Three judges sitting behind bench

Attorney Tracy Forbath discusses Gonzalez v. Mathis.

California Supreme Court Declines to Create Exception to Privette Doctrine for “Known Hazards”

Monday, September 13, 2021 — Tracy D. Forbath - Lewis Brisbois

In Gonzalez v. Mathis (Aug. 19, 2021, S247677) __ Cal.5th___, the California Supreme Court reversed an appellate decision holding that a landowner may be liable to an independent contractor, or the contractor’s workers, for injuries resulting from “known hazards,” as running contrary to the Privette doctrine.

In Gonzalez, the contractor, who specialized in washing skylights, slipped and fell while accessing the landowner’s particularly hard to reach skylight from a narrow retaining wall that was allegedly covered in loose gravel and slippery. (Slip opn., p. 3.) While the trial court initially granted the landowner summary judgment pursuant to the Privette doctrine, the appellate court reversed and held that the landowner had a responsibility to take reasonable safety precautions where there was a known safety hazard on the landowner’s premises. (Id. at p. 6.) Whether the landowner could have taken various safety precautions also raised disputed issues of material fact precluding summary judgment. (Ibid.)

However, the California Supreme Court concluded that no broad, third exception to the Privette doctrine lies; “unless a landowner retains control over any part of the contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the injury [citation], it will not be liable to an independent contractor or its workers for an injury resulting from a known hazard on the premises.” (Slip opn., p. 2.)

Reprinted courtesy of Tracy D. Forbath, Lewis Brisbois

Ms. Forbath may be contacted at Tracy.Forbath@lewisbrisbois.com

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Hot springs Japan

After destruction of their homes due to lava flow, plaintiffs sued various insurers and agents as a putative class action.

Hawaii Federal District Court Grants Preliminary Approval of Settlement on Volcano Damage

Monday, September 13, 2021 — Tred R. Eyerly - Insurance Law Hawaii

The federal district court granted preliminary approval of the class action settlement reached on behalf of insureds who suffered property damage due to the 2018 Kilauea eruption on the Big Island. Aquilina v. Certain Underwriters at Lloyd's London, 2021 U.S. Dist. LEXIS 152614 (D. Haw. Aug. 13, 2021).

After destruction of their homes due to lava flow, plaintiffs sued various insurers and agents as a putative class action. Plaintiffs claimed they purchased surplus lines policies brokered and underwritten by various defendants. The policies each contained an exclusion for the peril of lava flow, which plaintiffs claimed rendered them worthless or unsuitable given that their properties were located in a high-risk lava zone.

Plaintiffs alleged that defendants breached obligations under the Hawaii Surplus Lines Act, which required that surplus lines insurers conduct a diligent search for other available coverage before placing a homeowner with surplus lines coverage. Plaintiffs alleged defendants should have advised them of the availability of lava-damage coverage through the Hawaii Property Insurance Association (HPIA), a statutorily created association of admitted insurers established in part in response to Kilauea's eruption patterns, which made the private insurance market less likely to Insure certain high-risk areas.

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Businesswoman signing document

Contractor contingency funds are a project essential.

The Best Laid Plans: Contingency in a Construction Contract

Monday, September 13, 2021 — Josh Levy, Katesha Long & Samantha Schacht - Construction Executive

This article is the first of a three-part series on contingencies in construction contracts. This series will explain:

  • what a construction contingency is;
  • the two primary schools of thought regarding how a construction contingency fund should be used and managed; and
  • construction contract drafting considerations for contingency clauses.

Armed with this information, owners and contractors will be better equipped to tackle the inevitable project surprises.

Life is full of surprises, some good and some not too good. Surprises during construction are seldom welcome events. However, experienced owners and contractors know to expect the unexpected and plan accordingly by including contingency funds in their budgets. For them, the question is not whether or not to include a contingency, but how much to set aside and how to structure and manage the fund.

