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La Habra Condo Residents Dealing with Two Massive Sinkholes
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If a contractor brings an action for the collection of compensation or sues for breach of contract for work they performed, that individual is required to allege and prove that, at the time they performed the work, they were a registered contractor.
Contractors Must Register with the L&I Prior to Offering or Performing Work, or Risk Having their Breach of Contract Case Dismissed
Monday, March 27, 2023
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Jill Guingcangco - Ahlers Cressman & Sleight PLLC
The Washington State Legislature has an interest in protecting the public from “unreliable, fraudulent, financially irresponsible, or incompetent contractors” (RCW 18.27.140), which is why contractors are required to register with the Department of Labor and Industries (“L&I”) before advertising, offering to do work, or performing any work as a contractor. RCW 18.27.020. Accordingly, if a contractor brings an action for the collection of compensation or sues for breach of contract for work they performed, that individual is required to allege and prove that, at the time they performed the work, they were a registered contractor. RCW 18.27.080.
In Dobson v. Archibald,1 Dobson worked as a longshoreman, but also simultaneously performed home repair work for pay during her off time. Dobson never registered as a contractor with L&I. Dobson acquired customers for her home repair work through a referral process. Dobson was referred to Archibald through a mutual friend who Dobson performed some home repair work for. Archibald subsequently hired Dobson to refinish the hardwood floors in Archibald’s home.
Reprinted courtesy of Jill Guingcangco, Ahlers Cressman & Sleight PLLC
Ms. Guingcangco may be contacted at jill.guingcangco@acslawyers.com
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Kyle Brown was a carpenter employed by subcontractor O’Rourke Construction, Inc. who contracted with general contractor Beach House Design and Development to provide finish carpentry on a construction project.
Summary Judgment in Favor of General Contractor Under Privette Doctrine Overturned: Lessons Learned
Monday, March 27, 2023
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Garret Murai - California Construction Law Blog
It seems like we’ve been seeing a lot of Privette doctrine cases recently. Here’s another, Brown v. Beach House Design & Development, 85 Cal.App.5th 516 (2002), which provides a cautionary tale for general contractors to watch what they include in their scope of work and how they manage projects.
The Beach House Case
Kyle Brown was a carpenter employed by subcontractor O’Rourke Construction, Inc. who contracted with general contractor Beach House Design and Development to provide finish carpentry on a construction project. A&D Plastering Co., another subcontractor on the project, had erected scaffolding on the project.
On June 16, 2017, while using A&D’s scaffolding, Brown fell onto a concrete walkway where he suffered severe injuries. Following the accident, Beach House and A&D inspected the scaffolding and found that some of the scaffolding was not properly secured to the building and that planks, crossbars, ties and guardrails had been cut or were missing.
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com
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This was a creative claim and argument that deserves consideration because it tied in the contracting officer’s denial of the CDA claim for additional money with a breach of the duty of good faith and fair dealing.
Breach Of Duty of Good Faith And Fair Dealing Packaged With Contract Disputes Act Claim
Monday, March 27, 2023
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David Adelstein - Florida Construction Legal Updates
An interesting opinion on a motion to dismiss came out of the United States Court of Federal Claims dealing with the claim that the government breached its duty of good faith and fair dealing in administering the prime contract. The contractor’s argument was that the government breached its duty of good faith and fair dealing by denying the contractor’s claim under the Contract Disputes Act (CDA). This was a creative claim and argument that deserves consideration because it tied in the contracting officer’s denial of the CDA claim for additional money with a breach of the duty of good faith and fair dealing.
In this case, Aries Construction Corp. v. U.S., 2023 WL 2146598 (Fed. Cl. 2023), a prime contractor was hired for a water pipeline construction project. The contractor encountered unexpected difficult site conditions that required additional equipment and labor. The contractor informed the contracting officer and alleged it was instructed to proceed with the additional equipment and labor. The contractor submitted a claim under the CDA but the contracting officer denied the claim. The contractor pursued the claim in the United States Court of Federal Claims arguing the government breached the contract and, of interest, breached its duty of good faith and fair dealing.
