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Dangerous Winter Storm to Impact Nearly 80 Million Americans
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Attorney Ted Senet provides twenty-five important decisions that are relevant for every California Construction attorney.
Professor Senet’s List of 25 Decisions Every California Construction Lawyer Should Know:
Monday, January 17, 2022
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Ted Senet - Gibbs Giden
- Aas v. Superior Court (2000) 24 Cal. 4th 627 – economic loss rule
- Amelco Electric v. City of Thousand Oaks ( (2002) 27 Cal. 4th 228 – abandonment does not apply to public works – total cost theory is allowed
- Beacon Residential Community Association v. Skidmore, Owings & Merrill (2014) 59 Cal. 4th 568 – architect liable in absence of privity
- Cates Const., Inc. v. Talbot Partners (1999) 21 Cal.4th 28 – no tort recovery on bonds – performance bonds can cover contract warranties
- Condon-Johnson & Associates, Inc. v. Sacramento Municipal Utility Dist., 149 Cal. App. 4th 1384 – liability for concealed conditions
- Connolly Development, Inc. v. Superior Court of Merced County (1976) 17 Cal. 3d 803 – mechanic lien remedy is constitutional
- Crawford v. Weather Shield Mfg. (2008) 44 Cal. 4th 541 – indemnity implies obligation to defend [now limited to commercial contracts under CCP 2782 (c)–(h)]
Reprinted courtesy of Ted Senet, Gibbs Gidden
Mr. Senet may be contacted at tsenet@gibbsgiden.com
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Builders call building a ‘treasure’ with ‘maintenance issues.'
Ritzy NYC Tower Developer Says Residents’ Lawsuit ‘Ill-Advised’
Monday, January 17, 2022
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Chris Dolmetsch - Bloomberg
The developers of a Manhattan skyscraper that has become one of New York City’s toniest residences said the condo board is trying to squeeze money out of them with a lawsuit that claims bogus design flaws.
The board is seeking $250 million from builders of the 1,396-foot residential tower at 432 Park Avenue that opened in 2015 on the so-called Billionaire’s Row. Their suit alleges the company that developers CIM Group and Macklowe Properties formed to build the structure failed to take into account its unusual height, leading to flooding, noise, vibrations and elevators that are prone to malfunctions.
In a response to the suit filed Wednesday, the company called the building “a treasure” and the suit was “ill-advised.” While the structure needed to be “fine-tuned” when residents started to move in, the board stopped the builders from accessing the facilities and finishing the job “while manufacturing an ever-increasing list of demands,” most of which were not required, according to court filings.
Reprinted courtesy of Chris Dolmetsch, Bloomberg
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Attorney Garret Murai discusses Gonzalez v. Mathis.
California Supreme Court Declines Request to Expand Exceptions to Privette Doctrine for Known Hazards
Monday, January 17, 2022
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Garret Murai - California Construction Law Blog
First things first. Happy New Year! Hope you had a good one.
To start things off in the new year we’ve got an employment-related case for you – Gonzalez v. Mathis, 12 Cal.5th 29 (2021) – a California Supreme Court case involving the Privette Doctrine. For those not familiar with the Privette Doctrine, the Privette Doctrine is named after the case Privette v. Superior Court, 5 Cal.4th 689 (1993), which held that project owners and higher-tiered contractors are not liable for workplace injuries sustained by employees of lower-tiered contractors. Since then, courts have carved out a few exceptions to the Privette Doctrine including the “retained control exception” (also known as the Hooker exception – that’s the name of the case not the occupation of the injured worker) whereby a “hirer,” that is, the higher-tiered party who hired the lower-tiered party whose employee is injured, can be held liable if the hirer: (1) retains control over any part of the lower-tiered party’s work; and (2) negligently exercises that control in a manner that affirmatively contributes to the worker’s injury.
Another exception is the “concealed hazard exception” (also known as the Kinsman exception) whereby a hirer can be held liable if: (1) the hirer knew, or should have known, of a concealed hazard on the property that the lower-tiered contractor did not know of and could not have reasonably discovered; and (2) the hirer railed to warn the lower-tiered contractor of that hazard.
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com
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Would Dramatically Higher OSHA Penalties Make Workers Safer?
January 17, 2022 — Richard Korman & Jonathan Barnes - ENR
When the U.S. Labor Dept. sought to enforce a penalty for violations it believed were connected to the death of welder Jose Armando Maqueda Mejia in North Carolina earlier this year, the largest part of the penalty was $13,653, the maximum fine for a serious violation. It brought the total proposed fines against employer PCL Civil Constructors to $23,000.