Reprinted courtesy of Josh Levy, Katesha Long & Samantha Schacht, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Ms. Schacht may be contacted at samantha.schacht@huschblackwell.com
Ms. Long may be contacted at katesha.long@huschblackwell.com

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Analysis: State Construction Unemployment Rates Down in 45 States From a Year Ago

September 13, 2021 — ABC - Construction Executive

The not-seasonally adjusted national construction unemployment rate was down 2.6% in June 2021 from a year ago. and 45 states had lower unemployment rates over the same period, according to state-by-state analysis of U.S. Bureau of Labor Statistics data released by Associated Builders and Contractors. Although not back to pre-pandemic levels, both overall employment and construction employment have demonstrated significant improvement during the past year.

National NSA construction employment was up 233,000 from June 2020. Nevertheless, seasonally adjusted construction employment remained 238,000 (or 3.1%) below its February 2020 peak, before the impact of the COVID-19 pandemic began to affect employment numbers. This was better than national SA nonfarm payroll employment, which was 4.4% below its February 2020 peak as of June.

Reprinted courtesy of ABC, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


Travelers Marks National Suicide Prevention Week with New Resources for Contractors

September 13, 2021 — Travelers

HARTFORD, Conn.--(BUSINESS WIRE)-- In recognition of National Suicide Prevention Week, The Travelers Companies, Inc. (NYSE: TRV) today released a new white paper and Risk Control eGUIDE designed to help contractors assess and implement suicide-in-construction awareness programs.

Travelers is also supporting the Construction Industry Alliance for Suicide Prevention (CIASP) and its goal of creating a zero-suicide industry. Construction companies can access CIASP’s trainings, posters, toolbox talks and self-assessments free of charge to help them evaluate their mental health and suicide prevention preparedness.

To review these resources, please visit the Suicide in the Construction Industry and Suicide and the Construction Worker webpages on Travelers.com.


Home Prices in Three U.S. Cities Have Jumped 25% or More in a Year

September 13, 2021 — Claire Ballentine & Alice Kantor - Bloomberg

Homes in some of the largest U.S. cities just keep getting more expensive.

In Phoenix alone, an index that measures home prices climbed a whopping 29.3% in June from the previous year, as more people move to the city. The measure in San Diego rose 27.1%, while Seattle increased 25%. The index in nine cities jumped 20% or more.


ABA’s Forum on Construction Law 2021 (Regional)

September 13, 2021 — Beverley BevenFlorez – CDJ Staff

The American Bar Association (ABA) is presenting “Construction Law Essentials” virtually and in-person at six different cities. These two-day seminars will cover “the essential technical and legal underpinnings of construction, including the key elements of vertical construction systems and technology, the roles of the key participants in a project, the structure of project delivery systems, the bidding and construction process, insurance and bonding, government construction contracts, and dispute resolution.”

September 30th-October 1st, 2021
Virtual Event or In Person at the Following Cities:
Los Angeles

Featured Experts For More Visit Us At:

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Cost Estimating Expert, Fire, Flood,  Catastrophic Loss Specialist area area area

Consulting Civil Engineer and General Contracting Expert Witness Arrange No Charge Initial Consultation Concerning Your Matter. area area

Orange pause circle

The tower settled about 17 in. since its completion in 2008.

Engineer Pauses Fix of 'Sinking' Millennium Tower in San Francisco

Monday, September 13, 2021 — Richard Korman - Engineering News-Record

Engineers paused work for at least two weeks on the $100-million foundation upgrade for San Francisco's 645-ft-tall Millennium Tower high-rise residential condominium after measurements showed increased settlement during the installation of pile casings for the new piles.

Reprinted courtesy of Richard Korman, Engineering News-Record

Mr. Korman may be contacted at kormanr@enr.com

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Three construction workers looking at plans

Inslee’s vaccine proclamation becomes effective October 18, 2021 and requires construction contractors, subcontractors, and their workers to be fully vaccinated to perform work onsite on certain covered projects.