The government moved to dismiss the breach of good faith and fair dealing claim arguing that besides failing to state a cause of action the Court of Federal Claims had no jurisdiction because the breach of the duty of good faith and fair dealing was not properly presented to the contracting officer under the CDA. The Court of Federal Claims denied the government’s motion.
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com
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US Construction Shows No Signs of Slowdown, Caterpillar CEO Says
March 27, 2023 — Joe Deaux - Bloomberg
Construction activity isn’t showing any signs of slowing down across North America this year, Caterpillar Inc.’s top executive said on the sidelines of the industry’s largest conference.
Even as some worry building demand could start to slow, especially if the US dips into a recession or if the collapse of Silicon Valley Bank infects other sectors, Caterpillar’s customers are still seeing new projects coming in, Chief Executive Officer Jim Umpleby said. And their outlook is pretty unanimous: That strength will last through at least the end of 2023.
Collateral Damage: How to Avoid the Pitfalls of Collateral Agreements
March 27, 2023 — Brian J. Clifford & Anna M. Perry - Saxe Doernberger & Vita, P.C.
Although collateral agreements provide security for insurers on policies with large deductibles, they can create hardships for insureds that are out of proportion with the insurers’ security concerns. Insurers require collateral as security for the repayment of insureds’ deductible obligations for large-deductible liability insurance policies. But collateral agreements also can tie up millions of dollars of insureds’ money for long periods of time and leave insureds with no way of recovering their money once the collateral has served its purpose.
Reprinted courtesy of Brian J. Clifford, Saxe Doernberger & Vita, P.C. and Anna M. Perry, Saxe Doernberger & Vita, P.C.
Mr. Clifford may be contacted at BClifford@sdvlaw.com
Ms. Perry may be contacted at APerry@sdvlaw.com
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Women Breaking New Ground in Homebuilding
March 27, 2023 — Shea Homes / PRNewswire
MARINA, Calif., March 14, 2023 /PRNewswire/ -- When J.F. Shea Company began a small plumbing company 142 years ago, there were virtually no women in the construction workforce. Today women in the homebuilding industry have a strong representation in sales, marketing, legal, and finance, but there are still relatively few women in the field of construction.
Shea Homes, one of the country's largest privately held homebuilders, is proud to help change that. Shea hired Teichert Construction, who employs an all-women crew, to prepare sites for new homes at The Dunes and The Enclave in Monterey County. Driving huge earth movers to create roads, infrastructure and homesites is no small task. Maneuvering heavy equipment with names like scrapers, rollers, blades and skip loaders requires tremendous skill and precision.
Shea Homes has been transforming the former US Army base of Fort Ord in Marina, California into a modern residential community that combines sustainability features with a connection to the natural environment. When complete, The Dunes will have over 1,200 homesites and is expected to include a main street promenade, hotels, restaurants, art walk, shopping and entertainment, just across Highway 1 from one of California's most picturesque State Beaches.
2023 West Coast Casualty Construction Defect Seminar
March 28, 2023 — Beverley BevenFlorez – CDJ Staff
The 29th annual West Coast Casualty Construction Defect Seminar will return to the Disneyland Hotel in May. The event covers topics of interest to those in the construction defect field including prosecution, defense, insurance coverage, and science and technology. The seminar will also have networking opportunities. Attendees every year include professionals “from the legal, insurance, builder, contractor, subcontractor and numerous other communities.”
May 18th-19th, 2023
Disneyland Hotel
1150 Magic Way
Anaheim, CA 92802
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Effective January 1, 2023, VOSBs and SDVOSBs will be required to obtain SBA certification to participate in any federal government agency VOSB or SDVOSB sole source or set-aside prime contracts.
