Vancouver’s George Massey Tunnel Replacement May Now be a Tunnel Instead of a Bridge

Tunnel

Preliminary work on the 10-lane bridge option started in 2017.

January 6, 2020
Tim Newcomb - Engineering News-Record

The constant political back-and-forth in British Columbia, Canada, over how to deal with an aging George Massey Tunnel, opened in 1959, has ping-ponged from uncertainty to a $3.5 billion, 10-lane bridge, back to uncertainty, to no bridge and now to an eight-lane submerged tunnel.

Tim Newcomb, Engineering News-Record

ENR may be contacted at ENR.com@bnpmedia.com

Read the full story...


37th Annual Advanced Course: Eminent Domain and Land Valuation Litigation 2020

January 6, 2020
Beverley BevenFlorez – CDJ Staff

This annual seminar will cover relocation, regulatory takings, inverse condemnation, and valuation issues. A few of the many topics announced include Property Rights as Civil Rights: Seeking Justice Though the Fourth and Fifth Amendments; Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do; When A River Runs Thought It: Water Rights and Takings.

January 23rd-25th, 2020
Hilton Nashville Downtown
21 Fourth Avenue South
Nashville, Tennessee 37201


Clean Water Act Cases: Of Irrigation and Navigability

Water rushing

Two significant CWA cases: State of Georgia, et al. v. Wheeler and Pacific Coast Federation of Fishermen’s Associations, et al. v. Glaser.

January 6, 2020
Anthony B. Cavender - Gravel2Gavel

The federal courts have recently decided two significant Clean Water Act (CWA) cases: State of Georgia, et al. v. Wheeler, where the US District Court for the Southern District of Georgia held that the 2015 rulemaking proceeding of EPA and the U.S. Army Corps of Engineers redefining the term “Waters of the United States” in the CWA violated the Act as well as the Administrative Procedure Act; and the Ninth Circuit’s decision in Pacific Coast Federation of Fishermen’s Associations, et al. v. Glaser, where the appeals court ruled that the lower court erroneously interpreted a CWA NPDES permitting exception involving agricultural return flows.

An Absence of Navigability: State of Georgia, et al. v. Wheeler
Decided on August 21, 2019, the district court, one of the few courts to grapple with the rule’s compliance with the CWA and the Administrative Procedure Act (APA), held that the agencies’ redefinition of the terms “Interstate Waters,” “Tributaries” and “Adjacent Waters” violated the CWA by reading “navigability” out of the new definitions, or by failing to adhere to the Supreme Court’s rulings in the 2005 case of Rapanos v. United States, in particular Justice Kennedy’s concurrence regarding the application of the “significant nexus” in case-by-case adjudications as to whether a particular body of water was covered by the Act. Moreover, some provisions of the rule conflicted with the APA because they were not a logical outgrowth of the rules proposed by the agencies in 2014, and on which they solicited comments, and other determinations were not supported by a reasonable explanation. In addition, without a clear statement from Congress that it supported the rule’s effect of increasing the nature and extent of enhanced federal jurisdiction over waters subject to the CWA, the court was loathe to approve the rule. Accordingly, the rule was remanded to the agencies for additional review consistent with this decision.

This decision is of particular importance as it may well be the first case to subject this new EPA rule—the linchpin of much of EPA’s regulation under the CWA—to extended review. (Other courts have only been asked to enjoin the rule, which involves a different type of review.)

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


Construction Law- Where Pragmatism and Law Collide

Newton cradle showing energy and gravity

Construction professionals tend to be a pragmatic group of people that would rather solve a problem than go to court.

January 6, 2020
Christopher G. Hill - Construction Law Musings

If there is one “theme” to Construction Law Musings, those that read regularly hopefully see that I take my role as counselor to construction companies seriously. Aside from the fact that litigation and arbitration are both expensive and not a great way for any business, particularly a construction business, to make money, I have found construction professionals to be a pragmatic group of people that would rather solve a problem than go to court.

