New ANSI Requirements for Fireplace Screens
March 19, 2015 —
Beverley BevenFlorez-CDJ STAFFThe American National Standards Institute (ANSI) now requires “vented gas fireplaces to include a safety barrier screen as standard equipment,” according to Remodeling.
"While gas fireplaces, stoves and inserts are a great asset to any home, the glass can become very hot during operation and stay hot long afterwards, creating a potential burn hazard," Jack Goldman, HPBA president and CEO told Remodeling.
Read the court decisionRead the full story...Reprinted courtesy of
Builders Beware: A New Class Of Defendants In Asbestos Lawsuits
January 06, 2016 —
David J. Byassee, Bremer Whyte Brown & O’Meara, LLP & Timothy A. Gravitt, Ulich, Ganion, Balmuth, Fisher & Feld, LLPResidential, commercial and industrial builders face new and potentially significant liability for construction activities that took place in the 1960s, 1970s and 1980s: personal injury lawsuits filed by construction workers from exposure to building products containing asbestos. After emptying the pockets of manufacturers and suppliers of raw asbestos and asbestos-containing products over the last 20 years, plaintiff lawyers are beginning to set their sights on a new class of defendants in asbestos litigation: residential, commercial and industrial builders who unknowingly allowed asbestos-containing products to be incorporated into their projects.
The men and women who have been involved in the building industry for 40 years or more may remember the subject of asbestos surfacing in the 1970s with the enactment of the Occupational Safety and Health Act (OSHA). At that point builders were just beginning to learn that asbestos was a component of some building materials, and the potential risk of cancer presented by asbestos was being debated in scientific and medical journals. Although the use of building materials containing asbestos was mostly phased out by the 1980s, the health risks associated with exposure to asbestos continue – and in fact increase – for the duration of an exposed person’s life.
Today it is generally accepted that exposure to asbestos increases the risk of developing asbestosis and certain kinds of cancer, including mesothelioma. Cancers associated with exposure to asbestos are typically diagnosed at least 15 years (and sometimes up to 50 years) after a person’s exposure to asbestos, meaning that exposures in the 1960s, 1970s and 1980s might not manifest in disease until now. The class of persons who may be at risk for asbestos-related disease is long and varied: insulators, HVAC installers, pipe fitters, plumbers, drywall installers, painters, plasterers and roofers, to name a few. Long-term exposure history, coupled with the theory that “each and every” exposure during a lifetime is a substantial factor increasing the risk of developing cancer, presents potential liability to builders acting as general contractors and/or property owners, as well as the usual defendants in asbestos lawsuits, which include manufacturers, suppliers, and users of asbestos-containing materials.
In recent years, plaintiff lawyers have set their sights on builders as the financial wherewithal of traditional asbestos defendants has dried up. Plaintiff lawyers have created a new theory of liability which they use to rope builders in as defendants in asbestos lawsuits: that the builder knew – or should have known – that a deadly ingredient (asbestos) was contained in the building materials used in construction, and the builder failed to warn its subcontractors or anyone else on the project that exposure to asbestos could harm them.
Builders have unique legal defenses to claims brought by employees of subcontractors who have developed asbestos-related disease. For example, the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689, held that an injured employee of a subcontractor cannot maintain a claim against the hirer (builder) for the employee’s injury absent affirmative contribution on the part of the builder to the injury. Thus the first line of defense in an asbestos exposure case is to argue that the developer had no direct role in the plaintiff’s exposure to asbestos and therefore the Privette doctrine precludes the plaintiff from suing the builder. But resourceful plaintiff lawyers are coming up with arguments to get around this so-called Privette defense in asbestos lawsuits by claiming that builders’ activities such as cleanup of asbestos-containing materials, or assertion of control over the work of the subcontractor, directly contributed to the plaintiff’s injuries and therefore provide exceptions to Privette and allow the claim to proceed.
A practical question is raised in asbestos cases: How is a plaintiff able to prove, decades after working on a project, what building materials contained asbestos, or that a builder knew or should have known in the 1960s, 1970s or 1980s that asbestos-containing materials were used on their project, or that asbestos presented a health risk? To answer the first part of the question (what building materials contained asbestos), plaintiff’s experts will say that during the relevant timeframe asbestos was a common ingredient in many building products, e.g., drywall joint compounds, stucco/plaster/gun cement, acoustic ceiling products, cement pipe, insulation, roofing mastic, caulk and plumber’s putty; this can be further proven by reference to product manufacturers’ disclosures made pursuant to the Asbestos Information Act. Also, through the decades of asbestos litigation against product manufacturers and suppliers, resourceful plaintiff lawyers have developed vast banks of data and documentation identifying the manufacturers of asbestos-containing building products, the end-users of those products, and the projects where those products were supplied. With this bank of knowledge, all that is necessary for them to make the claim against a builder is to have the plaintiff identify a construction project where he or she remembers working during the relevant timeframe. Once that identification is made, it is a simple matter for the lawyers to dig and find out who developed the building/project, who then becomes a defendant in an asbestos lawsuit.
