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CONSTRUCTION DEFECT NEWS

And the Winner Is . . . The Right to Repair Act!

Thursday, February 15, 2018 — Garret Murai – California Construction Law Blog

Civil litigation attorneys often talk about “damages.” Because without damages . . . well . . . you’re out of luck.

But damages come in different flavors. In construction litigation, when it comes to defective construction, there are two basic flavors: actual damages and economic damages. Actual damages include property damage and personal injury, such as a defective roof that causes water damage into the interior of the structure or collapses causing injury to someone inside the structure. In contrast, economic damages would be the cost to repair or replace the defective roof, without any resulting property damage or personal injury.

Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP

Mr. Murai may be contacted at gmurai@wendel.com

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How Small Mistakes Can Have Serious Consequences Under California's Contractor Licensing Laws.

Thursday, February 15, 2018 — Eric Reed - Myers, Widders, Gibson, Jones & Feingold, LLP

In construction, some risks have nothing to do with how well a contractor executes a project. Licensing problems is one of these risks. Even a brief lapse caused by an unintentional administrative error can give the CSLB grounds to discipline a contractor, or enable a customer to seek disgorgement and other remedies provided by Business and Professions Code section 7031. This article discusses five tips for mitigating the liabilities associated with licensing problems.

Tip 1: Take workers' compensation insurance very seriously. Workers’ compensation insurance problems can trigger license suspension in California. Business and Professions Code section 7125.4 calls for automatic suspension if a contractor cannot provide proof of workers’ compensation insurance for any period of time. This is particularly serious for residential remodelers who claim exemption for workers’ compensation but are later discovered – usually during litigation with a homeowner – to have “off the books” workers helping them. Courts can declare the contractor retroactively unlicensed under these circumstances and order it to disgorge, i.e., to pay back, every penny paid by the customer for the entire project (even for materials). (Bus. & Prof. Code, § 7031, subd. (b); Wright v. Issak (2007) 149 Cal.App.4th 1116.) The contractor will also find itself unable to collect any amounts owed to it by the customer. (Bus. & Prof. Code, § 7031, subd. (a).)

Tip 2: Watch out for licensing confusion after a merger or acquisition. The economic downturn of 2008 and 2009 resulted in consolidation throughout the building industry. The newly merged or acquired entities often allowed redundant licenses to expire, assuming they could complete all pending projects under the umbrella of the acquiring company's license. Many learned this was a mistake the hard way. Armed with the California Supreme Court's opinion in MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, customers began refusing to pay invoices and demanding disgorgement under Business and Professions Code section 7031 because the original contractor did not maintain licensure “at all times.” Many of these customers succeeded.

Tip 3: If a license suspension has occurred or is imminent, prepare to prove substantial compliance. Section 7031(a) and (b) give a disgruntled or indebted customer every incentive to capitalize on a contractor's licensing problems. Subdivision (e) is where a contractor must turn to protect its interests if this happens. It allows the contractor to prove “substantial compliance” with licensing requirements and avoid (a)’s and (b)’s sharp edges if it can show the following:

(1) The contractor “had been duly licensed as a contractor in this state prior to the performance of the act or contract”;

(2) It “acted reasonably and in good faith to maintain proper licensure”; and

(3) It “acted promptly and in good faith to remedy the failure to comply with the licensure requirements upon learning of the failure.”