I have also discussed the need for a good foundation for the project in the form of a well drafted and properly negotiated contract. This contract sets out the rights of the parties and essentially makes the “law” for your construction project. Virginia courts will not renegotiate the terms for you and while this can lead to problems where parties either don’t understand the terms or don’t work to level the terms, it does mean that the parties know what the expectations are where the expectations are properly set, preferably with the help of your friendly neighborhood construction attorney and counselor at law. Practical considerations such as your feel for the other party and which terms are worth forgoing the work for should drive your considerations almost as much as the legal implications.

Mr. Hill may be contacted at chrisghill@constructionlawva.com


DRI Construction Law Seminar

January 1, 2020
Beverley BevenFlorez – CDJ Staff

Attendees of this three-day seminar will “hear directly from industry insiders on how they are adjusting to and handling the cyber-world, learn the ins and outs of project management software, and hear how climate change is impacting building design and claims.”

April 1st-3rd, 2020
Hyatt Regency Chicago
151 E Wacker Drive
Chicago, IL 60601


Paris Mixed-Use Development Will Be 'Environmentally Responsible'

January 1, 2020
Bruce Buckley - Engineering News-Record

Bouygues Bâtiment Ile-de-France and Bouygues Energies & Services, two subsidiaries of Bouygues Construction, are building the $289-million Issy Coeur de Ville under development in Issy-les-Moulineaux, near Paris. Envisioned as an eco-neighborhood, the 1,076,391-sq-ft project aims to provide residents an “environmentally responsible lifestyle.” The development is a connected block, located in the heart of Issy-les-Moulineaux. It will focus on pedestrian traffic and will be heavily landscaped. Designed by architect Valode & Pistre, the mixed-used development will consist of five residential buildings, including a retirement home, three office buildings and a range of civic amenities that include a school complex, a day-care center and a community hall. The development will also feature 182,986 sq ft of retail, restaurants and a seven-screen multiplex cinema.

ENR may be contacted at ENR.com@bnpmedia.com


IRS Notice 2019-43

January 1, 2020
David R. Cook - AHC Construction and Procurement Blog

Notice 2019-43 updates and clarifies the guidance provided in prior IRS notices regarding the beginning of construction for sections 45 and 48. Specifically, the notice provides that the Continuity Safe Harbor may be tolled and extended in certain limited circumstances involving significant national security concerns. One such concern is the route for the proposed transmission line which runs adjacent to a DOD facility. The DOD states that since the Plan raises significant concerns related to national security a proposed alternative route for the transmission line would be in the best interests of national security objectives.

Mr. Cook may be contacted at cook@ahclaw.com


Lorelie Masters Recognized by the American Law Institute for Her Significant Contributions to the New Restatement of Liability Insurance

January 1, 2020
Michelle M. Spatz - Hunton Insurance Recovery Blog

The Fall 2019 Edition of The ALI Reporter recognizes Hunton partner Lorelie S. Masters for her significant contributions to the new Restatement of the Law, Liability Insurance (RLLI). The RLLI was approved by the American Law Institute (ALI) at its 2018 Annual Meeting and published in late September 2019. In 2010, Lorie was one of 40 attorneys invited to serve as an Adviser to the Restatement, and she was heavily involved throughout the life of the eight-year project.

Ms. Spatz may be contacted at mspatz@HuntonAK.com


A Survey of New Texas Environmental Laws

Man holding shovel next to freshly planted tree

More than 1,300 laws were enacted in this session, including a surprising number of environmentally related bills.

December 30, 2019
Anthony B. Cavender - Gravel2Gavel

This is a brief survey of many of the environmental and regulatory laws passed by the Texas Legislature and signed by the Governor in the 86th Regular Session of the Legislature, which ended in May 2019. Altogether, more than 1,300 laws were enacted in this session, including a surprising number of environmentally related bills. Most of these new laws take effect on September 1, 2019. This survey places them in the following broad categories: Air, Water; Waste; Disaster (principally because of the effects of Hurricane Harvey); and Miscellaneous. (Special thanks to Jay Bowlby, a summer intern in our Houston office, who made a significant contribution to this survey.)