The answer to the second part of the question (whether the developer knew or should have known that the products brought to their projects contained asbestos) requires a detailed investigation into the dates at which the products were supplied to the project, the manufacturer of the product, and what information was available in the market place about the material content of the particular product.
The answer to the third part of the question (knowledge that asbestos presented a health risk) is trickier. One of the first standards set by OSHA in 1972 related to permissible levels of exposure to asbestos. It is a common tactic for plaintiff lawyers to argue that the existence of OSHA standards created a presumption of knowledge in the building industry about the dangers of asbestos. But what about pre-OSHA knowledge? Here plaintiff lawyers will argue that well before OSHA, going back as far as 1936, exposure to asbestos was regulated in California under General Industry Safety Orders relating to Dusts, Fumes, Mists, Vapors and Gases. They argue that the General Industry Safety Orders put builders “on notice” of the dangers of asbestos by virtue of being regulated by the State of California, and, by extension, builders had “knowledge” of the health risks associated with asbestos.
There are defenses that skilled defense counsel can utilize to defeat asbestos claims, assuming the Privette defense is not available. The first is to thoroughly investigate and evaluate all of the plaintiff’s potential exposures to asbestos throughout his entire lifetime, and identify those sources that likely were the major contributors to his disease. Next, counsel has to properly investigate the project at which the plaintiff is alleged to have been exposed to asbestos, identify all of the possible sources of exposure, i.e., the products that were used or might have been used at the project, and finally how the plaintiff was allegedly exposed at the project. As most builders do not maintain records of what products were used in their projects dating back 15 years or more, let alone the identities of the trades that worked on the projects, knowledgeable defense counsel can be a valuable partner in unearthing the brands of products typically in use in the locale where the construction took place, and identifying the manufacturers of those products. Defense counsel must analyze the frequency, duration, proximity and intensity of the exposure, as well as the type of asbestos the plaintiff was allegedly exposed to (not all asbestos is created equal – some types are more toxic than others). This will involve careful evaluation of the levels of exposure created by the alleged activity of the builder, to determine, through experts and a thorough understanding of the scientific and medical studies on the subject, whether the levels of asbestos exposure created by the activity could be considered a “substantial factor” in contributing to the risk of the plaintiff’s development of his asbestos-related disease.
Asbestos lawsuits present a significant risk to the unsuspecting and unprepared builder. Money damages available to a plaintiff are substantial. Medical expenses for treatment of asbestos-related disease typically run into the hundreds of thousands of dollars, lost income (including retirement benefits) can also be significant, and jury awards for pain, suffering and emotional distress can be staggering - often millions of dollars. In some cases punitive damages are even awarded.
The bottom line is that a builder runs a big risk if it treats an asbestos claim like any other claim. The level of analysis and investigation to properly defend against the claim requires prompt action by knowledgeable counsel, and frequently there is no insurance coverage.
David J. Byassee is an attorney with the firm
Bremer Whyte Brown & O’Meara, LLP, and is a litigator who has devoted nearly a decade to representation of real estate developers and builders. He can be reached at: dbyassee@bremerwhyte.com.
Timothy A. Gravitt is an attorney with the firm
Ulich, Ganion, Balmuth, Fisher & Feld, LLP who is devoted to defending real estate developers and builders in a variety of litigation. He can be reached at: tgravitt@ulichlaw.com.
Read the court decisionRead the full story...Reprinted courtesy of
10 Haight Lawyers Recognized in Best Lawyers in America© 2022 and The Best Lawyers: Ones to Watch 2022
September 20, 2021 —
Haight Brown & Bonesteel LLPThree Haight Brown & Bonesteel LLP attorneys were selected for Best Lawyers in America© 2022.
Seven Haight Brown & Bonesteel LLP attorneys were selected for Best Lawyers®: Ones to Watch 2022.
Read the court decisionRead the full story...Reprinted courtesy of
Haight Brown & Bonesteel LLP
Architects and Engineers Added to Harmon Towers Lawsuit
February 12, 2013 —
CDJ STAFFSince the beginning of the Harmon Towers construction defect lawsuit, it has been CityCenter making claims against Perini, the property owner against the builder. CityCenter now has a new legal team, and with it apparently a new strategy. The Las Vegas Review Journal reports that papers were filed in court on February 8, adding the architect and the engineer as defendants in the case.
According to the filings, the engineering firm Halcrow Yolles should have noticed during inspections that parts of the building’s steel skeleton were improperly installed and should have been repaired. Instead these structures were encased in concrete. CityCenter also contends that there were deficiencies in Halcrow’s blueprints. AAI Architects has been named because its contract made it responsible for Halcrow’s work.