New Certification Requirements for Veteran-Owned Small Business Concerns and Service-Disabled Veteran-owned Small Business Concerns Seeking Public Procurement Contracts
Monday, March 27, 2023
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Jennifer Harris, Timothy D. Matheny & Abby Bello Salinas - ConsensusDocs
Effective January 1, 2023, Veteran-Owned Small Business Concerns (VOSBs) and Service-Disabled Veteran-Owned Small Business Concerns (SDVOSBs) will be required to obtain Small Business Administration (SBA) certification to participate in any federal government agency VOSB or SDVOSB sole source or set-aside prime contracts. This change originated from a Final Rule (87 FR 73400) published by the SBA on November 29, 2022. As a result of this Final Rule, not only will VOSBs and SDVOSBs be required to re-visit, and in some cases re-apply for various certifications, but these new regulations will also impact joint ventures that rely on their member’s VOSB or SDVOSB status to bid public work.
New Regulation
Previously, a VOSB and SDVOSB could self-certify to perform set-aside and sole source projects on non-U.S. Department of Veteran Affairs (VA) procurements—a VOSB and SDVOSB only needed to be certified by the VA Center for Verification and Evaluation (CVE) when bidding on VA procurements contingent on its status.
Reprinted courtesy of Jennifer Harris, Peckar & Abramson, P.C., Timothy D. Matheny, Peckar & Abramson, P.C. and Abby Bello Salinas, Law Clerk, Peckar & Abramson, P.C.
Ms. Harris may be contacted at jharris@pecklaw.com
Mr. Matheny may be contacted at tmatheny@pecklaw.com
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A hurricane damaged Cloisters, a condominium.
Insurer Ordered to Participate in Appraisal
Monday, March 27, 2023
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Tred R. Eyerly - Insurance Law Hawaii
The court found that the insured's request for an appraisal was timely and ordered the insurer to participate. Cloisters of Naples, Inc v. Landmark Am. Ins. Co., 2023 U.S. Dist. LEXIS 6884 (M.D. Flag. Jan. 13, 2023).
A hurricane damaged Cloisters, a condominium. Cloisters made a claim under its commercial insurance policy with Landmark. Landmark acknowledged coverage but failed to pay what Cloisters thought was needed. Cloisters sued.
The policy had a standard appraisal provision, but another clause had a suit litigation provision requiring a request for appraisal within two years after physical loss to the property. The dispute was whether Florida law, allowing appraisal clauses to be valid for 130 years, or Georgia law, which had no such extension on requesting an appraisal. Landmark contended the contract was formed in Georgia, so its law should apply. Florida followed the lure of lex loci, which provided that the law of the jurisdiction where the contract was executed governed.
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com
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Is there a way to address empty office buildings and a housing shortage at once by converting historic but underutilized office buildings into apartments and condos in city centers?
Adaptive Reuse: Creative Reimagining of Former Office Space to Address Differing Demands
Monday, March 27, 2023
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Cait Horner, Allan C. Van Vliet & Adam J. Weaver - Gravel2Gavel Construction & Real Estate Law Blog
Empty office buildings downtown. A housing shortage in almost every major market. Is there a way to address both issues at once by converting historic but underutilized office buildings into apartments and condos in city centers? It’s an idea that has been discussed, and in some cities, implemented in recent years. But while the idea seems simple enough—repurpose existing office space for residential and mixed-use projects—there are some real challenges limiting the feasibility of large-scale office to residential conversion.
The commercial real estate market is facing an uncertain future. Even as some companies have started requiring that their workers return to the office, many continue to operate under their hybrid or fully remote working models, which companies may commit to permanently. And while some big cities have seen office occupancy levels increase in the past few months (CBRE notes that Austin and Houston both saw occupancy levels above 60% in January, up around 25% from 2022 levels), the ongoing impact of COVID-19 and uncertainty in the global financial markets are keeping many office buildings empty in major cities around the country. Those tenants who are returning to the office are focusing their search for office space on high-quality, sustainable, amenity-filled spaces to entice workers to return to the office. This flight to quality leaves some older and, in many cases, architecturally relevant, office buildings behind. As a result, there are growing opportunities for the potential adaptive reuse of these existing underutilized structures.