1. Air

HB 1627—amends Section 386.001(2) of the Health and Safety Code to remove several counties from the list of counties with deteriorating air quality subject to the Texas Emissions Reductions Plan.
HB 1346—relates to the diesel emissions reductions incentives and gives the TCEQ flexibility in administering this program.
HB 2726—concerns amended air quality permit applications. The law provides that construction of a project may proceed, at the applicant’s own risk, after the TCEQ Executive Director has issued a draft permit including the permit amendment. However, this provision does not apply to a permit amendment affecting a concrete batch plant located within 888 yards of a residence.
HB 3725—creates the Texas Emissions Reduction Plan Trust Fund, which will be held by the Comptroller and administered by the TCEQ, which also administers the TERP program.
SB 698—authorizes the TCEQ to provide expedited processing of certain Texas Clean Air Act permit applications by increasing the agency’s permitting staff.

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


Introducing Nomos LLP!

Businessman holding arms up in triumph

Nomos LLP will continue to offer transactional and litigation services in the area of design and construction law.

December 30, 2019
Garret Murai - California Construction Law Blog

We’ve been quiet lately we know.

We’ve been nesting. Not the alien popping through your stomach kind of nesting, although, there have been a few white knuckled “what the heck did we get ourselves into!” moments. Rather, we’ve been quietly building something we think is pretty great. Not just for us, but for our clients.

Our own law firm. So here’s the 411:

What’s with the name Nomos LLP?

We’ve gotten a few questions about that. We wanted to create a client-centric law firm not a lawyer-focused one. Hence, no last names. Plus, we don’t have cool last names like Low, Ball & Lynch or Payne & Fears. The name “nomos” is Greek for “law.” And, of course, it’s from the Greeks that much of modern Western legal system is derived. Simple. Opa!

Mr. Murai may be contacted at gmurai@nomosllp.com


Newmeyer Dillion Secures Victory For Crown Castle In Years-Long Litigation With City Council Of Piedmont Over Small Cell Wireless Telecommunications Sites

Businessman facing a storm

This victory ends a long-running legal dispute over Crown Castle's small cell wireless network.

December 30, 2019
Newmeyer Dillion

Newmeyer Dillion, a prominent business and real estate law firm, is pleased to announce that, on November 18, 2019, the City Council of the City of Piedmont unanimously voted to approve the installation of 17 small cell wireless telecommunications sites by Newmeyer Dillion client Crown Castle NG West LLC, the leading provider of shared communications infrastructure in the United States. This victory ends a long-running legal dispute over Crown Castle's small cell wireless network, which was vehemently opposed by Piedmont residents and previously rejected by the City Council, prompting Newmeyer Dillion to bring a lawsuit against the city in 2017.

The dispute began in 2016 when Crown Castle filed an application with the City Council of the City of Piedmont to build nine small cell wireless sites designed to provide critical wireless telecommunications coverage in Piedmont. In October 2017, the Council denied the network, rejecting some of the proposed sites or approving others with onerous conditions.

Newmeyer Dillion's Government, Land Use and Environmental practice group filed a lawsuit on behalf of Crown Castle in the United States District Court for the Northern District of California in November 2017, challenging the Council's decision. Drawing from the language established in the Telecommunications Act of 1996, the lawsuit alleged that Piedmont's ordinances established an unreasonably high bar of approval, unlawfully prohibiting telecommunications services in the city.

The city quickly requested a court-supervised settlement, which was approved by the City Council in December 2018 and allowed Crown Castle to reapply to build 17 small cell wireless telecommunications facilities. The unanimous City Council approval came after extensive mediation work between the two parties.

"We are excited that our years-long efforts have culminated in this major win for Crown Castle, allowing them to build out critical telecommunications infrastructure in the City of Piedmont," said Michael Shonafelt, partner at Newmeyer Dillion. "With the growing national need for robust telecommunications networks that can handle voice communication and modern data demands, approvals such as this are significant, not just for the community the network serves, but for the viability of the national telecommunications network as a whole. Our team is proud to be using our multidisciplinary, business-oriented approach to successfully advise clients navigating these issues."

About Newmeyer Dillion
For 35 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 corporate, privacy & data security, employment, real estate, construction, insurance law and trial work, 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.newmeyerdillion.com.


The Utility of Arbitration Agreements in the Construction Industry

Two businessmen shaking hands

One tool that employers should strongly consider in their arsenal are arbitration and class action waiver agreements.

