Insurer's Motion for Judgment on the Pleadings for Construction Defect Claim Rejected
January 22, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe magistrate judge recommended that the insurer's motion for judgment on the pleadings be denied in a case involving coverage for the insured subcontractor's alleged faulty workmanship. Evanston Ins. Co. v. Sonny Glasbrenner, Inc., 2023 U.S. Dist. LEXIS 190019 (M.D. Fla. Oct. 20, 2023).
Cone & Graham (C&G), the general contractor, subcontracted with Sonny Glasbrenner, Inc. (SGI) to work on the project. The project involved the rehabilitation of a bridge due to deterioration of the existing concrete bridge deck by adding additional cross bracing to further stiffen the steel girders and using special lightweight concrete. C&G contracted SGH to demolish the existing concrete bridge deck. SGI completed the work.
Thereafter, C&G made a demand to SGI for alleged damaged caused by SGI's work. C&G alleged that SGI was negligent in performing the demolition work, causing substantial damage to the existing bridge girders. C&G sued SGI.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Newmeyer & Dillion Named as One of the 2018 Best Places to Work in Orange County for Seventh Consecutive Year
August 15, 2018 —
Newmeyer & DillionNEWPORT BEACH, Calif. – JULY 23, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is proud to be selected as one of the 2018 Best Places to Work in Orange County in the category of medium sized companies. This marks the seventh consecutive year Newmeyer & Dillion LLP has made the list, affirming that its profound commitment to professionalism and client service is shared among its workforce. The ranking was released in a special section of the Orange County Business Journal's July 23 issue.
Jeff Dennis, Newmeyer & Dillion's Managing Partner, commends the effort of each employee in achieving this result. "Together, we strive to maintain an innovative, collaborative and creative culture that cannot be matched anywhere else, and we are sincerely grateful for each of our employees' ongoing commitment to the firm's values."
The awards program was created in 2009 and is a project of the Orange County Business Journal and Best Companies Group. This county-wide survey and awards program was designed to identify, recognize and honor the best places of employment in Orange County, California, benefiting the county's economy, its workforce and businesses.
For more information on the survey process for the Best Places to Work in Orange County program, visit www.BestPlacestoWorkOC.com or contact Jackie Miller at 877-455-2159.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
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Department Of Labor Recovers $724K In Back Wages, Damages For 255 Workers After Phoenix Contractor Denied Overtime Pay, Falsified Records
February 01, 2023 —
U.S. Department of LaborPHOENIX – The U.S. Department of Labor has recovered $724,082 in back wages and damages for 255 employees of an electrical contractor in Phoenix who denied them overtime wages and falsified records.
An investigation by the department’s
Wage and Hour Division found IES Residential – a subsidiary of one of the nation’s largest electrical, HVAC and plumbing, solar and cable installation contractors – capped employees’ overtime at eight hours despite some employees working up to 60 hours in a workweek.
The division also learned the employer told workers – some who arrived as early as 4:45 a.m. and worked as late as 7 p.m. to record 40 hours or less on their timesheets unless their overtime was pre-approved. When IES Residential did approve, the employer limited overtime to eight hours per week even when employees worked as many as 23 hours of overtime in a workweek.
“The U.S. Department of Labor will hold employers accountable for wage theft, particularly in cases like this one, where IES Residential deliberately attempted to evade the law by instructing employees to falsify timesheets to avoid paying overtime wages,” said Wage and Hour Division District Director Eric Murray in Phoenix. “Employers who fail to pay workers their full wages may face costly consequences, including penalties for intentional acts to cover-up their violations.”
In fiscal year 2022, the division
recovered nearly $32.9 million in back wages for 17,127 construction industry workers. The division completed more than 2,200 investigations in FY22 in the construction industry and by wages recovered, the industry ranks second among the division’s low wage, high violation industries.
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Delaware Supreme Court Allows Shareholders Access to Corporation’s Attorney-Client Privileged Documents
August 13, 2014 —
Marc S. Casarino and Lori S. Smith – White and Williams LLPDelaware corporations may be required to turn over internal documents of directors and officers, including those of in-house counsel, where the factors enumerated in Garner v. Walfinbarger, 430 F.2d 1093 (5th Cir. 1970) weigh in favor of disclosure. In a July 23, 2014 decision of first-impression, the Delaware Supreme Court ruled in Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW, that the Garner doctrine applies to plenary shareholder/corporation disputes, as well as to books and records inspection actions under Section 220 of the Delaware General Corporation Law. The Garner doctrine provides that a shareholder may invade the corporation’s attorney-client privilege in order to prove fiduciary breaches by those in control of the corporation upon a showing of good cause. The non-exhaustive list of factors by which a finding of good cause should be tested are:
“(i) the number of shareholders and the percentage of stock they represent; (ii) the bona fides of the shareholders; (iii) the nature of the shareholders’ claim and whether it is obviously colorable; (iv) the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources; (v) whether, if the shareholders’ claim is of wrongful action by the corporation, it is of action criminal, or illegal but not criminal, or of doubtful legality; (vi) whether the communication is of advice concerning the litigation itself; (vii) the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing; and (viii) the risk of revelation of trade secrets or other information in whose confidentiality the corporation has an interest for independent reasons.”