Reprinted courtesy of Cait Horner, Pillsbury, Allan C. Van Vliet, Pillsbury and Adam J. Weaver, Pillsbury
Ms. Horner may be contacted at cait.horner@pillsburylaw.com
Mr. Van Vliet may be contacted at allan.vanvliet@pillsburylaw.com
Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com
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The award is named after the late Judge Jerrold S. Oliver who is considered a “founding father” in the alternate resolution process in construction claims and litigation.
Congratulations to Partner Vik Nagpal on his Nomination for West Coast Casualty’s Jerrold S. Oliver Award of Excellence!
Monday, March 27, 2023
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Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is honored to share that Downtown San Diego and Encinitas Managing Partner Vik Nagpal is nominated for West Coast Casualty’s Jerrold S. Oliver Award of Excellence!
Every year, West Coast Casualty recognizes an individual who is committed, trustworthy, and has contributed to the betterment of the construction defect community. The award is named after the late Judge Jerrold S. Oliver who is considered a “founding father” in the alternate resolution process in construction claims and litigation. Each year, members of the construction community are asked to nominate individuals who invoke the same spirit as Judge Oliver.
Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
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The mission of the NAWL is to provide leadership, a collective voice and essential resources to advance women in the legal profession and advocate for the equality of women under the law.
Hunton Insurance Lawyer, Adriana Perez, Selected to the National Association of Women Lawyers’ 2023 Rising List
Monday, March 27, 2023
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Hunton Insurance Recovery Blog
Congratulations to Adriana Perez on her selection to the National Association of Women Lawyers’ (NAWL) 2023 Rising List. Adriana is a member of Hunton Andrews Kurth’s national Insurance Recovery practice and is based in the Firm’s Miami, Florida office.
Hunton Insurance Recovery Partner, Michael Levine, commented on the enormous success the team has had in recent years, with recognitions like Adriana’s being emblematic of the team’s high caliber practice and visibility. Team Head, Syed Ahmad, added that the recognition is a tribute to Adriana’s growth as a young lawyer and her trajectory to become an industry leader.
Reprinted courtesy of Hunton Andrews Kurth LLP
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The Leopard Law Firm Index provides insights into law firm health and stability, using a robust list of criteria.
Lewis Brisbois Listed as Top 10 Firm of 2022 on Leopard Solutions Law Firm Index
Monday, March 27, 2023
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Lewis Brisbois Newsroom
Los Angeles, Calif. (March 17, 2023) – Lewis Brisbois has been listed among the top 10 law firms on the 2022 Leopard Law Firm Index. Billed as "the legal industry's most inclusive and up-to-date firm rating system," the index, published by Leopard Solutions, is a dynamic rating system that is updated twice weekly and focuses on law firms' profitability, viability, growth, and potential opportunity. Each year, Leopard Solutions compiles a list of the index firms' overall scores for the previous year. For 2022, Lewis Brisbois ranked 8th, with an aggregate score of 446 out of a possible 500. Other firms in the top 10 include Kirkland & Ellis, Ropes & Gray, and DLA Piper.
The Leopard Law Firm Index provides insights into law firm health and stability, using a robust list of criteria. This includes growth in attorney headcount, average attorney tenure, increases in revenue per lawyer (RPL) over a five-year period, relative success in lateral recruiting, and general retention of partners and associates, as well as the overall diversity within a firm. In an interview with Law360 Pulse, Leopard Solutions VP of Sales & Marketing Phil Flora noted that the top 10 firms are some of the largest firms with above average ethnic diversity.
Reprinted courtesy of Lewis Brisbois
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Montebello Tornado: Business Owners Survey Extensive Damage to Buildings
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A social media campaign resulted in litigation on February 16, 2021, when Billauer sued Escobar-Eck for libel due to her tweet to Wells Fargo.