December 30, 2019
Brian L. Gardner & Jason R. Finkelstein - Construction Executive

In today’s ever-evolving world of employment law, it is far from an easy task for construction industry employers to operate their business while successfully navigating all of the potential legal potholes that continue to abound and multiply seemingly with every passing day. This is particularly true in the face of the onslaught of claims lodged by current and former employees in recent years for alleged unpaid wages. While there may not be a “sure bet” way of avoiding such claims, one tool that employers should strongly consider in their arsenal are arbitration and class action waiver agreements.

To that end, last year, the United States Supreme Court rendered its ground-breaking decision in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018). In Epic Systems, the Supreme Court held that arbitration agreements containing class and collective action waivers of wage and hour disputes are enforceable. At the time of the decision, a split of authority existed among courts across the country as to whether such agreements were viable. On the one hand, several courts contended that class waivers unfairly violated employees’ rights to collectively bargain under the National Labor Relations Act. On the other hand, many other courts were finding that such agreements were fully enforceable and supported by the policies promoted under the Federal Arbitration Act. The Epic Systems Court sided with this latter viewpoint, concluding that the FAA’s clear policy promoting arbitration as a dispute resolution mechanism and private parties’ rights to freely negotiate contracts outweighed any potential arguments against such agreements under the NLRA.

With wage and hour lawsuits being filed against construction industry employers practically daily, the Epic Systems decision is critically important. Construction employers can now freely enter into arbitration and class waiver agreements with their laborers and thereby potentially limit the cost, expense and exposure of fighting such actions in a public forum on a collective or class-wide basis. To be clear, such agreements will not eliminate employees from bringing such wage and hour claims entirely, nor should the use of those agreements signal to employers that they need not make every good-faith effort to comply with their obligations under the Federal Labor Standards Act and/or any applicable state wage and hour laws. But the reality is that arbitration and class waiver agreements can work to avoid tens or hundreds or even thousands of employees from banding together in some of the massive wage and hour lawsuits being filed across the country. Instead, employers can require that those legal battles be conducted by a single plaintiff in a more controlled environment before an arbitrator (or panel of arbitrators).

Reprinted courtesy of Brian L. Gardner & Jason R. Finkelstein, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Mr. Gardner may be contacted at bgardner@coleschotz.com
Mr. Finkelstein may be contacted at jfinkelstein@coleschotz.com


Certificates of Insurance May Confer Coverage

Woman with umbrella in rain

This case is a victory for contractors and owners in Washington.

December 30, 2019
Brett M. Hill - Ahlers Cressman & Sleight PLLC

Certificates of insurance are a common tool used in the construction industry to provide proof of insurance coverage. The legal effect of certificates of insurance has been a source of debate in Washington. Insurance companies have argued that certificates of insurance are “informational only” and do not alter the terms of the applicable insurance policy. Insurance companies have taken the position that if a certificate of insurance provides for coverage that is different than what the policy provides, the insurance company is only bound to provide what the policy provides.

The Washington State Supreme Court weighed in on this issue in an opinion issued on October 10, 2019, and held that an insurance company is bound by the terms of its certificate of insurance – even if it conflicts with the policy. In T-Mobile USA, Inc. v. Selective Insurance Company of America, Selective’s agent issued a certificate of insurance to “T-Mobile USA, Inc., its subsidiaries and affiliates” and stated that those entities were “included as additional insured” under the policy. The certificate of insurance was issued by Selective’s agent when T-Mobile’s contractor purchased an insurance policy from Selective for a cell tower project. The contractor’s agreement for the project was with T-Mobile Northeast – not T-Mobile USA. The contract between T-Mobile Northeast and the contractor stated that T-Mobile Northeast would be an additional insured. The Selective insurance policy stated that any third party would automatically be an additional insured if the contractor was required to name the third party as an additional insured. The contract did not provide that T-Mobile USA would be an additional insured.

A property owner damaged by the cell tower project sued T-Mobile USA. T-Mobile USA tendered the claim to Selective. Selective denied the claim because the contract between the contractor and T-Mobile Northeast did not require the contractor to name T-Mobile USA as an additional insured.

