Construction Litigation Roundup: “D’Oh!”
August 12, 2024 —
Daniel Lund III - LexologyThe U.S. DOL found itself on June 24 on the wrong end of a preliminary injunction concerning recent changes to the Davis-Bacon Act.
The lawsuit, initiated in Texas federal court by the Associated General Contractors of America and other concerned citizens, sought a preliminary injunction barring implementation and enforcement of “specified portions of § 5.2 and § 5.5(e) of the DOL’s ‘Updating the Davis-Bacon and Related Acts Regulations’” – the “Final Rule,” published August 23, 2023.
After determining the appropriateness of the “standing” of the plaintiffs based upon the plaintiffs being “adversely affected” by the Final Rule, the federal court preliminarily enjoined enforcement of the Final Rule. In noting its disagreement with the Final Rule, the court stated:
“… the Final Rule amends the DBA [the Davis-Bacon Act] by imposing a stealth selfimplementing DBA requirement in the contract by an operation-of-law provision that contradicts the express statutory language of the Act [the court bristling at the idea that contracts might exclude with impunity the otherwise mandated DBA clauses]. Further, the Final Rule amends the Act to extend the DBA to apply to workers who are not mechanics and laborers, and to extend the scope of the work covered by DBA to include work is not performed ‘directly on the site of the work.’
Read the full story...Reprinted courtesy of
Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Scott Saylin Expands Employment Litigation and Insurance Litigation Team at Payne & Fears
September 23, 2024 —
Payne & Fears LLPScott Saylin has joined Payne & Fears LLP as a Law Clerk in the firm’s Employment Litigation Group and Insurance Litigation Group. Before his time at Payne & Fears, Scott served as a law clerk for Cascadia Healthcare in Boise, Idaho.
“We are pleased to welcome Scott Saylin back to the firm. He was with us as a summer associate before completing his final year of law school at George Washington University,” said Amy Patton, the group’s co-chair. “Scott has fantastic potential to develop into an excellent litigator and will be an asset to our team.”
Get to Know Scott
What activities do you enjoy outside of work?
Pickle ball, long walks, beach trips, cooking, watching the Lakers games, and playing the guitar & piano.
Read the full story...Reprinted courtesy of
Payne & Fears LLP
'You're Talking About Lives': The New Nissan Stadium
August 26, 2024 —
Grace Austin - Construction ExecutiveThe new Tennessee Titans sports complex rising up on the banks of the Cumberland River in Nashville is a big project no matter how you look at it. Nissan Stadium will have 60,000 seats, cover 1.85 million square feet and cost an estimated $2.1 billion. Four contractors are involved, operating under a joint venture called the Tennessee Builders Alliance: Turner Construction Co., AECOM Hunt, Polk & Associates Construction and I.C.F. Builders & Consultants. And nearly 20,000 workers will play a role over the project’s three-year timeline.
The sheer size and scope of the job led Tyler White, TBA’s environmental health and safety director, to think that the project needed to approach safety on a similar scale. The result is a first-of-its-kind public-private partnership between the Tennessee Occupational Safety and Health Administration and TBA.
“I thought it would be a good idea,” White says. “I know they’re stretched thin, but [we’re] very appreciate of advocating and allocating their resources.”
Reprinted courtesy of
Grace Austin, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the full story...
With Trump's Tariff Talk, Time to Negotiate for Escalation Clauses in Construction Contracts
December 17, 2024 —
Richard Korman - Engineering News-RecordRemember 2019? That’s when contractors faced sudden material price surges from tariffs during then-President Donald Trump’s first term in office. How about 2021? That's when contractors saw new price surges and long delivery delays because of Covid-19.
Read the full story...Reprinted courtesy of
Richard Korman, ENRMr. Korman may be contacted at
kormanr@enr.com
Athletic Trainers Help Workers Get Back to the Jobsite and Stay Healthy After Injury
August 12, 2024 —
Bryan Lockhart - Construction ExecutiveThere are a number of factors on an active jobsite that can lead to workplace injuries. Heavy machinery, fast-moving equipment, material handling, loud noises and more can create safety hazards and make it easy to lose focus or become distracted. Additionally, the movements workers have to do in their roles—such as lifting or pushing objects or crouching low to the ground for extended periods—can add strain to the body if not done correctly.