Governor Inslee’s Recent Vaccination Mandate Applies to Many Construction Contractors and their Workers

Monday, September 13, 2021 — Brett M. Hill - Ahlers Cressman & Sleight PLLC

This month Governor Jay Inslee enacted COVID vaccination requirements that apply to certain construction contractors and their workers in Washington state. Inslee’s vaccine proclamation becomes effective October 18, 2021 and requires construction contractors, subcontractors, and their workers to be fully vaccinated to perform work onsite on certain covered projects.

The following are types of covered projects where the vaccine mandate applies:

  1. State agencies: All contractors working at projects for Washington state agencies (including WSDOT, DES, DNR, etc.) if the work is required to be performed in person and onsite, regardless of the frequency or whether other workers are present. The vaccine mandate applies to indoor and outdoor settings and there is no exemption even if social distancing requirements can be met.
  2. Education/Higher Education/Child Care: All contractors performing work onsite for K-12, higher education (community colleges, technical colleges, and 4-year universities), child care and other facilities where students or persons receiving services are present. New and unoccupied projects are exempt but it does apply to public and private projects.
  3. Medical facilities: All contractors performing work at a “healthcare setting” where patients receiving care are present. “Healthcare setting” is defined as any public or private setting that is primarily used for the delivery of in-person health care services to people. “Healthcare setting” includes portions of a multi-use facility, but only the areas that are primarily used for the delivery of health care, such as a pharmacy within a grocery store. Additional information is on the state’s Q&A page.
Reprinted courtesy of Brett M. Hill, Ahlers Cressman & Sleight PLLC

Mr. Hill may be contacted at brett.hill@acslawyers.com

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The Best with fireworks

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence.

Wilke Fleury Attorney Featured in 2022 Best Lawyers in America and Best Lawyers: Ones To Watch!

Monday, September 13, 2021 — Wilke Fleury LLP

Wilke Fleury congratulates attorneys David Frenznick, Adriana Cervantes, Matthew Powell and Dan Egan on their inclusion in the 2022 Edition of Best Lawyers in America!

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 108,000 industry-leading lawyers are eligible to vote (from around the world), and they have received over 13 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2021 Edition of The Best Lawyers in America©, 9.4 million votes were analyzed.

Reprinted courtesy of Wilke Fleury LLP
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Businessman with hands up in triumph

Inclusion in Best Lawyers® is based entirely on peer-review.

Best Lawyers® Recognizes 38 White and Williams Lawyers

Monday, September 13, 2021 — White and Williams LLP

White and Williams is proud to announce that 30 lawyers were recognized in the 2022 edition of The Best Lawyers in America® 2022 and eight were recognized as “Ones to Watch.”

Inclusion in Best Lawyers® is based entirely on peer-review. The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

Reprinted courtesy of White and Williams LLP

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Lady law blindfolded holding scales of justice

Defective design upheld as a defense even if contractor is partially at fault.

Supreme Court of Washington State Upholds SFAA Position on Spearin Doctrine

Monday, September 13, 2021 — Peter Roth – The Surety & Fidelity Association of America

September 9, 2021 (WASHINGTON, DC) – The Surety & Fidelity Association of America (SFAA) commends the decision of The Supreme Court of The State of Washington to reverse the lower court ruling in the case of Lake Hills Investments, LLC vs. Rushforth Construction Co. As argued by SFAA, the Supreme Court found the contractor should not be responsible for damage caused by the defective design provided by the owner even where the contractor was responsible for certain defective work. In addition, the contractor is not completely barred from asserting this defense if the defects were caused by a combination of deficient performance by the contractor and deficient design, and proportional liability should be determined.