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


Hunton’s Geoffrey Fehling Confirmed to DC Bar Foundation’s Young Lawyers Network Leadership Council

Three businessmembers with thumbs up

The DC Bar Foundation launched the Young Lawyers Network Leadership Council in November 2011.

December 30, 2019
Michael S. Levine - Hunton Andrews Kurth

Congratulations to Hunton Andrews Kurth LLP insurance recovery lawyer, Geoffrey Fehling, on his confirmation by the DC Bar Foundation’s Board of Directors to the organization’s Young Lawyers Network Leadership Council.

As the leading funder of civil legal aid in the District of Columbia, DCBF awards grants to the District’s legal services organizations that provide free civil legal services to low-income and underserved people in the District. Since its inception, DCBF has awarded more than $80 million in grants.

Mr. Levine may be contacted at mlevine@HuntonAK.com


Endorsements Preclude Coverage for Alleged Faulty Workmanship

Roofers doing repairs

Alleged faulty workmanship was barred by the Combination Construction Related Endorsement and Roofing Endorsement.

December 30, 2019
Tred R. Eyerly - Insurance Law Hawaii

The court found coverage for alleged faulty workmanship was barred by the Combination Construction Related Endorsement and Roofing Endorsement. Evanston Ins. Co. v. A&S Roofing, 2019 U.S. Dist. LEXIS 142828 (W.D. Okla. Aug. 22, 2019).

In 2010, A&S entered into a subcontract with the contractor to replace roofs on three buildings owned by Oklahoma Property Investors (OPI). Eagle was a subcontractor of A&S that installed the roofing. After the roofs were replaced, OPI filed suit against A&S, alleging that A&S provided 15-year warranties for the roofing work performed on the three buildings and that A&S breached each warranty by performing the work in a poor manner, resulting in failures to each of the roofs. OPI sought monetary relief including damages to its properties, of its tenants, and costs of repairs to its properties.

A&S's insurer, Evanston, denied coverage. Evanston pointed to the"legally obligated to pay" language of the CGL policy and argued coverage only extended to tort-based claims. Evanston argued the OPI lawsuit did not allege any tort claims, only warranty claims arising from contract. Second, Evanston contended the alleged "poor craftsmanship" giving rise to the claims in the OPI lawsuit that did not constitute an "occurrence" under the policy.

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


Partner Jonathan R. Harwood Obtained Summary Judgment in a Case Involving a Wedding Guest Injured in a Fall

Wedding reception outdoors

Traub Lieberman’s client owned the property where the fall occurred.

December 30, 2019
Jonathan R. Harwood - Traub Lieberman Perspectives

On September 30, 2019, Traub Lieberman partner Jonathan Harwood obtained summary judgment in an action involving a guest injured in a fall at a wedding. Traub Lieberman’s client owned the property where the fall occurred. Plaintiff fell while exiting a row of seats after the bridal party had recessed down the aisle. Plaintiff claimed that she tripped over the raised side of a paper runner that had been placed in the aisle at the property. Plaintiff brought an action against Traub Lieberman’s client (the owner of the building) and the florist that had provided the runner. The owner had provided the bridal party with access to the property but did not assist in the set up for the wedding or have any employees present during the ceremony. The florist had supplied the runner for the wedding. The florist commenced a third-party action against the bride, whose wedding party had actually placed the runner in the aisle. Plaintiff asserted that the runner had become bunched and crumpled during the ceremony, creating a dangerous condition. She further asserted that the owner was responsible for her injuries since the dangerous condition existed on its property and it should have an employee present to insure no dangerous conditions existed.

During the course of discovery, Mr. Harwood established that no one representing the owner was present during the wedding, had any involvement in the placement of the runner or had received any complaints about the runner. In support of the motion for summary judgment Mr. Harwood introduced pictures showing, in conjunction with deposition testimony, that there were no problems with the runner minutes before plaintiff’s fall. Mr. Harwood also argued that the alleged defect did not involve the property itself, absolving the owner of any obligation to plaintiff. In granting the motion for summary judgment, the court held that evidence and testimony showed that the owner neither created the condition nor had actual or constructive notice that any dangerous condition existed. The court also held that there the owner did not have any duty to have a representative present during the wedding since the property itself was not dangerous or defective. Finally, the court held that the condition of the runner was open and obvious and not inherently dangerous.