The Court of Appeal confirmed in Judicial Council of California v. Jacobs Facilities, Inc. (2015) 239 Cal.App.4th 882 that a contractor, upon request, is entitled to a hearing on these three factors before it is subjected to disgorgement under Section 7031(b). The legislature amended Section 7031 shortly after the Court of Appeal published this case. The Assembly’s floor analysis went so far as to directly quote the opinion’s observation that penalizing a construction firm for “technical transgressions only indirectly serves the Contractors Law’s larger purpose of preventing the delivery of services by unqualified contractors.” (Assem. Com. on Bus. and Prof., Off. of Assem. Floor Analyses, analysis of Sen. Holden's No. 1793 (2015-2016 Reg. Sess.) as amended August 2, 2016, p. 2.) This echoed an industry consensus that clarifying the law was needed to ensure that properly licensed and law-abiding construction firms were not “placed at fatal monetary risk by malicious lawsuits motivated by personal gain rather than consumer protection.” (Assem. Com. on Judiciary, com. on Assem. Bill No. 1793 (2015-2016 Reg. Sess.), pp. 6-7.)

Unfortunately, existing law does not give many examples of what it means to act “reasonably and in good faith to maintain proper licensure” or to act “promptly and in good faith” to fix license problems. A practical approach is for a contractor to work backwards by assuming it will need to prove substantial compliance at some point in the future. Designated individuals within the organization should have clear responsibility over obtaining and renewing the proper licenses and should keep good records. If necessary, these designees can testify about the contractor's internal policies and their efforts to fix licensing problems when they arose. For example, if the suspension resulted from not providing the CSLB proof of workers’ compensation insurance, the designee can testify about the cause (a broker miscommunication, transmission error, etc.) and produce documents showing how he or she worked promptly to procure a certificate of insurance to send CSLB. Saved letters, emails, and notes from telephone calls will provide designees and their successors with an important resource months or years down the line if a dispute arises and the contractor is required to reconstruct the chronology of a licensing glitch and prove its due diligence.

Tip 4: Don't sign new contracts unless all necessary licenses are active and any problems are resolved. A recently-formed contractor should not begin soliciting and signing contracts until all required licenses are confirmed as “active.” The first requirement of substantial compliance – being “duly licensed as a contractor in this state prior to the performance of the act or contract” – cannot be met by a contractor that first obtains its license mid-project. (Bus. & Prof. Code, § 7031, subd. (e)(1); Alatriste v. Cesar’s Exterior Designs (2010) 183 Cal.App.4th 656.) A licensed contractor should also consider refraining from signing new contracts if there is any reason to believe its license might be suspended in the near future – especially if the suspension will be retroactive. Having a suspension on record at the time of contracting may complicate the question of whether the contractor was “duly licensed . . . prior to performance” for the purposes of substantial compliance.

Tip 5: Any judgment against a contractor can cause license suspension if not handled promptly and correctly. The Business and Professions Code authorizes the CSLB to suspend the license of a contractor that does not pay a construction related court judgment within 90 days. The term “construction related” is interpreted to include nearly all types of disputes involving a contractor. (16 Cal. Code Reg. 868; Pacific Caisson & Shoring, Inc. v. Bernards Bros. Inc. (2015) 236 Cal.App.4th 1246, 1254-1255.) This means a contractor should treat a judgment against it for unpaid office rent, for example, as one carrying the same consequences as one arising from a construction defect or subcontractor claim. The contractor should also not assume that filing an appeal, or agreeing with the other side to stay enforcement, automatically excuses the 90-day deadline in the eyes of the CSLB. It does not. A contractor must notify the CSLB in writing before this period expires, then post bond for the amount of judgment, if it wishes to delay payment for any reason. (Bus. & Prof. Code, § 7071.17, subd. (d).) A suspension may result if it does not. This applies even to small claims judgments.

Recent case law and the 2016 amendments to Business and Professions Code section 7031 provide some solace to those caught in the dragnet of California's licensing laws. But avoiding these problems altogether is preferable. Consider licensing the foundation of a successful business and deserving of the same attention as the structures a contractor builds.

Eric R. Reed is a business and insurance litigator in the Ventura office of Myers, Widders, Gibson, Jones & Feingold, LLP.