The goal is always to minimize the risk of injury, and yet, incidents still occur. According to 2020 Bureau of Labor Statistics data, slips, trips and falls are the most common injuries, accounting for 18% of non-fatal work injuries resulting in days away from work. When workers are injured, it can lead to downtime, lost productivity on the site and workers’ compensation claims.
Employers and site leaders can take various approaches to help workers return to the jobsite safely and effectively and keep them healthy once they return. Introducing an onsite clinic and athletic trainers can help prevent injuries, improve worker health, get people back to work effectively and keep them healthy in the long run. Here are three ways athletic trainers help workers get back to the job and improve their overall health.
Reprinted courtesy of
Bryan Lockhart, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the full story...
Real Estate & Construction News Roundup (7/31/24) – International Homebuying Shrinks Commercial Real Estate Focus on Sustainability, and U.S. Banks Boost Provisions for Credit Losses
September 09, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, mortgage rates drop to lowest levels since March, hotel construction activity highest since February 2023, Biden administration calls for legislation regarding property owners, and more!
- International buyers bought 54,300 existing homes from April 2023 to March 2024 – a 36% drop from the year before. (Diana Olick, CNBC)
- The Biden administration called on Congress to pass legislation penalizing property owners for rent increases above a certain level as part of its plan to lower housing costs through a series of administrative actions. (Mary Salmonsen, Multifamily Dive)
- U.S. banks have boosted their provisions for credit losses as deteriorating commercial real estate (CRE) loans and high interest rates fuel fears of defaults. (Manya Saini, Niket Nishant and Matt Tracy, Reuters)
Read the full story...Reprinted courtesy of
Pillsbury's Construction & Real Estate Law Team
GRSM Team Wins Summary Judgment in Million-Dollar HOA Dispute
December 17, 2024 —
Robert A. Bragalone & B. Ryan Fellman - Gordon Rees Scully MansukhaniGordon Rees Scully Mansukhani Partner Bob Bragalone and Senior Counsel Ryan Fellman won a complete summary judgment on behalf of five board members who had been added to an HOA dispute by the defendant homeowners. The GRSM team resolved the matter within just 60 days of taking over the case, bringing an end to a legal battle that had lasted more than four years.
The dispute began when the HOA, as plaintiff, filed suit against the homeowners in Denton County District Court. The HOA alleged that the homeowners had violated the HOA’s Covenants, Conditions, and Restrictions by constructing a non-conforming carport and sought a declaratory judgment to resolve the issue. In response, the homeowners filed a counterclaim and third-party petition, adding the individual HOA board members to the lawsuit. They accused the board members—who were serving in a voluntary capacity—of mishandling the dispute and filed claims against them for intentional infliction of emotional distress, negligence, and gross negligence.
Reprinted courtesy of
Robert A. Bragalone, Gordon Rees Scully Mansukhani and
B. Ryan Fellman, Gordon Rees Scully Mansukhani
Mr. Bragalone may be contacted at bbragalone@grsm.com
Mr. Fellman may be contacted at rfellman@grsm.com
Read the full story...
California Supreme Court Finds Vertical Exhaustion Applies to First-Level Excess Policies
August 26, 2024 —
Tred R. Eyerly - Insurance Law HawaiiAddressing issues left open in its seminal decision in Montrose, the California Supreme Court found that the language in the first-level excess policies meant that the insured could access the policies upon exhaustion of the directly underlying policies purchased for the same policy period. Truck Ins. Exchange v. Kaiser Cement & Gypsum Corp., 2024 Cal. LEXIS 3271 (Cal. June 17, 2024).
From 1944 through the 1970's, Kaiser manufactured asbestos-containing products at numerous different facilities. By 2004, more than 24,000 claimants had filed product liability claims against Kaiser alleging that they had suffered bodily injury as a result of exposure to Kaiser's asbestos products. Kaiser tendered these claims to Truck, one of several primary insurers that had issued CGL policies to Kaiser.
In 2001, Truck initiated this coverage action to determine its indemnity and defense obligations to Kaiser. Truck later amended its complaint to add a cause of action for contribution against several of Kaiser's excess insurers. The issue presently before the court was whether Truck was entitled to contribution from various coinsurers that issued first-level excess policies to Kaiser during the period in question.