Perini has contended that some problems at the building were due to bad plans and therefore not their responsibility. They have claimed that they can fix the building for $20 million, of which $4 million would be due to their actions.
Read the court decisionRead the full story...Reprinted courtesy of
Ensuring Arbitration in Construction Defect Claims
February 04, 2013 —
CDJ STAFFJared E. Berg and John W. Mill of Sherman & Howard note that developers and general contractors would prefer that construction defect claims against them go to arbitration, instead of ending up in front of a jury. They say “there is a way to do this.” For the developer and general contractor, arbitration is “typically less costly and time consuming than litigation.”
On the other side, home owner associations “tend to prefer litigation because the up-front costs of arbitration are greater and they would rather have their cases tried to a jury than a panel of arbitrators in the belief juries offer greater potential for high damage awards. In order to avoid arbitration, “HOAs have taken advantage of their statutory rights to amend declarations by instructing their members to approve amendments removing arbitration clauses.
However, in a recent Colorado case, the developer had taken a precaution of including in the arbitration clauses that “they could not be removed from the declarations by amendment with the developer’s and general contractor’s consent.” The homeowners association had voted to remove these clauses, but the judge found that they could not do so.
Berg and Mill give the advice to “include in the declaration’s arbitration clause a provision making your consent required to amend or nullify the arbitration provision,” adding that “courts will enforce this kind of consent provision.”
Read the court decisionRead the full story...Reprinted courtesy of
California’s High Speed Rail Project. Are We Done With the Drama?
October 22, 2014 —
Garret Murai – California Construction Law BlogProponents of California’s high-speed rail project cleared a major hurdle this past week when the California Supreme Court declined to review a California Court of Appeals ruling which held that the state’s funding plan did not violate Proposition 1A, the voter-approved initiative passed in 2008, which provided initial funding for the project.
For those like me who have been following the fits and starts of California’s high-speed rail project, it may be hard to remember how it all got started, and how we got to where we are.
California's High-Speed Rail Project
California’s high-speed rail project involves the construction of a high-speed passenger rail system running from Northern California to Southern California. The $68 billion system, expected to begin operation in 2029, will initially run from San Francisco to the Los Angeles basin in under 3 hours with train speeds capable of over 200 miles per hour. The system will eventually extend from Sacramento to San Diego covering a distance of approximately 800 miles with up to 24 stations.
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Kronick Moskovitz Tiedemann & GirardMr. Murai may be contacted at
gmurai@kmtg.com
Congratulations to Nicole Whyte, Keith Bremer, John Toohey, and Tyler Offenhauser for Being Recognized as 2022 Super Lawyers!
February 07, 2022 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBWB&O is proud to announce that Partners Nicole Whyte, Keith Bremer, John Toohey, and Tyler Offenhauser have been named as 2022 Southern California’s Super Lawyers! We are also honored to share that Nicole Whyte is included in two of the top lists, Top 50 Women Lawyers in Southern California and Top 50 Lawyers in Orange County!
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations, and peer evaluations. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. During the final selection process, only lawyers in the top 5% of the total lawyers in the state are selected to the Super Lawyers list.
Read the court decisionRead the full story...Reprinted courtesy of
Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
California Commission Recommends Switching To Fault-Based Wildfire Liability Standard for Public Utilities
June 25, 2019 —
Lawrence J. Bracken II, Sergio F. Oehninger, Paul T. Moura & Alexander D. Russo - Hunton Insurance Recovery BlogA state-appointed panel advised last week that California should change the standard for determining whether utilities are liable for wildfires. Under the current system, California’s Public Utilities Code § 2106 provides a private right of action by any person or entity that has suffered loss, damages, or injury caused by prohibited or unlawful acts of a public utility. Relying on this statute, property owners have asserted wildfire-related claims directly against allegedly culpable electric utility companies. Public utilities in California also face inverse condemnation claims arising out of wildfires. Under inverse condemnation, where private property is taken for public use and later damaged by the state or its agency, the state or agency is strictly liable to the property owner.
In an effort to reduce the financial impact on public utilities resulting from wildfires—as exemplified by Pacific Gas and Electric Co.’s recent filing for Chapter 11 protection in January—the California Commission on Catastrophic Wildfire Cost and Recovery recommended changing the current laws to reflect a fault-based standard. According to the panel, this change would reduce the risk of bankruptcy and decrease the cost of capital. The commission also recommended establishing a wildfire victims’ fund and setting up an electric utility wildfire board to handle the prevention and mitigation of utility-related wildfires.
Reprinted courtesy of Hunton Andrews Kurth attorneys
Lawrence J. Bracken II,
Sergio F. Oehninger,
Paul T. Moura and
Alexander D. Russo
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Paul may be contacted at pmoura@HuntonAK.com
Mr. Alexander may be contacted at arusso@HuntonAK.com
Read the court decisionRead the full story...Reprinted courtesy of
