You Say Tomato, I Say Tomahto. But When it Comes to the CalOSHA Appeals Board, They Can Say it Any Way They Please
January 08, 2024 —
Garret Murai - California Construction Law BlogWe lawyers do a fair amount of reading. Documents. Court decisions. Passive aggressive correspondence from opposing counsel. As well as statutes, regulations and administrative guidance. And you might be surprised how often words can be ascribed very different meanings depending on who is reading it. Such, I suppose, is the nature of language. When it comes to public agency interpretations of its own regulations, however, you would be well to heed that authors are often the best interpreters of their own works, or at least that’s how the courts tend to view it, as in the next case L & S Framing Inc. v. California Occupational Safety and Health Appeals Board, Case No. C096386 (July 24, 2023).
The L & S Framing Case
Martin Mariano, an employee of L & S Framing, Inc., suffered a brain injury when he fell from the “second floor” while working on a single family house. What, exactly, this “second floor” was, was a point of a contention in the legal case that followed.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
How I Prevailed on a Remote Jury Trial
March 04, 2024 —
Samuel Yu - Kahana FeldAre you crazy? That is what I asked my client when he asked me to conduct a jury trial remotely. At the time, I did not even know if it was feasible. While I figured that most courtrooms had remote capabilities, I was not sure whether anyone was crazy enough to do a jury trial remotely and whether a courtroom would accommodate it. Would I be able to truly connect with the jurors? Would the jurors hold it against me that I am appearing remotely while they have to be there in person? I told my client that this was a terrible idea but that I would at least see if it was an option.
At the Final Status Conference, the Court confirmed that it could accommodate a remote appearance for both the party and the party’s counsel and gave its permission to do so. It was also clear that I would be the only attorney exercising this option, and the judge remarked that this would be a first for him. Appearing remotely while other attorneys appear in person is not something I would normally consider. However, this case presented a unique set of circumstances.
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Samuel Yu, Kahana FeldMs. Yu may be contacted at
syu@kahanafeld.com
Beyond the Statute: How the Colorado Court Upheld Modified Accrual in Construction Contracts
November 13, 2023 —
Hal Baker - Colorado Construction Litigation BlogIn a case of first impression, the First Division of the Colorado Court of Appeals recently reviewed whether parties may contractually alter the accrual time established by Colorado’s statute of limitations for construction defect actions, C.R.S. § 13-80-104, in South Conejos Sch. Dist. RE-10 v. Wold Architects, Inc., 2023 COA 85 (2023), decided on September 21, 2023. The Court held that sophisticated parties may contractually alter the accrual time standards, enlarging the accrual time as was the issue in this case. Notably, the Court’s decision was made in the context of commercial construction, not residential.
The issue in South Conejos Sch. Dist. RE-10 arose from the construction of a school in Antonito, Colorado. Prior to construction, the South Conejos School District RE-10 (the “School District”) and Wold Architects, Inc. (“Wold”) entered a contract that provided:
Unless a longer period is provided by law, any action against [Wold] brought to recover damages for deficiency in the design, planning, supervision, inspection, construction or observation of construction or for injury to person or property shall be brought within two years after the claim for relief arises and is discovered by [the District]; … “Discovered” as used herein means detection and knowledge by [the District] of the defect in the improvement that ultimately causes the injury, when such defect is of a substantial or significant nature.
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Hal Baker, Higgins, Hopkins, McLain & Roswell, LLCMr. Baker may be contacted at
baker@hhmrlaw.com
More Clear, But Not Yet Crystal: Virginia Amends its Prompt Payment Law and Legislation Banning “Pay-If-Paid Clauses in Construction Contracts Effective July 1, 2023
November 16, 2023 —
Hanna Lee Blake - ConsensusDocsThe Virginia General Assembly has joined a minority of jurisdictions that ban pay-if-paid clauses in construction contracts on public and private projects. Senate Bill 550 went into effect applying to contracts executed after January 1, 2023, and most recently has been amended effective July 1, 2023. This update highlights the recent amendments to Virginia’s prohibition against pay-if-paid provisions, of which owners and contractors should be aware to ensure that their contracts comply with developing law in the Commonwealth.
