No Indemnity Coverage Where Insured Suffers No Loss
November 05, 2014 —
Tred R. Eyerly - Insurance Law HawaiiThe insured subcontractor sought coverage under its Builder's Risk policy for loss despite already being paid under contract the amount sought under the policy. MKB Constr. v. Am Zurich Ins. Co., 2014 U.S. Dist. LEXIS 136096 (W.D. Wash. Sept. 24, 2014).
MKB contracted with the Lower Yukon School District (LYSD) to place gravel fill for a new building pad upon which a school building would be placed in Emmonak, Alaska. The project site was built on tundra that melted in the summer, becoming marshy and pocketed by pools of standing water. LYSD provided the bidding contractors with information stating that settlements of 3 to 9 inches could be expected in areas with 30 inches of fill.
The contract was awarded to MKB, who subsequently realized it had under bid the amount of gravel fill that would be required. The estimated difference in the amount bid and the amount that would be needed was 6,583 cubic yards. LYSD refused to increase the contract price.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
A Murder in Honduras Reveals the Dark Side of Clean Energy
October 12, 2020 —
Monte Reel - BloombergBerta Cáceres campaigned to stop a renewable energy project, and the long fight turned her into one of Central America’s most prominent environmentalists. She won a prestigious international prize known as the “Green Nobel” for protecting a river, using some of the award money to purchase a modest bungalow in La Esperanza, her hometown in central Honduras.
Her activism is also what brought three gunmen to her back door.
The men broke into her kitchen around 11:30 p.m. on March 2, 2016. Cáceres heard a noise and called out from her bedroom: “Who’s out there?” Within seconds, a gunman entered her room and shot her dead.
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Monte Reel, Bloomberg
The Rise Of The Improper P2P Tactic
September 18, 2023 —
Tim Capowski - Kahana FeldAbout a year ago a colleague brought my attention to the increase in irrelevant, inflammatory, scandalous, and improper language in plaintiff pleadings in catastrophic injury, fire, and death cases. Since that time, the problem has only intensified around the country. The purpose of this improper practice is multifaceted, and has nothing to do with properly or sufficiently pleading a lawsuit. Primarily, it is designed to create ready-made and targeted sensational content for news organizations to publish and re-publish (and for news bots to disseminate) to poison the future jury pool. The lay public interprets this content as imbued with credibility not only because it emanates from sworn or verified court filings but because it carries the further patina afforded by multiple news sources’ reliance on it. This method of pleading-to-press (hereinafter “P2P”) publicity attack carries far more weight than mere press conference allegations. Ironically, P2P is demonstrably wrong because a plaintiff counsel making the identical assertions at a press conference or via a press release during litigation would be subject to libel claims (litigation privilege does not attach), gag orders, and professional misconduct referrals in most jurisdictions. Just like the Reptile attacks are simply a repackaged variant of the long precluded “Golden Rule” tactic, the P2P attacks are nothing more than a very clever but highly improper way to circumvent the press conference publicity impropriety; the defense bar and judiciary simply haven’t caught up with it yet.
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Tim Capowski, Kahana FeldMr. Capowski may be contacted at
tcapowski@kahanafeld.com
Governor Signs AB5 Into Law — Reshaping California's Independent Contractor Classification Landscape
December 02, 2019 —
Eric C. Sohlgren & Matthew C. Lewis - Payne & Fears Legal AlertToday, Governor Gavin Newsom signed California Assembly Bill 5 (“AB5”), controversial legislation which will have a substantial impact on California employers when it goes into effect on January 1, 2020.
AB5 enacts into a statute last year’s California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor.
Under the ABC test established in Dynamex and now under AB5, a worker may be properly considered an independent contractor only if the hiring entity establishes all three of the following: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
Reprinted courtesy of
Eric C. Sohlgren, Payne & Fears and
Matthew C. Lewis, Payne & Fears
Mr. Sohlgren may be contacted at ecs@paynefears.com
Mr. Lewis may be contacted at mcl@paynefears.com
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Too Costly to Be Fair: Texas Appellate Court Finds the Arbitration Clause in a Residential Construction Contract Unenforceable
November 21, 2022 —
Gus Sara - The Subrogation StrategistIn Cont’l Homes of Tex., L.P. v. Perez, No. 04-21-00396-CV, 2022 Tex. App. LEXIS 7691, the Court of Appeals of Texas (Appellate Court) considered whether the lower court erred in refusing to enforce an arbitration clause in a construction contract between the parties. The Appellate Court considered the costs of the arbitration forum required by the contract in the context of the plaintiffs’ monthly household income. The court also compared the arbitration cost to the estimated cost of litigating the dispute. The court held that the arbitration clause was substantively unconscionable on the grounds that the arbitration costs were not affordable for the plaintiffs and not an “adequate and accessible substitute to litigation.” The Appellate Court affirmed the lower court’s decision denying the defendant’s motion to compel arbitration.