Reprinted courtesy of Richard Korman, ENR and Jonathan Barnes, ENR
Mr. Korman may be contacted at kormanr@enr.com
Checklist: What to Know About Wildfire Insurance Coverage
January 17, 2022 — Rebecca R. Nelson - Saxe Doernberger & Vita
California, and the greater Western United States, have experienced devastating wildfires over the last ten years. Not only are the fires more destructive than in years past, but they are also no longer constrained to specific seasons. Because one of the effects of climate change is a drier and hotter climate in the West, California is susceptible to fires year-round. This means that it is increasingly a matter of when, not if, your home or business may be susceptible to a wildfire, and knowledge of wildfire insurance coverage can be helpful when making important decisions.
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World Trade Center Developer Financing Legacy Miami, First COVID-Conscious, Pandemic-Ready Skyscraper
January 17, 2022 — Legacy Miami Worldcenter
MIAMI and NEW YORK, Dec. 15, 2021 (GLOBE NEWSWIRE) -- The developer of New York's World Trade Center complex – Silverstein Capital Partners – is now financing construction of the world's first COVID-Conscious designed and Pandemic Ready residential, hotel, and medical center skyscraper at the massive Miami Worldcenter project in downtown Miami.
The 55-story, 671-foot-tall, half-billion-dollar Legacy Residences, Hotel and Medical Tower at Miami Worldcenter is being built by the Miami-based Royal Palm Companies development firm.
The $4-billion, 27-acre Miami Worldcenter is currently America's largest urban core construction project and the nation's second-largest mixed-use real estate development.
RPC says Legacy is being designed with the most-advanced germ-zapping technologies and will be the first all-in-one residential, hospitality and health and well-being facility in the world, according to Royal Palm Companies CEO, Daniel Kodsi.
The August 2021 ground breaking is the first at the Miami Worldcenter since the start of the pandemic and the first in Florida since the Champlain Towers condo-collapse in nearby Surfside, Fla., in June 2021.
The AGC Annual Convention
January 17, 2022 — Beverley BevenFlorez – CDJ Staff
The 2022 Associated General Contractors of America (AGC) convention in Grapevine, Texas “provides contractors the opportunity to gain business-critical insights into the issues most affecting their operations.” It also “brings together experts from across the industry to share their knowledge and help prepare contractors to meet the challenges of today (and tomorrow).” The event includes Construction Safety Excellence Awards, Educational Sessions as well as General Sessions, Receptions, Expos, Dinners to Support Charities, and much more.
March 28th-31st, 2022
Gaylord Texan Resort & Convention Center
1501 Gaylord Trail
Grapevine, TX 76051
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Depending on the contract, the date of Substantial Completion has project-specific contractual and statutory consequences.
Substantial Completion Explained: What Contractors & Owners Should Know
Monday, January 17, 2022
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Travis Colburn - Ahlers Cressman & Sleight
A project’s Substantial Completion date is a critical construction milestone for contractors and owners. Depending on the contract, the date of Substantial Completion has project-specific contractual and statutory consequences.
Substantial Completion is an “event” – there is no universal definition of the term. It is generally understood to be (1) a point in time (2) when work performed by the contractor is sufficiently complete (3) where it can be used or occupied for the owner’s intended purpose. The date of Substantial Completion is generally established at the time of contract formation (either as a negotiated or a contract set date), and that date may be adjusted over the course of a project to account for excusable delays.
As a construction professional, your attorney should review and tailor any written agreement to your project-specific needs and risk tolerances prior to execution. Savvy construction professionals often start with standard form agreements promulgated by the American Institute of Architects (“AIA”), the Design-Build Institute of America (“DBIA”), or the Engineers Joint Contract Document Committee (“EJCDC”) as the basis for their construction contracts. The AIA, DBIA, and EJCDC standard forms each contains contract provisions relating to when and what happens once Substantial Completion has occurred, subject to any agreed-to, project-specific deviations.
Reprinted courtesy of Travis Colburn, Ahlers Cressman & Sleight
Mr. Colburn may be contacted at travis.colburn@acslawyers.com
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Buzby v. Turtle Rock Community Association, Inc. deals with whether a lawyer was testifying as an expert regarding his own fees.
Just Because I May Be An “Expert” Does Not Mean I Am Giving Expert Testimony
Monday, January 17, 2022
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David Adelstein - Florida Construction Legal Updates
On a construction project, it’s hard to argue that the involved parties — whether an architect, engineer, contractor, subcontractor, developer, etc. — are not experts in their field, i.e., they all some scientific, technical, or specialized knowledge or skill particular to their industry. However, this does NOT mean when they testify in trial, at an arbitration, or at a deposition regarding the construction project they are offering expert opinions / testimony as it pertains to that project. Testifying as to facts based on personal knowledge or involvement on a project makes you a fact witness and is different than evaluating and rending an after-the-fact opinion as to the work of others. This does not minimize your knowledge or expertise; it simply means that relative to the construction project you are involved with, your testimony is that of a fact witness and not of an expert. (It is possible to wear both the fact witness and expert witness hat, but that depends on your subsequent role in the litigation or arbitration.)