Recap on Senate Bill 550
On April 27, 2022, the Virginia General Assembly passed Senate Bill 550, which amended Virginia Code §§ 2.2-4354 and 11-4.6, which govern both public and private sector contracts. In short, SB 550 (as the bill is commonly known) prohibited pay-if-paid clauses, and established fixed deadlines for the payment of invoices on private projects. Previously, Virginia’s Prompt Payment Act only applied to public projects.
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Hanna Lee Blake, Watt TiederMs. Blake may be contacted at
hblake@watttieder.com
Compliance with Contractual and Jurisdictional Pre-Suit Requirements is Essential to Maximizing Recovery
November 27, 2023 —
Michael S. Levine, Geoffrey B. Fehling & Charlotte Leszinske - Hunton Insurance Recovery BlogTimely notice is an important first step in a successful insurance recovery. But insurance policies are not always straightforward in identifying how, when, and to whom notice must be provided. Some states may also impose additional procedural hurdles, including requiring policyholders to contact their insurers before filing suit (the idea behind this requirement is that it may avoid litigation). Failing to comply with pre-suit requirements can hurt the policyholder’s recovery, as illustrated in a recent decision from the Northern District of Texas.
In NewcrestImage Holdings, LLC v. The Travelers Lloyds Insurance Company, No. 2:23-cv-039-BR (N.D. Tex. Oct. 17, 2023), the court considered whether NewcrestImage had forfeited its right to recover attorneys’ fees by failing to give Travelers pre-suit notice. NewcrestImage had filed suit against Travelers to obtain coverage for damage to its hotel property arising out of Winter Storm Uri. In its answer, Travelers asserted that NewcrestImage failed to provide the insurer with pre-suit notice as required under the Texas Insurance Code, and that if NewcrestImage successfully proved it was entitled to coverage, NewcrestImage’s failure to provide pre-suit notice precluded it from recovering attorneys’ fees. Travelers later moved to strike the claim for attorneys’ fees on that basis.
Reprinted courtesy of
Michael S. Levine, Hunton Andrews Kurth,
Geoffrey B. Fehling, Hunton Andrews Kurth and
Charlotte Leszinske, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Fehling may be contacted at gfehling@HuntonAK.com
Ms. Leszinske may be contacted at cleszinske@HuntonAK.com
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Construction Contract Basics: Venue and Choice of Law
February 19, 2024 —
Christopher G. Hill - Construction Law MusingsPreviously in this on-again-off-again series of posts on construction contract basics, I discussed attorney fees provisions and indemnification. In this installment, the topic at hand is venue and choice of law.
As construction professionals (outside of us construction attorneys), you are likely to be focused on things like the scope of work in a construction contract, the price terms, payment, delays, change orders, and the like. However, the venue (where any lawsuit or arbitration will have to happen) and the choice of law (what state’s law applies) can be equally important. You need to know where you will have to enforce your rights under the contract and also what law will apply. Will you need to go to another state to enforce your rights? Even if not, will your local attorney have to learn the law of another jurisdiction? These are important questions when reading and negotiating your prime contract (if with the owner) or subcontract (if with the general contractor).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Congratulations to Haight Attorneys Selected to the 2024 Southern California Super Lawyers List
January 29, 2024 —
Haight Brown & Bonesteel LLPHaight attorneys have been selected to the 2024 Southern California Super Lawyers list.
Congratulations to:
- Bruce Cleeland
- Peter A. Dubrawski
- Angela S. Haskins
- Gary L. LaHendro
- Denis J. Moriarty
- Jennifer K. Saunders
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Haight Brown & Bonesteel LLP
Future Army Corps Rulings on Streams and Wetlands: Changes and Delays Ahead
November 06, 2023 —
Mark Sudol - Engineering News-RecordNew regulations published by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers dramatically reduce federal protections of previously regulated streams and wetlands. This change will lead to further controversy and litigation as the legal terms are applied to physical features on the ground leading to conflicting interpretations by the regulated public, environmentalists and federal agencies.
Reprinted courtesy of
Mark Sudol, Engineering News-Record
ENR may be contacted at enr@enr.com
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