Reprinted courtesy of Eric Reed, Myers, Widders, Gibson, Jones & Feingold, LLP

Mr. Reed may be contacted at ereed@mwgjlaw.com


Modified Plan Unveiled for Chicago's Sixth-Tallest Tower

Thursday, February 15, 2018 — Jeff Yoders – ENR

The Chicago Plan Commission on Jan. 18 approved a $700-million development that, as presented, would include the city’s sixth-tallest building.

Reprinted courtesy of Jeff Yoders, Engineering News-Record

Mr. Yoders may be contacted at yodersj@enr.com

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Construction Adds 36,000 Jobs in Jan., Jobless Rate Dips from 2017

February 15, 2018 — Tom Ichniowski – ENR

The construction industry saw a jump of 36,000 jobs in January and a sharp year-over-year drop in its unemployment rate but an upturn from December’s rate, the Labor Dept. has reported.

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

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No Coverage Defenses After Two-Year Delay to Appear In Declaratory Judgment Action

February 15, 2018 — Tred R. Eyerly – Insurance Law Hawaii

The federal district court found that the insurer was estopped from asserting coverage defenses after taking no action for two years before appearing in a declaratory judgment action filed by the insured. Sentinel Ins. Co. v. Walsh Constr. Co., 2018 U.S. Dist. LEXIS 6487 (N.D. Ill. Jan. 16, 2018).

Walsh Construction Company was the general contractor on a construction project to alter the streets and train tracks in Chicago. James Quigley, an iron worker for subcontractor S&J Construction Company, was crushed by a steel post. His estate filed suit against Central Contractors Service, Inc., the subcontractor that was operating the crane from which the steel post was suspended at the time of the accident, and Walsh. The complaint alleged that Walsh coordinated the work being done and designated various work methods and schedules for the project.

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

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Home Prices Hit Records in Almost Two-Thirds of U.S. Cities

February 15, 2018 — Prashant Gopal – Bloomberg

Home prices jumped to all-time highs in almost two-thirds of U.S. cities in the fourth quarter as buyers battled for a record-low supply of listings.

Prices for single-family homes, which climbed 5.3 percent from a year earlier nationally, reached a peak in 64 percent of metropolitan areas measured, the National Association of Realtors said Tuesday. Of the 177 regions in the group’s survey, 15 percent had double-digit price growth, up from 11 percent in the third quarter.

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West Coast Casualty Construction Defect Seminar

February 15, 2018 — Meg Scane – CDJ Staff

The 25th annual West Coast Casualty Construction Defect seminar returns to the Disneyland Hotel this May. The seminar includes keynotes, panels, and breakout sessions on industry-relevant topics, as well as receptions that provide networking opportunities. Over 1600 people attend each year from the legal, insurance, builder, contractor, and subcontractor industries as well as others.

May 16-18, 2018
Disneyland Hotel
1150 West Magic Way
Anaheim, CA 92802

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A New Hope - You Now May Have Coverage for Punitive Damages in Connecticut

Thursday, February 15, 2018 — Stella Szantova Giordano – SDV Blog

On December 19, 2017, the Connecticut Supreme Court released its decision in Nationwide Mutual Ins. Co. v. Pasiak. The decision is significant for two reasons: 1) it clarifies the amount of proof an insurer needs to determine whether an exclusion to coverage applies; and 2) it found that where an insurance policy expressly provides coverage for an intentional act such as false imprisonment, common-law punitive damages are also covered.

Underlying action

The underlying action proves that real life is often stranger than fiction. Ms. S worked as an office help for a construction company owned by Mr. P, which operated out of his home. Ms. S was working alone in the home office, when an armed, masked intruder entered the office, tied her hands, gagged and blindfolded her and, pointing a gun to her head, threatened to kill her family if she did not give him the combination to a safe in the home. As this was happening, Mr. P entered the office, unmasked the intruder, and discovered it was his lifelong friend. After Ms. S was untied, she asked to leave, but Mr. P told her to stay. She was not allowed to leave for several hours as Mr. P made her accompany him to an errand. Ms. S sued Mr. P for false imprisonment, among other things. The trial court awarded her compensatory and punitive damages. Insurance coverage for the underlying judgment is at the heart of the Pasiak case.

