Anaheim California Building Consultant Directory

Not a Waiver for All: Maryland Declines to Apply Subrogation Waiver to Subcontractors

September 23, 2024 — Gus Sara - The Subrogation Strategist
In Lithko Contr., LLC v. XL Ins. Am. Inc., No. 31, Sept. Term, 2023, 2024 Md. LEXIS 256, the Supreme Court of Maryland considered whether a tenant who contracted for the construction of a large warehouse facility waived its insurer’s rights to subrogation against subcontractors when it agreed to waive subrogation against the general contractor. The court ultimately decided that the unambiguous language of the subrogation waiver in the development agreement between the parties did not extend to subcontractors. The court also held that the tenant’s requirement that subcontracts include a subrogation waiver did not, in this case, impose a project-wide waiver on all parties. The court, however, found that the requirement that the subcontracts include a similar, but not identical, waiver provision rendered the subcontract’s waiver clauses ambiguous and remanded the case to the lower court to determine if the parties to the development agreement – i.e., Duke Baltimore LLC (“Duke”) and Amazon.com.dedc, LLC (“Amazon”) – intended that the waiver clause in the subcontracts covered claims against subcontractors. This case involved roof and structural damage to a warehouse in Baltimore, Maryland that Duke owned. In March 2014, Amazon entered into a development agreement with Duke for the construction of the warehouse. Amazon also agreed to subsequently lease the warehouse from Duke. Although Amazon essentially owned and/or developed the project, the development agreement identified Duke as “Landlord” and Amazon as “Tenant.” Read the full story...
Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

With Wildfires at a Peak, “Firetech” Is Joining Smart City Lineups

October 21, 2024 — James P. Bobotek - Gravel2Gavel Construction & Real Estate Law Blog
The threat of extreme wildfires has doubled in the past 20 years, with almost 20,000 fires blazing across the United States in 2024 alone. These high-intensity fires can be deadly, expensive, and create lingering health and environmental consequences. While we are used to seeing firefighters on the frontlines, researchers hope that next-generation smart technology, augmented by artificial intelligence (AI), will also play a key role in battling these conflagrations. Many municipalities, particularly those near wildfire-prone forests, are beginning to incorporate fire-focused advances (or “firetech”) into their smart city ecosystems. “Smart cities” are urban centers enhanced by utilities, emergency services, traffic signals and more that are linked through information and communications technology. Though the concept can spark cybersecurity-related concerns, many locales are gradually implementing many different kinds of smart tech. Following the 2023 wildfire that devastated Maui, for example, Hawaii installed a network of cloud-based fire and wind sensors that use AI to detect wildfires in real time. Smart tools like these can aid in predicting and discovering fires, streamlining emergency alert protocols, calculating vital analytics and improving firefighter safety. The National Fire Protection Association (NFPA) is actively studying these innovations, particularly in terms of environmental (smart buildings or robotics), operational (communications) and personnel (PPE sensors or biometrics). Below are a few of the key technologies to watch in this emerging field:

Smart Sensors. A total of 80 sensors (64 wildfire sensors and 16 wind sensors) were placed throughout Hawaii starting in March of 2024. Attached to existing utility poles, they detect heat in the air, and then engage AI and smart learning to distinguish smoke particles and gases produced by fires from those commonly found in Hawaii’s atmosphere—such as volcanic ash and ocean salt. Positioned in “strings,” the sensors “talk” to each other and send text messages to officials when they find a problem.

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Reprinted courtesy of James P. Bobotek, Pillsbury
Mr. Bobotek may be contacted at james.bobotek@pillsburylaw.com

The Importance of a Notice of Completion to Contractors, Subcontractors and Suppliers

August 12, 2024 — William L. Porter - Porter Law Group
The recording of a valid “Notice of Completion” with the County Recorder is an event of significance to owners, contractors, subcontractors and suppliers alike. The recording of a Notice of Completion is one of several methods used to trigger the time period for the recording of mechanics liens and service of stop payment notices. Although the recording of a Notice of Completion is not absolutely required on any given project, all those working in the construction industry should understand its significance. When a valid Notice of Completion has not been recorded in relation to a construction project, a contractor, subcontractor, or supplier might from ninety to one hundred fifty days after completion of the project to record a mechanics lien or serve a stop payment notice to secure payment for their services on the project, depending on the facts. However, if a valid Notice of Completion is recorded, then the deadline under most circumstances accelerates and subcontractors and suppliers must record a mechanics lien or serve a stop payment notice within only thirty days thereafter. Under the same circumstances, a prime contractor has only sixty days after the recording of a valid Notice of Completion to record a mechanics’ lien. Failure to meet these deadlines often results in loss of the right to a mechanics lien or stop payment notice. There are limited exceptions to these general deadlines, depending on the facts. If you believe you may have missed an important deadline to seek collection of a construction debt, you should consult with a construction attorney immediately to secure your avenues of collection, including the mechanics lien and stop payment notice remedies, if still available. Read the full story...
Reprinted courtesy of William L. Porter, Porter Law Group
Mr. Porter may be contacted at bporter@porterlaw.com

