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2024 Construction Law Update

December 23, 2023 — Garret Murai - California Construction Law Blog
We would like to wish you and yours a happy holiday season as we approach 2024. The first half of the 2023-2024 legislative session saw the introduction of 3,028 bills, which, according to legislative observers, are the most bills introduced in a session in more than a decade, perhaps reflecting the fact that California has a record number of new legislators with over a quarter taking the oath of office for the first time. Of these bills, Governor Newsom signed nearly 400 into law including several impacting the construction industry related to climate change and housing affordability. Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Haight Celebrates 2024 New Partner Promotions!

January 22, 2024 — Haight Brown & Bonesteel LLP
Haight is celebrating new partner promotions in 2024. Congratulations to Gary LaHendro, Melvin Marcia and Philip McDermott! Gary LaHendro became a member of the California State Bar in December 1993. He is a member of the Risk Management & Insurance Law Practice Group. He focuses his practice on insurance coverage and bad faith litigation. Gary’s clients include carriers within the United States and London Markets for whom he has provided coverage advice on various lines of coverage, including commercial general liability, excess, errors and omissions, auto, and representations and warranties. Gary also monitors the defense of insureds with respect to third-party lawsuits. In addition to coverage work, Gary has over 20 years of litigation experience as lead defense counsel on cases involving soil and groundwater contamination, professional liability, construction defect and personal injury cases. He is also a skilled appellate attorney and Certified Mediator. Melvin Marcia became a member of the California State Bar on June 1, 2016. Melvin is a member of the firm’s Transportation Law, General Liability, Product Liability and Fire Litigation Practice Groups. His practice focuses on litigation of high value cases, ranging from catastrophic injury, wrongful death, premises liability, business disputes, product liability, uninsured/underinsured arbitrations and subrogation matters. Read the full story...
Reprinted courtesy of Haight Brown & Bonesteel LLP

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Unjust Enrichment Claims When There Is No Binding Contract

December 04, 2023 — David Adelstein - Florida Construction Legal Updates
A recent appellate opinion starts off, “This is a typical South Florida construction dispute.” (See case citation at the bottom) Let’s see, is it? No. It’s a garden variety payment dispute where the parties did NOT have a binding contract. Why? That’s for a different day (because the smart practice is ALWAYS to have a contract!) but it touches on the equitable, unjust enrichment claim. And it touches on competing unjust enrichment claims and the apportionment of those claims. In other words, can both parties be right on their unjust enrichment claims? An owner hired a general contractor for home renovations. Work started but the relationship soured and the general contractor did not complete the work. The general contractor filed a payment dispute against the owner based on unpaid invoices. It pled alternative theories of recovery against the owner: breach of contract and unjust enrichment. The owner filed a counterclaim against the general contractor for the same claims. During the non-jury trial, the general contractor presented unpaid invoices along with testimony that the invoices represented the value of services rendered. The owner presented evidence of the completion of work damages. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Contract Void Ab Initio: Key Insights into the KBR vs. Corps of Engineers Affirmative Defense

February 12, 2024 — Matthew DeVries - Best Practices Construction Law
In a recent Board decision dated December 13, 2023, the United States Army Corps of Engineers sought to amend its answer in the case of APPEALS OF – KELLOGG BROWN & ROOT SERVICES, INC., under Contract No. W912GB-13-C-0011. The proposed amendment introduces an affirmative defense, contending that Kellogg Brown & Root Services, Inc. (KBR) made material misrepresentations in its proposal, rendering the fully-performed contract void ab initio. Background: The contract in question, executed on July 9, 2013, was for the construction of an Aegis Ashore Missile Defense System site in Deveselu, Romania, with a firm, fixed-price amount of $134,211,592. The Corps moved to amend its answer to allege that KBR’s material misrepresentations induced the Corps to enter the contract, justifying the voiding of the contract. The alleged misrepresentations include issues related to subcontractor quotes, firm fixed prices, subcontracting plans, and more. Motion to Amend and Legal Defense: The Corps, despite delays in formally amending its answer, argued that KBR was aware of the potential affirmative defense before the conclusion of fact discovery. The proposed affirmative defense asserts that KBR made eight material misrepresentations in its proposal, upon which the Corps relied in awarding the contract and defending against a GAO protest. Read the full story...
Reprinted courtesy of Matthew DeVries, Burr & Forman LLP
Mr. DeVries may be contacted at mdevries@burr.com

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Cooperating With Your Insurance Carrier: Is It a Must?