Reprinted courtesy of Stella Szantova Giordano, Saxe Doernberger & Vita, P.C.

Ms. Szantova Giordano may be contacted at ssg@sdvlaw.com

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What Rich Millennials Want in a Luxury Home: 20,000 Square Feet

Thursday, February 15, 2018 — Patrick Clark – Bloomberg

A new generation of affluent homebuyers powered by a surge in inherited wealth is driving the luxury-home market, demanding larger spaces and fancier finishes, according to a report heralding “the rise of the new aristocracy.”

Prospective homebuyers under 50 account for most of those shopping for homes priced at $1 million or more, according to the report. Nearly a quarter of high-net-worth consumers between 25 and 49 said they would look for at least 20,000 square feet when they made their next home purchase; it was just 6 percent for respondents 50 or older. The report is based on a survey of more than 500 consumers with at least $1 million in investable assets, conducted last month on behalf of Luxury Portfolio International, a network of real estate brokerages.

Reprinted courtesy of Patrick Clark, Bloomberg
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Review the Terms and Conditions of Purchase Orders- They Could be Important!

Thursday, February 15, 2018 — Christopher G. Hill – Construction Law Musings

There are many moving parts on a commercial construction project. These range from site surveys to weather events to ordering materials. On most large construction projects, the prime contract and subcontracts are generally drafted ahead of time and hopefully reviewed by both in house personnel and an experienced construction attorney. However, there are situations, particularly where the contract may be one for service or provision of materials where individual purchase orders are issued as opposed to what would likely be looked at as a long form subcontract.

Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill, PC
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CONSTRUCTION DEFECT NEWS

Contractors: Consult Your Insurance Broker Regarding Your CGL Policy

Thursday, February 15, 2018 — David Adelstein – Florida Construction Legal Updates

Contractors: do yourself a favor and consult your insurance broker regarding your commercial general liability (CGL) policy. Do this now, especially if you subcontract out work.

CGL policies contain a “your work” exclusion. The CGL policy is written such that it excludes “‘property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard.’” This exclusion will be raised in the post-completion latent construction defect scenario. (There are other exclusions that will be raised to a defect discovered during construction.) Certain policies will contain a subcontractor exception to this “your work” exclusion. You WANT this exception- no doubt about it so that this exclusion does not apply to work performed by your subcontractors. Without this subcontractor exception, truth be told, this “your work” exclusion is a total back-breaker to contractors. It will give your insurer an immediate out for many latent defect property scenarios since excluded from coverage is property damage to your work including work performed by your subcontractors.

Reprinted courtesy of David Adelstein, Florida Construction Legal Updates

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

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Las Vegas Student Housing Developer Will Name Replacement Contractor

Thursday, February 15, 2018 — John Guzzon – ENR

More than four months after construction abruptly stopped on a $76-million student housing project for the University of Nevada at Las Vegas, the developer is seeking a new contractor.

Reprinted courtesy of John Guzzon, Engineering News- Record

Mr. Guzzon may be contacted at ENRSouthWestEditor@enr.com

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Construction Defect Claim Must Be Defended Under Florida Law

Thursday, February 15, 2018 — Tred R. Eyerly – Insurance Law Hawaii

The Eleventh Circuit found that the insured caused property damage to areas beyond its own work, obligating the insurer to defend. Addison Ins. Co. v. 4000 Island Blvd. Condo. Ass'n, 2017 U.S. App. LEXIS 26870 (11th Cir. Dec. 28, 2017).

The condominium association contracted with Poma Construction Corp. to replace the building's aging concrete balcony railings with new aluminum and glass railings. Poma subcontracted with Windsor Metal Specialties, Inc. to paint the new railings. Work was completed on February 24, 2012. Poma issued a 10-year warranty covering its installation of the railings. Windsor issued a 20-year limited warranty covering the paint job.