Construction Insurance Rates Up in the United StatesETF Bulls Bet Spring Will Thaw the U.S. Housing MarketCOVID-19 Win for Policyholders! Court Approves "Direct Physical Loss" ArgumentWis
How Well Do You Know the 2012 IECC Code?
Another Reason to Love Construction Mediation (Read: Why Mediation Works)
CSLB Releases New Forms and Announces New Fees!
Ensuing Loss Provision Salvages Coverage for Water Damage Claim
Construction Firms Complain of Missed Payments on Redevelopment Project
The National Building Museum’s A-Mazing Showpiece
Montana Federal Court Holds that an Interior Department’s Federal Advisory Committee Was Improperly Reestablished
These Pioneers Are Already Living the Green Recovery
David Uchida Joins Kahana Feld’s Los Angeles Office as Partner
Flint Water Suits Against Engineers Will Go to Trial, Judge Says
Homeowner Who Wins Case Against Swimming Pool Contractor Gets a Splash of Cold Water When it Comes to Attorneys’ Fees
The Construction Project is Late—Allocation of Delay
California Federal Court Finds a Breach of Contract Exclusion in a CGL Policy Bars All Coverage for a Construction Defect Action
Solar and Wind Just Passed Another Big Turning Point
Not So Unambiguous: California Court of Appeal Finds Coverage for Additional Insured
Travelers Insurance Sues Chicago for $26M in Damages to Willis Tower
Safety Accusations Fly in Dispute Between New York Developer and Contractor
Congratulations to Jonathan Kaplan on his Promotion to Partner!
Best Practices: Commercial Lockouts in Arizona
It's a Wrap! Enforcing Online Agreements in Light of the CPRA
Production of Pre-Denial Claim File Compelled
President Trump Issued Two New EOs on Energy Infrastructure and Federal Energy Policy
Negligent Misrepresentation Claim Does Not Allege Property Damage, Barring Coverage
Traub Lieberman Attorneys Recognized as 2022 Illinois Super Lawyers® and Rising Stars
Pollution Exclusion Bars Coverage for Inverse Condemnation Action
Supreme Court of Wisconsin Applies Pro Rata Allocation Based on Policy Limits to Co-Insurance Dispute
Rescission of Policy for Misrepresentation in Application Reversed
Cumulative Impact Claims and Definition by Certain Boards
Australian Developer Denies Building Problems Due to Construction Defects
Burden to Prove Exception to Exclusion Falls on Insured
Manhattan Condo Resale Prices Reach Record High
No Occurrence Found for Damage to Home Caused by Settling
Insuring Lease/Leaseback Projects
Contractors Set to Implement Air Quality Upgrades for Healthier Buildings
Largest Dam Removal Program in US History Reaches Milestone
Deck Collapse Raises Questions about Building Defects
Naughty or Nice. Contractor Receives Two Lumps of Coal in Administrative Dispute
Disruption: When Did It Start and Where Will It End?
GRSM Named Among 2025 “Best Law Firms” by Best Lawyers
Uniformity in Florida’s Construction Bond Laws Brings About Fairness for the Industry
Courthouse Reporter Series - How to Avoid Having Your COVID-19 Expert Stricken
Why Federal and State Agencies are Considering Converting from a “Gallons Consumed” to a “Road Usage” Tax – And What are the Risks to the Consumer?
Melissa Dewey Brumback Invited Into Claims & Litigation Management Alliance Membership
SB800 CONFIRMED AS EXCLUSIVE REMEDY FOR CONSTRUCTION DEFECT CLAIMS
Duty to Defend For Accident Exists, But Not Duty to Indeminfy
Court Reminds Insurer that the Mere Possibility Of Coverage at the Time of Tender Triggers a Duty to Defend in a Defect Action
Differing Site Conditions: What to Expect from the Court When You Encounter the Unexpected
Ortega Outbids Pros to Build $10 Billion Property Empire
Granting of Lodestar Multiplier in Coverage Case Affirmed
Review the Terms and Conditions of Purchase Orders- They Could be Important!