Reprinted courtesy of
Marc S. Casarino, White and Williams LLP and
Lori S. Smith, White and Williams LLP
Mr. Casarino may be contacted at casarinom@whiteandwilliams.com; Ms. Smith may be contacted at smithl@whiteandwilliams.com
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General Contractors Have Expansive Common Law and Statutory Duties To Provide a Safe Workplace
February 18, 2020 —
Paul R. Cressman Jr. - Ahlers Cressman & Sleight PLLCOn November 21, 2019, the Washington Supreme Court handed down its decision in Vargas v. Inland Washington, LLC.[1]
At the time of the incident in May 2013, Mr. Vargas, the plaintiff, was helping pour the concrete walls for what would become a parking garage for an apartment building. He was employed by Hilltop Concrete Construction. Inland Washington was the general contractor, and subcontracted with Hilltop to pour concrete. Hilltop, in turn, entered into agreements with Ralph’s Concrete Pumping and Miles Sand & Gravel to provide a pump truck, certified pump operator, and supply concrete.
A rubber hose carrying concrete whipped Mr. Vargas in the head. It knocked him unconscious and caused a traumatic brain injury.
Vargas, through his guardian ad litem, along with his wife and children, sued Inland Washington, Ralph’s, and Miles.
The trial court initially dismissed on summary judgment Vargas’ claims that Inland Washington was vicariously liable for the acts of Hilltop, Ralph’s, and Miles. Later, the trial court also granted Inland Washington’s motion for summary judgment that it was not directly liable as a matter of law.
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Paul R. Cressman Jr., Ahlers Cressman & Sleight PLLCMr. Cressman may be contacted at
paul.cressman@acslawyers.com
Federal Subcontractor Who Failed to Follow FAR Regulations Finds That “Fair” and “Just” are Not Synonymous
April 22, 2019 —
Garret Murai - California Construction Law BlogInscribed over the doors of the U.S. Supreme Court are the words “Equal Justice Under Law.” It’s a reminder that judicial decisions should be just. That doesn’t necessarily mean fair.
In Aspic Engineering and Construction Company v. ECC Centcom Constructors, LLC, U.S. Court of Appeals for the 9th Circuit, Case No. 17-16510 (January 28, 2019), the 9th Circuit overturned an arbitration decision in favor of a local Afghani subcontractor seeking termination costs after it was terminated for convenience by a U.S.-based general contractor. This, despite the arbitrator’s finding that the subcontract was “clearly drafted to give every advantage to” the general contractor, that the local Afghani subcontractor’s “experience with government contracting [was] not nearly as extensive as that of” the general contractor, and “that the normal business practices and customs of subcontractors in Afghanistan were more ‘primitive’ than those of U.S. subcontractors experienced with U.S. Government work.”
Aspic Engineering and Construction
Local Afghani subcontractor Aspic Engineering and Construction Company was awarded two subcontracts by ECC Centcom Constructors the general contractor on two projects in Afghanistan overseen by the United States Army Corps of Engineers. The first subcontract involved construction of various buildings in the Badghis province of Afghanistan . The second subcontract involved the construction various buildings Sheberghan province of Afghanistan . Both subcontracts included clauses from the Federal Acquisition Regulation (FAR), which were incorporated by reference, and included flow-down provisions obligating Aspic to ECC in the same manner that ECC was obligated to the U.S. government.
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Garret Murai, Wendel RosenMr. Murai may be contacted at
gmurai@wendel.com
Reminder: In Court (as in life) the Worst Thing You Can Do Is Not Show Up
September 28, 2017 —
Christopher G. Hill - Construction Law MusingsAs long time (and possibly recent) readers of Construction Law Musings know, I am a Virginia Supreme Court Certified Mediator. In that capacity, I spend quite a bit of time sitting in general district court courtrooms in places like Goochland and Caroline Counties “court sitting” awaiting a referral from the judge of a case with parties ready and willing to take advantage of the mediation process.
As I sit there wearing my mediator “hat,” I see case after case be called for the first return date. Without fail, several cases are called where the defendant fails to appear after being served with process. There are even a case or two where the plaintiff (the party that picked the return date in the first place) fails to appear. In the first instance, where the defendant doesn’t appear, the judge almost inevitably enters a judgment for the amount sued for by the plaintiff. In the latter instance, the case is dismissed without prejudice to the plaintiff with a shake of the head by the judge at the wasted time and filing fee. This post focuses on the first case.
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Christopher G. Hill, Law Offices of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Notice of Completion Determines Mechanics Lien Deadline
August 13, 2019 —
William L. Porter - Porter Law GroupThe California Mechanics Lien is one of the most valuable collection devices available to contractors, subcontractors and suppliers who are unpaid for work performed and materials supplied in relation to a California Private Works project. The mechanics lien allows the claimant to sell the property where the work was performed in order to obtain payment. The process starts with the recording of a mechanics lien in the office of the County Recorder where the property in question is located. As noted below, certain deadlines must be met.
Know Your Mechanics Lien Filing Deadlines Generally
Working within deadlines is absolutely crucial to preserving mechanics lien rights under California law. The deadlines differ, depending on whether you are a ”direct” contractor, also known as “original” or “prime” contractor (one who contracts directly with the property owner) or a subcontractor or material supplier. The primary differences are that, the direct contractor is only required to serve the “Preliminary Notice” on the Construction Lender (Civil Code section 8200-8216), whereas the subcontractor and material supplier must serve not only the Construction Lender, but also the Owner and Direct Contractor (see Civil Code section 8200(e)). Another difference is that a direct contractor has a longer period of time in which to record a mechanics lien after a valid “notice of completion” or a “notice of cessation” has been recorded (Civil Code sections 8180-8190), (60 days for original contractors as compared to 30 days for subcontractors and suppliers – See Civil Code sections 8412 and 8414). A further general description of the rules is as follows:
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