The SFAA, along with the National Electrical Contractors Association Puget Sound Chapter (NECA), Mechanical Contractors Association of Western Washington (MCAWW) and SMACNA-Western Washington (SMACNA), issued an Amici Curiae in support of Petitioner AP Rushforth Construction Co., Inc. d/b/a AP Rushforth, and Adolfson & Peterson, Inc.’s (collectively “AP”) Petition for Discretionary Review. In the brief they argued the Court should grant the Petition because the decision by the lower court is contrary to precedent of limiting a contractor’s liability when the owner’s defective plans and specifications caused the defective work, and upsets settled expectations of allocation of risk and liability between contractors, owners and architects (among others) on construction projects. This allocation of risk and the principle of limiting the contractor’s liability for defective work based on defective plans and specifications is long settled doctrine in Washington State and throughout the country, a doctrine based on the US Supreme Court’s landmark decision in U.S. vs. Spearin more than 100 years ago.

The Surety & Fidelity Association of America (SFAA) is a trade association of more than 425 insurance companies that write 98 percent of surety and fidelity bonds in the U.S. SFAA is licensed as a rating or advisory organization in all states and it has been designated by state insurance departments as a statistical agent for the reporting of fidelity and surety experience. www.surety.org

Reprinted courtesy of Peter Roth, SFAA

Mr. Roth may be contacted at proth@surety.org

Businessman climbing stairs with city behind image

For the 2022 edition of The Best Lawyers in America®, more than 10.8 million votes were analyzed.

Traub Lieberman Attorneys Recognized in the 2022 Edition of The Best Lawyers in America®

Monday, September 13, 2021 — Traub Lieberman

Traub Lieberman is pleased to announce that three Partners have been selected by their peers for inclusion in the 2022 edition of The Best Lawyers in America®. In addition, five attorneys have been included in the 2022 Best Lawyers®: Ones to Watch list. These recognitions include attorneys from the firm’s Chicago, IL; Palm Beach Gardens, FL; and St. Petersburg, FL offices.

2022 Best Lawyers®

    Chicago, IL
  • Brian C. Bassett – Insurance Law
    Palm Beach Gardens, FL
  • Rina Clemens – Personal Injury Litigation – Defendants
    St. Petersburg, FL
  • Scot E. Samis – Appellate Practice
Reprinted courtesy of Traub Lieberman
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OIG On Hard Rock Collapse

Sandals stuck in beach

EPA’s case was based on 2008 EPA and Corps inspection reports and Justice Kennedy’s “significant nexus” test as the controlling opinion in the 2006 Supreme Court case, Rapanos v. United States.

Still Going, After All This Time: the Sacketts, EPA and the Clean Water Act

Monday, September 13, 2021 — Anthony B. Cavender - Gravel2Gavel

On August 16, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling that the Idaho property of Michael and Chantell Sackett was a regulated wetlands under the then-controlling 1977 EPA rules defining “waters of the United States,” and that the Sacketts dredging and filling of their property was subject to regulation by the U.S. Army Corps of Engineers or EPA. EPA’s case, as it has been for many years, was based on 2008 EPA and Corps inspection reports and Justice Kennedy’s “significant nexus” test as the controlling opinion in the 2006 Supreme Court case, Rapanos v. United States. The Sacketts’ argument was that the text of the Clean Water Act, as interpreted by Justice Scalia and three other Justices, was controlling, but for several years, the Ninth Circuit has relied on Justice Kennedy’s opinion in these CWA controversies. The court’s opinion expressed considerable sympathy for the Sacketts as they negotiated the thicket of EPA’s regulatory processes, but it could not disregard circuit precedent. A few years ago, the Supreme Court ruled, in a unanimous decision, that EPA’s then extant administrative compliance orders were arbitrary and capricious. (See Sackett v. US, 566 US 120 (2015).) After that decision, the case was remanded to the federal district court, where it lingered for several more years.

Reprinted courtesy of Anthony B. Cavender, Pillsbury

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Team of business people raising their arms in triumph

Best Lawyers is the most respected peer-review publication in the history of the legal profession.

