a $1.162-million electronic payment meant for Moss Construction that had been stolen in September via an email phishing fraud.
Reprinted courtesy of Richard Korman, Engineering News-Record
Mr. Korman may be contacted at kormanr@enr.com
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Attorney Christopher G. Hill has been selected to the Virginia Super Lawyers in the Construction Litigation category for 2024.
Thanks to All for the 2024 Super Lawyers Nod!
Monday, May 13, 2024
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Christopher G. Hill - Construction Law Musings
It is with humility and a sense of accomplishment that I announce that I have been selected for the seventh straight year to the Virginia Super Lawyers in the Construction Litigation category for 2024. Add this to my recent election to the Virginia Legal Elite in Construction and I’ve had a pretty good year. As always, I am thrilled to be included on these peer-elected lists.
So without further ado, thank you to my peers and those on the panel at Virginia Super Lawyers for the great honor. I feel quite proud to be part of the 5% of Virginia attorneys that made this list for 2024.
The full list of Virginia Super Lawyers will appear in the May edition of Richmond Magazine. Please check it out.
If you want to see the lists before then, a digital version of the Virginia Super Lawyers Magazine is available here (click on the Virginia magazine).
Thanks again to all of you who participated in my nomination and election.
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com
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Company wins six awards, including Community of the Year for Regency at Manalapan
Toll Brothers Honored at the Shore Builders Association of Central New Jersey Awards
Monday, May 13, 2024
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Toll Brothers
FREEHOLD, N.J., May 07, 2024 (GLOBE NEWSWIRE) -- Toll Brothers, Inc. (NYSE:TOL), the nation's leading builder of luxury homes, today announced that the Company's New Jersey Division was honored with six awards at the 2024 Fabulous Achievements in Marketing Excellence (FAME) Awards held at South Gate Manor in Freehold, New Jersey.
Presented by the Shore Builders Association of Central New Jersey, the FAME Awards honor home builders of the New Jersey Builders Associations who have made major contributions to the home building industry. The awards span categories from product and design to advertising, marketing, and professional achievements. Toll Brothers was selected as the winner in the following categories:
For more information on Toll Brothers communities in New Jersey, visit TollBrothers.com/NewJersey.
About Toll Brothers
Toll Brothers, Inc., a Fortune 500 Company, is¬ the nation's leading builder of luxury homes. The Company was founded 57 years ago in 1967 and became a public company in 1986. Its common stock is listed on the New York Stock Exchange under the symbol "TOL." The Company serves first-time, move-up, empty-nester, active-adult, and second-home buyers, as well as urban and suburban renters. Toll Brothers builds in over 60 markets in 24 states: Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, and Washington, as well as in the District of Columbia. The Company operates its own architectural, engineering, mortgage, title, land development, smart home technology, and landscape subsidiaries. The Company also develops master-planned and golf course communities as well as operates its own lumber distribution, house component assembly, and manufacturing operations.
Research into Williams County’s fracking industry shows how a commodity boom can accelerate the number of people losing their homes.
The Other Side of the North Dakota Oil Boom: Evictions
Monday, May 13, 2024
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Sarah Holder - Bloomberg
Williams County, North Dakota, is one of the biggest beneficiaries of the state’s fracking boom. In the past decade, millions of barrels of oil have been pumped from its land, and the population of its largest city, Williston, has doubled.
But as the oil flowed and workers poured in to staff the rigs, housing options quickly ran dry. The region’s uneven expansion has led to an eviction crisis for the county’s 39,000 residents, according to a recent paper from a group of sociologists affiliated with Princeton University’s Eviction Lab.
Williams County saw its eviction rate go from “nearly non-existent” in 2010 to over 7% a decade later, the study found. By 2019, at the height of its oil boom — when the state accounted for 11% of the country’s oil production — its eviction filing rate was comparable to that of large, renter-heavy cities like New York City or Philadelphia, according to Eviction Lab. Though oil production peaked in 2019, the problem hasn’t abated: From January through November 2023, more than 550 evictions were recorded by the Williams County Sheriff’s office, up around 30% from the previous full year.
Reprinted courtesy of Sarah Holder, Bloomberg
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