January 02, 2024 — Susana Arce - Saxe Doernberger & Vita, P.C.
A majority of insurance policies require the insured to cooperate with the insurer. The cooperation clause generally states, “the insured agrees to Cooperate with us in the investigation, settlement or defense of the suit.” The “cooperation clause” is often an afterthought because once litigation has ensued an insured is focused on other important considerations. However, insureds should not forget that complying with the cooperation clause can make the difference between the insurer covering or denying a claim. The Cooperation Clause in Action The Court in HDI Glob. Specialty SE v. PF Holdings, LLC,1 highlighted the importance of cooperating with an insurance carrier. In the underlying litigation, residents of an apartment complex sued four entities, all insured by the same insurance policy: two were named insureds and two were additional insureds. The primary insurer provided a defense for the named insureds. Read the full story...
Reprinted courtesy of Susana Arce, Saxe Doernberger & Vita, P.C.
Ms. Arce may be contacted at SArce@sdvlaw.com

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Rulemaking to Modernize, Expand DOI’s “Type A” Natural Resource Damage Assessment Rules Expected Fall 2023

December 23, 2023 — Amanda G. Halter, Jillian Marullo & Ashleigh Myers - Gravel2Gavel Construction & Real Estate Law Blog
The U.S. Department of the Interior (DOI) anticipates proposing a new rule that would revise its “Type A” Natural Resource Damage Assessment (NRDA) regulations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in Fall 2023. The proposed rule would modernize DOI’s rarely used simplified Type A procedures for assessing damages for natural resource injuries tailored at sites involving minor releases of hazardous substances, with a smaller scale and scope of natural resource injury occurring in either coastal and marine areas or Great Lakes environments (the “Type A Rule”). (See 88 Fed. Reg. 3373; see 43 C.F.R. Pt. 11 Subpt. D.) The Type A Rule was last updated in 1997. DOI previewed the proposal in January 2023 in its Office of Restoration and Damage Assessment’s (ORDA) Advanced Notice of Proposed Rulemaking (ANPR). In the ANPR, the ORDA surmised that the Type A Rule was rarely used in part because of its restricted scope, but also because “the model equation for each Type A environment is the functional part of the rule itself—with no provisions to reflect evolving toxicology, ecology, technology, or other scientific understanding without a formal amendment to the Type A Rule each time a parameter is modified.” Calling the existing rule “inefficient and inflexible,” the ORDA stated that its proposal to reformulate the rule “as a procedural structure” would “modernize the Type A process and develop a more flexible and enduring rule than what is provided by the two existing static models” (88 Fed. Reg. 3373). Reprinted courtesy of Amanda G. Halter, Pillsbury, Jillian Marullo, Pillsbury and Ashleigh Myers, Pillsbury Ms. Halter may be contacted at amanda.halter@pillsburylaw.com Ms. Marullo may be contacted at jillian.marullo@pillsburylaw.com Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com Read the full story...

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Construction Attorneys Get an AI Assist in Document Crunch

May 20, 2024 — Jeff Yoders - Engineering News-Record
Artificial intelligence is often touted as a gamechanger for construction processes, and Document Crunch, a company co-founded by a longtime construction attorney, is already changing up one key area: construction contracts. Reprinted courtesy of Jeff Yoders, Engineering News-Record Mr. Yoders may be contacted at yodersj@enr.com Read the full story...

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Seabold Construction Ties Demise to Dispute with Real Estate Developer

April 29, 2024 — Richard Korman - Engineering News-Record
When Harry W. Seabold, co-founder and CEO of Seabold Construction, died unexpectedly in January 2023 at age 69, the Beaverton, Ore.-based general contractor, which had been in business since 1984, kept chugging along for a year on two adjacent North Portland apartment projects. Reprinted courtesy of Richard Korman, Engineering News-Record Mr. Korman may be contacted at kormanr@enr.com Read the full story...

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