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com
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Attorney Tred R. Eyerly analyzes Bitters v. Nationwide Gen. Ins. Co.
Issues of Fact Prevent Insurer's Summary Judgment Motion in Collapse Case
Monday, January 17, 2022
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Tred R. Eyerly - Insurance Law Hawaii
The insurer's effort to dismiss the insured's collapse case by motion for summary judgment failed. Bitters v. Nationwide Gen. Ins. Co., 2021 U.S. Dist. LEXIS 228523 (E.D. Pa. Nov. 30, 2021).
The insured alleged that there was a "sudden and accidental direct physical loss" to his home caused by collapse due to hidden insect damage to the foundation. The insured came home to find the floor of a bedroom dropped down to the cement slab below. He filed a claim with Nationwide, but coverage was denied. Suit was filed and Nationwide moved for summary judgment.
The policy provided coverage for a sudden and accidental collapse caused by hidden insect damage. A building or part of a building was not considered in the state of collapse if it was standing, even if it was in danger of falling low or caving in.
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com
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ReGenesis found ways to leverage nearly $300 million in investments to address not only environmental issues, but also social and economic injustices within the Arkwright and Forest Park communities of Spartanburg.
Righting Past Wrongs Through Equitable Development
Monday, January 17, 2022
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Bruce Buckley & Pam Radtke Russell - Engineering News-Record
Standing on a dead-end street in Spartanburg, S.C., Harold Mitchell can plainly see the history of injustice in his community. On one side lies the remains of his childhood home. On the other, a shuttered fertilizer plant that was operational when Mitchell was growing up. He distinctly recalls smells of ammonia and sulfur emanating through the neighborhood that “were so pervasive, you didn’t even think about it.” He remembers his father regularly cleaning white dust off their cars, and workers emerging from the plant gates “looking like the Pillsbury Doughboy” covered in fertilizer dust from head to toe. Sometimes, he’d walk with the plant’s night watchman, strolling alongside neon green sewage lagoons located not far from his bedroom window.
Reprinted courtesy of Bruce Buckley, Engineering News-Record and Pam Radtke Russell, Engineering News-Record
ENR may be contacted at enr@enr.com
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The ruling immediately stops enforcement of the rule which had gone into effect on January 10, 2022.
U.S. Supreme Court Halts Enforcement of the OSHA Vaccine or Test Mandate
Monday, January 17, 2022
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Stephen E. Irving, Kevin J. O’Connor, Aaron C. Schlesinger & Lauren Rayner Davis - Peckar & Abramson
The United States Supreme Court today stayed enforcement of the OSHA emergency temporary standard (ETS) requiring employers with 100 or more employees to require employees either be “fully vaccinated” against COVID-19 or submit to weekly testing. The ruling immediately stops enforcement of the rule which had gone into effect on January 10, 2022.
Today’s order raises significant doubt as to whether the ETS requirement will ever take effect in its current form. A 6 to 3 majority of the Supreme Court justices issued the profound statement that the parties opposed to the rule “are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.” The Court went on to state that the OSH Act does not authorize the agency to “set . . . broad public health measures,” such as the found in the current emergency standard.
Reprinted courtesy of Stephen E. Irving, Peckar & Abramson, Kevin J. O’Connor, Peckar & Abramson, Aaron C. Schlesinger, Peckar & Abramson and Lauren Rayner Davis, Peckar & Abramson
Mr. Irving may be contacted at sirving@pecklaw.com
Mr. O'Connor may be contacted at koconnor@pecklaw.com
Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com
Ms. Davis may be contacted at ldavis@pecklaw.com
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These amendments will be unduly onerous on both carriers and defense counsel—for a multitude of reasons.
New York’s 2022 Comprehensive Insurance Disclosure Act: Significant Amendments to the C.P.L.R.
Monday, January 17, 2022
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Ellen H. Greiper & Kristen Carroll - Lewis Brisbois
New York, N.Y. (January 4, 2022) - On December 31, 2021, New York State Governor Hochul signed into law the Comprehensive Insurance Disclosure Act.
The alleged justification for the act was to reduce the use of “delaying tactics” by compelling disclosure of the complete primary, excess, and umbrella policies implicated by the claim.
These amendments will be unduly onerous on both carriers and defense counsel—for a multitude of reasons. It imposes an obligation on the insurer to immediately identify excess policies, eroding policies, and other information or contracts that affect the available coverage.
