Why’d You Have To Say That?
October 09, 2023 —
Daniel Lund III - LexologyA surety seeking collateral from indemnitors filed suit in federal court in Louisiana pursuant to a forum selection clause in the indemnity agreement between the parties.
The indemnitors were being called upon to provide collateral as a result of defaults on two Louisiana Department of Transportation projects. Seeking to move the dispute to Louisiana state court from federal court, the indemnitors filed a forum non conveniens motion.
Among the arguments of the indemnitors removing the case out of federal court was the doctrine of “direct-benefits” estoppel – a policy which “‘holds a non-signatory to a clause in a contract if it “knowingly exploits the agreement” containing the clause.’ In re Lloyd's Reg. N. Am., Inc., 780 F.3d 283, 291 (5th Cir. 2015) (quoting Bridas S.A.P.I.C. v. Gov't of Turkmenistan, 345 F.3d 347, 361-62 (5th Cir. 2003)).”
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Update: Where Did That Punch List Term Come From Anyway?
December 21, 2016 —
Duane Craig – Construction InformerI’ve often wondered just where the term “punch list” came from, and I’ve found a few sources that seem to make sense, while others not so much.
Enter the Realm of Conjecture and Opinion
One person claims it came from the telephone installer process of “punching down” terminals on a block. That seems a bit of a stretch though. A blog writer said it had to do with the term ‘punch’ since it means to “punch something up” as in fix it.
Another blog writer thought it had something to do with a long forgotten practice. Apparently subcontractors used to each have their own hole punches that would punch a hole with a shape unique to them. They would use these punches to indicate they had corrected the deficiency that was their responsibility.
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Duane Craig, Construction InformerMr. Craig may be contacted at
dtcraig@constructioninformer.com
As Some States Use the Clean Water Act to Delay Energy Projects, EPA Issues New CWA 401 Guidance
August 26, 2019 —
Anthony B. Cavender - Gravel2GavelIn just the past few weeks, three states have used their Clean Water Act 401 authority to delay, for an indefinite period, FERC-authorized pipeline expansion projects. On May 6, 2019, the Oregon Department of Environmental Quality denied, without prejudice, Jordan Cove’s application for a Section 401 water quality certification. Jordan Cove plans to build an LNG export terminal at Coos Bay, Oregon, if it can obtain the necessary federal and permits. Under Section 401(a) of the Clean Water Act, any applicant for a federal permit to conduct any activity, including the operation of facilities which may result in any discharge into the navigable waters, shall provide the permitting agency a certification from the State in which the discharge may originate that any such discharge will comply with the applicable provisions of the Clean Water Act, including effluent limitations and state water quality standards. The States have a “reasonable time”—which shall not exceed one year after the receipt of the 401 application—in which to act, or the state’s authority may be waived by this inaction. The Oregon DEQ concluded that Jordan Cove has not demonstrated that its project, as presently configured, will satisfy state water quality standards. The 401 applications submitted by Transcontinental Gas Pipe Line Co. (Transco) to the New Jersey Department of Environmental Protection and the New York State Department of Environmental Protection were similarly rejected without prejudice on May 15, 2019 (New York) and June 5, 2019 (New Jersey). This use of the states’ 401 authority has frustrated plans to build and operate LNG pipelines around the country.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Sustainability Is an Ever-Increasing Issue in Development
November 21, 2022 —
Scott L. Baker - Los Angeles Litigation BlogBusinesses must be open to change. It is essential to survive in the business world, regardless of the industry. This goes hand-in-hand with the necessity to change along with consumer needs and values as well.
With the increasing emphasis on sustainability across industries, many businesses have had to make their processes and products more environmentally friendly. However, in terms of real estate construction, there are some challenges.
SUSTAINABILITY IN NEW CONSTRUCTION IS NOW A MATTER OF LAW – NOT JUST A PREFERENCE
The push to become greener comes from many fronts. Property owners, potential buyers and even lawmakers all expect the real estate industry to go greener. For example, homeowners and businesses often want their properties to meet their personal values of sustainability.