Congratulations to Partners Nicole Whyte, Keith Bremer, Peter Brown, Karen Baytosh, and Associate Matthew Cox for Their Inclusion in 2022 Best Lawyers!

Monday, September 13, 2021 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

Bremer Whyte Brown & O’Meara, LLP is proud to announce Partners Nicole Whyte, Keith Bremer, Peter Brown, and Karen Baytosh have been selected by their peers for inclusion in the 2022 Edition of The Best Lawyers in America, and Associate Matthew Cox has been included in the Second Edition of Best Lawyers: Ones to Watch. Each person is being recognized for their diligent work in the areas of Family Law, Construction, Commercial, and Personal Injury Litigation.

Best Lawyers is the most respected peer-review publication in the history of the legal profession. Acknowledgment in both The Best Lawyers in America and Best Lawyers: Ones to Watch edition is widely regarded by both clients and legal professionals as a significant honor, bestowed on a lawyer by his or her peers.

Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
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Protesting text on ripped paper

Contractors should be aware of the Safeguard opinion because it confirms the COFC’s authority to hear a protest based upon an agency’s breach of an implied-in-fact contract in the procurement context.

Contractors Pay Heed: The Federal Circuit Clarifies Two Important Issues For Bid Protestors

Monday, September 13, 2021 — Andrew Balland - ConsensusDocs

The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently decided two cases that are relevant to many disappointed offerors considering a bid protest. One decision rendered in March 2021 confirmed the authority of the United States Court of Federal Claims (COFC) to hear a protest based on an agency’s breach of an implied-in-fact contract. A second decision issued in February 2021 reversed a COFC decision from last year regarding the timeliness requirements to obtain a CICA stay and their interplay with Department of Defense (DoD) enhanced debriefing regulations.

Federal Circuit Confirms The Court Of Federal Claims’ Jurisdiction Over Procurement-Related Implied Contract Claims

When a contractor’s bid protest is denied by the Government Accountability Office (GAO), the unsuccessful protestor may challenge the GAO’s decision as arbitrary and capricious in an action before the COFC. While 28 U.S.C. § 1491(b)(1) authorizes the COFC to hear such procurement-related challenges, § 1491(a) also permits the court to adjudicate claims against the United States based on any express or implied contracts.

Reprinted courtesy of Andrew Balland, Watt, Tieder, Hoffar & Fitzgerald, LLP
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Law books on shelf

The Zurich case illustrates the need to carefully review the wording of contracts with respect to required limits of insurance.

Federal Court Enforces “Limits” and “Most We Will Pay” Clauses in Additional Insured Endorsement

Monday, September 13, 2021 — Craig Rokuson - Traub Lieberman Insurance Law Blog

In the recent case of Zurich Am. Ins. Co. v. XL Ins. Am., Inc., 20-CV-4614 (LJL), 2021 WL 3617218 (S.D.N.Y. Aug. 16, 2021), the United States District Court for the Southern District of New York—in deciding a motion for consideration—had occasion to review the 2013 ISO changes to the additional insured endorsement, and held that coverage under a policy providing additional insured coverage was limited to the $1,000,000 required by contract, and not the $2,500,000 limit to the policy.

In Zurich, Zurich and its named insured D.A. Collins sought the full limits of the primary policy issued by XL to the D.A. Collins’ subcontractor, HBI, which are $2,5000 per occurrence and in the aggregate, for an underlying personal injury lawsuit. XL also issued an excess policy in the amount of $5,000,000 to HBI.

The contract between D.A. Collins and HBI required HBI to obtain commercial liability coverage “in an amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. It further provides that the “required limits for the umbrella excess coverage shall be sufficient to provide a total of $5,000,000 per occurrence/aggregate.”

Reprinted courtesy of Craig Rokuson, Traub Lieberman

Mr. Rokuson may be contacted at crokuson@tlsslaw.com

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