Reprinted courtesy of Ellen H. Greiper, Lewis Brisbois and Kristen Carroll, Lewis Brisbois
Ms. Greiper may be contacted at Ellen.Greiper@lewisbrisbois.com
Ms. Carroll may be contacted at Kristen.Carroll@lewisbrisbois.com
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Pacific Coast Tsunami News Wrap
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Some smart economists are challenging the conventional wisdom that the Great Recession was triggered by out-of-control home prices.
There Was No Housing Bubble in 2008 and There Isn’t One Now
Monday, January 17, 2022
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Ramesh Ponnuru - Bloomberg
Housing markets are red hot, with prices up more than 18% from November 2020 to November 2021. That’s an acceleration over the previous two years, which saw increases of 4% and 8% each. It’s also a faster rate than the U.S. experienced during the housing boom of the 2000s that preceded the Great Recession.
That comparison is causing some heartburn. “Are we in another housing bubble?” asked Mark Zandi, chief economist at Moody’s. The consensus, shared by Zandi, is that the answer is no — or, at least, that today’s bubble is different and less dangerous than the last one. Lending standards are more strict than they were 15 years ago, for example, which ought to mean that fewer homeowners are at risk of defaulting if prices fall.
Reprinted courtesy of Ramesh Ponnuru, Bloomberg
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The intros were a small part of Amazon’s community relations campaign.
Amazon HQ2 Puts Concrete on an Embodied Carbon Diet
Monday, January 17, 2022
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Nadine M. Post - Engineering News-Record
Before the ground-breaking for Amazon’s 2.1-million-sq-ft Metropolitan Park office development across the Potomac River from the nation’s capital, Clark Construction Group’s John Swagart and Jeff King walked door to door, introducing themselves to shopkeepers near the MetPark site. The good-will ambassadors were pounding the pavement to inform MetPark’s neighbors of the plan to dig a 50-ft-deep hole—710 ft x 310 ft—and create two 22-story buildings.
Reprinted courtesy of Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com
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OSHA has set clear regulations for working with this substance.
Working Safely With Silica: Health Hazards and OSHA Compliance
Monday, January 17, 2022
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Rick Pedley - Construction Executive
About 2.3 million American workers are exposed to silica, including those in construction, oil and gas, agriculture and manufacturing. Silica is commonly found in a range of construction materials and when this material breaks apart, small particles are released into the air, creating what’s known as respirable crystalline silica. These particles can get into a person’s respiratory tract, which can lead to a range of serious and potentially fatal illnesses including silicosis, lung cancer, chronic obstructive pulmonary disease and kidney diseases.
The Occupational Safety and Health Administration has set clear regulations for working with this substance, so construction workers and managers can know the risks of inhaling this substance and protect themselves on the job site.
What is Silica?
Crystalline silica is a mineral that forms naturally in the earth. Raw construction materials such as sand, stone, concrete and mortar often contain deposits of crystalline silica, which can put employees at risk. Silica becomes a danger to workers when it is released into the air and breathed in.
Reprinted courtesy of Rick Pedley, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Here are the key points to ensure you are in compliance.
Cal/OSHA ETS: Newest Version Effective Today
Monday, January 17, 2022
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Amy R. Patton, Matthew C. Lewis & Rana Ayazi - Payne & Fears
The newest version of the Cal/OSHA ETS goes into effect today, Jan. 14, 2022, and will expire on April 15, 2022. A redline of the recently expired Cal/OSHA ETS and the newest Cal/OSHA ETS is available HERE. The newest Cal/OSHA ETS, which was drafted prior to Dec. 16, 2021, is already partially out-of-date based on the California Department of Public Heath’s Guidance For the Use of Masks (released Jan. 5, 2022) and the CDPH’s Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public (released Jan. 8, 2022); these changes have been addressed in the Cal/OSHA ETS FAQs.
With all of these changes occurring (not to mention all of the litigation surrounding the now-stayed federal OSHA ETS), California employers are asking: How do I comply with the current Cal/OSHA ETS and the updated CDPH Guidance? Here are the key points to ensure you are in compliance:
- New Shorter Isolation and Quarantine Periods
Isolation: When an employee has COVID-19 (even without symptoms).
- Day 0: First day of symptoms or the day a positive test specimen was collected. Begin isolation.
- Day 1: First full day after symptoms developed or positive test specimen was collected.
- Day 5: Recommended day to take COVID-19 test.
Reprinted courtesy of Amy R. Patton, Payne & Fears, Matthew C. Lewis, Payne & Fears and Rana Ayazi, Payne & Fears
Ms. Patton may be contacted at arp@paynefears.com
Mr. Lewis may be contacted at mcl@paynefears.com
Ms. Ayazi may be contacted at ra@paynefears.com
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