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Scott L. Baker, Baker & AssociatesMr. Baker may be contacted at
slb@bakerslaw.com
America’s Infrastructure Gets a D+
March 16, 2017 —
Garret Murai – California Construction Law BlogThe American Society of Civil Engineers (ASCE) has issued their 2017 Infrastructure Report Card, which assigns a letter grade to the nation’s infrastructure.
Our country’s grade in 2017? A disappointing D+.
Although, if you’re a glass half full kind of person (bless your soul) at least our grade didn’t fall since the last report card was issued in 2013, when our grade was a D+ as well.
In short, we suck. Although, apparently, we don’t suck evenly across the board.
ASCE has divided its cumulative GPA into grades for specific courses, if you will. Our transit systems received a grade of D-; our airports, dams, drinking water and waste water plants, inland waterways, levees and roads received a grade of D; our power plants, hazardous waste plants, public parks and schools received a grade of D+; our bridges, ports and solid waste plants a grade of C+, and our rail systems received a grade of B.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
The Contingency Fee Multiplier (For Insurance Coverage Disputes)
September 10, 2018 —
David Adelstein - Florida Construction Legal UpdatesThe contingency fee multiplier: a potential incentive for taking a case on contingency, such as an insurance coverage dispute, where the insured sues his/her/its insurer on a contingency fee basis.
In a recent property insurance coverage dispute, Citizens Property Ins. Corp. v. Agosta, 43 Fla.L.Weekly, D1934b (Fla. 3d DCA 2018), the trial court awarded the insured’s counsel a contingency fee multiplier of two times the amount of reasonable attorney’s fees. The insurer appealed. The Third District affirmed the contingency fee multiplier.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Florida Former Public Works Director Fined for Ethics Violation
April 09, 2014 —
Beverley BevenFlorez-CDJ STAFFHiram Siaba, formerly Miami Lake, Florida’s public works director, has been fined for allegedly violating “an ethics ordinance that prevents public employees from doing business with former employers for a two-year period,” according to the Miami Herald. A few months prior to taking the job with the city, Siaba had worked part-time for Ballarena Construction. Siaba awarded Ballarena Construction “more than 10 projects that fell below the $25,000 threshold for awarding contracts without going to the Town Council for approval.”
Ballarena had also been awarded a million-dollar youth center project, which “came to a halt last year” when town officials alleged that structural defects were discovered during an inspection. Miami Lakes is currently negotiating with Ballarena’s surety company to attempt to finish the project.
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Client Alert: Service Via Tag Jurisdiction Insufficient to Subject Corporation to General Personal Jurisdiction
August 27, 2014 —
R. Bryan Martin and Kristian B. Moriarty - Haight Brown & Bonesteel LLPIn Martinez v. Aero Caribbean (No. 3:11-cv-03194-WHA, filed 8/21/2014), the United States Court of Appeals for the Ninth Circuit held service of process on a corporation's officer, within the forum state, does not establish general personal jurisdiction over the corporation unless the corporation's contacts with the forum render it essentially at home in the state.
Decedent, Lorenzo Corazon Mendoza, was traveling by airplane when the plane crashed, killing everyone aboard. Defendant Avions De Transport Régional (ATR) manufactured the airplane that crashed. Plaintiffs Lorenzo Martinez, Eliezer Martinez, Eliu Mendoza and Gloria Montes (Plaintiffs) filed suit against ATR as heirs of decedent.
ATR is a business entity organized under French law with its principal place of business in France. It is not licensed to do business in California, and it has no office or other physical presence there. It has purchased parts from California suppliers, sent representatives to California to promote its business, and advertised in trade publications available in California. It has also sold airplanes to a California corporation. Empire Airlines flies from Santa Barbara to Ontario using ATR planes on a regular basis; however, Empire Airlines purchased the ATR planes secondhand from third parties, and never directly from ATR. At the time of the crash, ATR North America (a wholly owned subsidiary of ATR) had its headquarters in Virginia, and has since relocated to Florida.
Reprinted courtesy of
R. Bryan Martin, Haight Brown & Bonesteel LLP and
Kristian B. Moriarty, Haight Brown & Bonesteel LLP
Mr. Martin may be contacted at bmartin@hbblaw.com; Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
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