The plaintiffs, Giancarlo and Krystle Perez (collectively, the Perezes), hired the defendant, Continental Homes of Texas, LP d/b/a Express Home (Express Homes), to build a new home in San Antonio. Express Homes provided its standard contract, which included a binding arbitration clause. The clause stated that every potential dispute between the parties occurring before and after the closing of the purchase of the home was subject to binding arbitration, to be administered and conducted by the American Arbitration Association (AAA). The clause also stated that the costs of the arbitration were to be split by the parties.
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Gus Sara, White and Williams LLPMr. Sara may be contacted at
sarag@whiteandwilliams.com
The A, B and C’s of Contracting and Self-Performing Work Under California’s Contractor’s License Law
July 19, 2017 —
Garret Murai - California Construction Law BlogThe California Contractors State License Board issues licenses in three general classifications:
- Class A – General Engineering Contractors;
- Class B – General Building Contractors; and
- Class C – Specialty Contractors of which there are currently 42 different Class C specialty contractors license types.
Each of these license classifications has separate contracting rules, and rules regarding when work can be self-performed, which for many can be confusing.
Minor Work Exception
One important (albeit “minor”) exception is that no contractor’s license is required no matter what type of work is being performed if the project has a value of less than $500. Known as the “minor work exception,” the exception is a project-based, not work-based, exception. Thus, for example, if a project owner is remodeling their kitchen at a cost of $6,000 and the cost of doing the flooring is only $300, the person doing the flooring would need to have a contractor’s license in the appropriate classification since the aggregate cost of the work is $500 or more.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Tall Mass Timber Buildings Now Possible Under 2021 IBC Code Changes
February 03, 2020 —
Kenneth Bland - Construction ExecutiveThe International Code Council (ICC) has approved 17 changes to the 2021 editions of the International Building Code (IBC) and International Fire Code, allowing for mass timber buildings up to 18 stories. With the addition of three new mass timber construction types (Type IV-A, IV-B, and IV-C), this is the first time in the history of the modern building code that significantly new construction types have been added to the code.
Building Materials
The primary building material that makes tall mass timber (TMT) buildings possible is cross-laminated timber (CLT). CLT is manufactured from dimension lumber (nominal 2x lumber) laid side-by-side or mass plywood panels of a specified width. Laminations of lumber are typically laid perpendicular to each other to form panels of various thicknesses that are bonded together using heat resistant adhesives that cure in large hydraulic presses. CLT commonly consists of an odd number of laminations.
These solid wood panels can be anywhere from 6 inches to 20 inches nominal thickness and 60 feet long. Typical CLT panels will be 6 inches to 14 inches nominal thickness. The panels are fabricated off site, transported onto the construction site and assembled in a manner that is efficient and remarkably fast. CLT panels can be used as floor, wall, or roof building elements supported by glued-laminated beams and columns.
Reprinted courtesy of
Kenneth Bland, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Ahead of the Storm: Preparing for Dorian
September 16, 2019 —
Adam P. Handfinger, Stephen H. Reisman & Gary M. Stein - Peckar & Abramson, P.C.While Hurricane Dorian churns in the Atlantic with its sights currently set on the east coast of Florida, storm preparations should be well underway. As you are busy organizing efforts to secure your job sites, we at Peckar & Abramson offer some quick reminders that may prove helpful:
- Review your contracts, particularly the force majeure provisions, and be sure to comply with applicable notice requirements
- Even if not expressly required at this time, consider providing written notice to project owners that their projects are being prepared for a potential hurricane or tropical storm and that the productivity and progress of the work will be affected, with the actual time and cost impact to be determined after the event.
- Consult your hurricane plan (which is often a contract exhibit) and confirm compliance with all specified safety, security and protection measures.
- Provide written notice to your subcontractors and suppliers of the actions they are required to take to secure and protect their portions of the work and the timetable for completion of their storm preparations.
Reprinted courtesy of Peckar & Abramson, PC attorneys
Adam P. Handfinger,
Stephen H. Reisman and
Gary M. Stein
Mr. Handfinger may be contacted at ahandfinger@pecklaw.com
Mr. Reisman may be contacted at sreisman@pecklaw.com
Mr. Stein may be contacted at gstein@pecklaw.com
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