California Court of Appeal Affirms Trial Court’s Denial of anti-SLAPP Motion in Dispute Over Construction of Church Facilities
Monday, March 27, 2023
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Garrett A. Smee & Lawrence S. Zucker II - Haight Brown & Bonesteel LLP
On February 28, 2023, the California Fourth District Court of Appeal, Division One, issued an opinion in Billauer v. Escobar-Eck (D079835), affirming the trial court’s denial of an anti-SLAPP motion stemming from a public debate over a Church construction project.
The Appellant (Billauer) ran several social media sites as a “neighborhood activist.” The Respondent (Escobar-Eck) ran a land use and strategic planning firm in San Diego. The “All People’s Church” had hired Escobar-Eck’s company in 2019 to obtain City approval for a Church campus. During a Zoom presentation by Escobar-Eck to a Church planning group on November 11, 2020, Billauer, as a participant in the meeting sent a chat to Escobar-Eck stating: “I’m going to make sure you get sent back to where you came from.” Over the span of the next six months, from November 11, 2020 to April 8, 2021, Billauer continued the onslaught through a series of five posts on Instagram and Facebook, attacking Escobar-Eck. On December 10, 2020, Escobar-Eck fired back with a Twitter post to Billauer’s employer, Wells Fargo, labeling Billauer as a cyberbullying racist.
Reprinted courtesy of Garrett A. Smee, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Smee may be contacted at gsmee@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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This article includes steps employers should consider following a workplace incident on a construction site.
4 Steps to Take When a Worker Is Injured on Your Construction Site
Monday, March 27, 2023
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Zachary Perecman - Construction Executive
The construction industry continues to be one of the fastest-growing labor trades. According to the Center for Construction Research and Training, since 2019, 11.4 million U.S. workers have been employed in construction, a 25% increase from 2011. Amid this growth, the industry has remained one of the most dangerous, and workers are often at higher risk of injuries and deaths due to occupational incidents. According to the U.S. Bureau of Labor Statistics, there are 150,000 injuries on construction work sites annually.
Under Occupational Health and Safety Administration (OSHA) law, employers have a responsibility to provide a safe work environment. That includes providing a workplace that is free of serious recognized hazards. Despite best efforts in implementing risk-mitigation and safety protocols, employers must be prepared with an incident procedure should an incident occur on a jobsite. Taking immediate, clear actions can impact the severity and outcome of injuries from a workplace incident. With this in mind, employers should take the lead in implementing safety procedures for injuries on construction sites and should inform all safety site managers and workers of the steps that should be taken.
Reprinted courtesy of Zachary Perecman, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Amazon says it is delaying plans to move forward with its second headquarters in Arlington, Va.
Amazon Hits Pause on $2.5B HQ2 Project in Arlington, Va.
Monday, March 27, 2023
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Jim Parsons - Engineering News-Record
Amazon is tapping the brakes on its $2.5-billion HQ2 second headquarters project in Arlington County, Va., announcing an indefinite delay to the start of the program’s 2.8-million-sq-ft second phase, known as PenPlace.
Reprinted courtesy of Jim Parsons, Engineering News-Record
ENR may be contacted at enr@enr.com
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“Construction companies appear increasingly confident about the year-ahead business outlook, with optimism rebounding strongly from the lows seen in the final quarter of 2022,” said Tim Moore, economics director at S&P Global Market Intelligence.
UK Construction Output Rises Unexpectedly to Strongest Since May
Monday, March 27, 2023
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Lucy White - Bloomberg
UK construction industry output grew for the first time in two months in February, boosting hopes that the economy may avoid a prolonged recession.
A rebound in commercial and civil engineering work helped to compensate for continued gloom in the housing market, where buying activity has been depressed by higher mortgage rates and the cost-of-living crisis.
The closely-watched Construction Purchasing Managers’ Index from S&P Global and the Chartered Institute of Procurement and Supply jumped to 54.6 in February, up from 48.4 a month earlier and the highest since May 2022.
It was the first time in three months that activity was above the crucial no-change level of 50. Economists had expected a decline.
Reprinted courtesy of Lucy White, Bloomberg
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