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

Open & Known Hazards Under the Kinsman Exception to Privette

Thursday, February 15, 2018 — Frances Ma & Lawrence S. Zucker II – Haight Brown & Bonesteel LLP Publications & Insights

Gonzalez v. Mathis, 2018 WL 718528 confirms the difficulties a defendant will face when trying to overcome the Kinsman exception to the Privette doctrine on a dispositive motion when dealing with an open and obvious hazard. There, a professional window washer fell off a roof while walking along a parapet wall constructed by the owner of a home.

The window washer filed suit against the homeowner and alleged three dangerous conditions on the roof: (1) the parapet wall forced those who needed to access a skylight to walk along an exposed two-foot ledge that lacked a safety railing; (2) dilapidated and slippery roof shingles; and (3) the lack of tie off points that would allow maintenance workers to secure themselves with ropes or harnesses. The homeowner filed a motion for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny which prohibits an independent contractor from suing his or her hirer for workplace injuries (“Privette doctrine”).

There are two exceptions to the Privette doctrine. First, a hirer cannot avoid liability when he or she exercises control over the manner and means in which a contractor does his or her work and that control contributes to the injuries sustained – known as the “Hooker exception” (premised on the holding of Hooker v. Department of Transportation (2002) 27 Cal.4th 198). Second, a hirer may be found liable if he or she fails to warn the contractor of a concealed hazard on the premises – known as the “Kinsman exception” (premised on the holding of Kinsman v. Unocal Corp. (2005)).

Reprinted courtesy of Frances Ma, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Ms. Ma may be contacted at fma@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com



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Ambiguity Kills in Construction Contracting

Thursday, February 15, 2018 — Christopher G. Hill – Construction Law Musings

Well, I’m back and hope to have a more consistent publishing schedule moving forward. I appreciate the continued readership through what has been a busy time for my solo construction practice over the last couple of months. Now, back to our program. . .

Here at Construction Law Musings, I have often beaten the drum of a solid contract that leaves as little as possible to chance or the dreaded “grey areas” where we construction lawyers like to make money. An example of the issues that can arise from ambiguity can be found in a case from 2017 in the Western District of Virginia, W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP et al

Reprinted courtesy of Christopher G. Hill – The Law Officeof Christopher G. Hill, PC
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Diggin’ Ain’t Easy: Remember to Give Notice Before You Excavate in California

Thursday, February 15, 2018 — Matthew Peng – Construction Law Blog

If you are reading this blog, my guess is that you know what excavation is and why it is important to the construction process. However, what you may not know is the complicated California law that governs this process. The statute for an excavation contractor to be familiar with is California Government Code section 4216, et seq. However, like most things worth pursuing, that is easier said than done. Section 4216 contains several layers of prerequisites and requirements. This article will explore the notice requirement.

Section 4216.1 requires “every operator of a subsurface installation” to share costs of a regional notification center. This is necessary because Section 4216.2(b) requires “an excavator planning to conduct an excavation shall notify the appropriate regional notification center of the excavator’s intent to excavate” before beginning that excavation. The statute lists two regional notification centers: the Underground Service Alert—Northern California and the Under Ground Service Alert—Southern California.

Reprinted courtesy of Matthew Peng, Gordon & Rees

Mr. Peng may be contacted at mpeng@grsm.com

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New Spending Measure Has Big Potential Infrastructure Boost

Wednesday, February 14, 2018 — Tom Ichniowski – ENR

Construction and engineering companies find lots of good news in a newly enacted budget and appropriations package that keeps federal agencies open until late March, provides $89 billion for post-disaster relief and rebuilding and also holds out the prospect of an additional $20 billion in infrastructure funding over the next two years.

Reprinted courtesy of Tom Ichniowski, Engineering News-Record

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

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