There Are Consequences to Executed Documents Such as the Accord and Satisfaction Defense

October 01, 2024 — David Adelstein - Florida Construction Legal Updates
A federal government contractor in Jackson Construction Co., Inc. v. U.S., 62 Fed.Cl. 84 (Fed.Cl. 2024) sought delay damages against the government. It lost. The reason for the loss is a crucial reminder that documents parties sign ALWAYS matter. ALWAYS!! In Jackson Construction Co., the contractor’s delay claim was premised on relocating a waterline. The contractor, however, received additional money for relocating the waterline, but no additional time, and this was memorialized in a modification to the contract (i.e., a change order). In executing the modification for the additional work, the contractor did NOT reserve rights for time or money. Indeed, the modification reflected that the monetary adjustment constitutes full compensation for the additional work including delay, namely:

The contract period of performance remains the same. It is further understood and agreed that this adjustment constitutes compensation in full on behalf of the contractor and his subcontractors and suppliers for all costs and markup directly or indirectly, including extended overhead, attributable to the change order, for all delays related thereto, and for performance of the change within the time frame stated.

Jackson Construction Co., supra, at 90.

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

‘The Ground Just Gave Out’: How a Storm’s Fury Ravaged Asheville

October 07, 2024 — Michael Smith, Devon Pendleton, Claire Ballentine & Michael Sasso - Bloomberg
Eric Becker was at his vacation home in western North Carolina, in a community bordering the Pisgah National Forest and Blue Ridge Parkway, when the rain began to pour. Becker, co-founder of the private wealth management firm Cresset, lives in Florida for most of the year. He had lived through a hurricane — but nothing like what he saw during Helene. “Mud was liquefying around tree bases. You could see the root systems,” said Becker, who first began visiting the Asheville area 20 years ago and was smitten by its natural scenery, excellent food and lively arts and music scene. “The ground just gave out.” Becker is part of a wave of affluent homebuyers who have flocked to the southern Appalachian region. Transplants from wealth managers and retirees to artists and young outdoors enthusiasts have helped create a real estate goldrush in cities including Asheville, where home prices have climbed 69% in the past five years. Reprinted courtesy of Michael Smith, Bloomberg, Devon Pendleton, Bloomberg, Claire Ballentine, Bloomberg and Michael Sasso, Bloomberg Read the full story...

Newport Beach Partners Jeremy Johnson, Courtney Serrato, and Associate Joseph Real Prevailed on a Demurrer in a Highly Publicized Shooting Case!

November 11, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara’s Partners Jeremy Johnson, Courtney Serrato, and Associate Joseph Real prevailed on a Demurrer in a highly publicized shooting case. Plaintiffs filed a lawsuit alleging negligence, negligent hiring, supervision and retention, and public nuisance against BWB&O’s clients, a highly recognized hospitality and lifestyle company with nightlife and restaurant venues, in addition to other celebrity defendants. Plaintiffs were the victims of a shooting that occurred by an unknown individual(s) outside and near the restaurant/venue owned by BWB&O’s clients. Plaintiffs alleged it was BWB&O’s clients that were responsible for the third parties’ criminal acts because BWB&O’s clients attracted more people than the venue’s capacity, causing people to occupy the street, sidewalk, and property nearby. Plaintiffs further alleged that BWB&O’s client should have anticipated or known that criminal conduct, including gun violence, would take place. Read the full story...
Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Changes to the Federal Rules – 2024

November 18, 2024 — William L. Doerler - The Subrogation Strategist
Unless Congress moves quickly, several amendments to the Federal Rules of Civil Procedure and Evidence will take effect December 1, 2024. Below is a brief description of the amendments. Rules of Evidence Rule 107 is a new rule. This rule addresses illustrative aids, stating that, if such aid helps the trier of fact to understand the evidence or an argument, a party may use the aid if its utility is not substantially outweighed by the danger of, among other things, unfair prejudice. As noted under the discussion of Rule 1006, below, an illustrative aid - offered only to help the trier of fact understand the evidence - is generally not admissible into evidence. Rule 613 currently states that extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and the adverse party is given an opportunity to examine the witness about it, or if justice so requires. As amended, the court has the discretion to forego this requirement. Read the full story...
Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

A Game of Texas Hold’em: How Texas Stopped Wage Increases for Salaried Exempt Employees Nationwide

December 03, 2024 — Matthew DeVries - Best Practices Construction Law
Construction contractors often have to deal with classification of employees, particularly those who work in the home office. Today’s guest post by Alexandra Shulman and Leah Lively addresses a recent court decision affecting the wage protection of employees under the the Fair Labor Standards Act (FLSA). On November 15, 2024, a federal court in Texas vacated a U.S. Department of Labor (DOL) rule (the “2024 Rule”) that increased the minimum salary threshold for employees classified as exempt from overtime and minimum wage protections under the FLSA. The Texas court’s decision nullifies the 2024 Rule nationwide, effective immediately. Read the full story...
Reprinted courtesy of Matthew DeVries, Buchalter
Mr. DeVries may be contacted at mdevries@buchalter.com

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