Mr. Harwood may be contacted at jharwood@tlsslaw.com


Contractors Struggle with Cash & Difficult Payment Terms, Could Benefit From Legal Advice, According to New Survey

bills finance receipt final legal past words on cloud background

The findings underscore the importance of having legal help and counsel from a construction lawyer before, during, and after jobs.

December 30, 2019
Christopher G. Hill - Construction Law Musings

Guest Post Friday is back with a post from my pal Scott Wolfe. Scott is the founder and CEO of Levelset, which is used by thousands of contractors to make payments fast and easy. Scott, previously a construction attorney himself, founded Levelset to even the $1 trillion construction playing field, and is on a mission to make payments less stressful for contractors and suppliers across the globe.

Getting paid in construction is slow, hard, and stressful, according to a survey conducted by Levelset & TSheets by Quickbooks that polled over 500 construction professionals. Half of the contractors surveyed complained that they did not get paid on time, which caused serious cash flow issues that negatively impacted their customer relationships and frequently forced them to dip into personal savings and lines of credit to keep their business afloat. View the 2019 Construction Payment Report here.

Unfortunately, since the construction industry’s slow payment problems are well-documented, this sad reality isn’t too surprising. The findings, though, do demonstrate a massive cash crunch for the 1.5 million+ contractors in the United States, and underscores the importance of having legal help and counsel from a construction lawyer before, during, and after jobs.

Mr. Hill may be contacted at chrisghill@constructionlawva.com


Insured's Remand of Bad Faith Action Granted

Illustration of judge and lawyer

Tred R. Eyerly analyzes Kavanaugh v. Nat'l Union Fire Ins. Co.

December 30, 2019
Tred R. Eyerly - Insurance Law Hawaii

The federal district court agreed remand of the insured's bad faith action to state court was appropriate. Kavanaugh v. Nat'l Union Fire Ins. Co., 2019 U.S. Dist. LEXIS 138465 (C.D. Calif. Aug. 15, 2019).

The insured sued National Union and Great American Insurance Company in state court for failing to defend him in three civil actions. In the alternative, claims were brought against Gallagher Risk Management Services, Inc. and Chelsea Laing for professional negligence in failing to broker and procure adequate insurance for him. Laing acted as an "agent and/or broker and procured at least one of the policies at issue."

Gallagher removed the action based on federal diversity jurisdiction. Although Laing was a citizen of California, Gallagher argued she was fraudulently joined and was a sham defendant, so her citizenship should be disregarded for purposes of diversity jurisdiction. The insured moved to remand because Laing was a proper defendant.

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


California Clarifies Its Inverse Condemnation Standard

Beach with focus on water grasses

A claim for inverse condemnation requires a showing of a substantial causal connection between the public improvement and the property damage.

December 30, 2019
Gus Sara - The Subrogation Strategist

In City of Oroville v. Superior Court, 446 P.3d 304 (Cal. 2019), the Supreme Court of California considered whether the City of Oroville (City) was liable to a dental practice for inverse condemnation damages associated with a sewer backup. The court held that in order to establish inverse condemnation against a public entity, a property owner must show that an inherent risk in the public improvement was a substantial cause of the damage. Since the dental practice did not have a code-required backwater valve — which would have prevented or minimized this loss — the court found that the city was not liable because the sewage system was not a substantial cause of the loss. This case establishes that a claim for inverse condemnation requires a showing of a substantial causal connection between the public improvement and the property damage. It also suggests that comparative negligence can be a defense to inverse condemnation claims.

In December 2009, a dental practice, WGS Dental Complex (WGS), located in the City, incurred significant water damage as a result of untreated sewage from the City’s sewer main backing up into WGS’ building. WGS submitted a claim to its insurance carrier, The Dentists Insurance Company (TDIC) and, in addition, sued the City for its uninsured losses, alleging inverse condemnation and nuisance. TDIC joined the litigation, alleging negligence, nuisance, trespass and inverse condemnation. Under California law, when a government entity fails to recognize that an action or circumstance essentially amounts to a taking for public use, a property owner can pursue an inverse condemnation action for compensation. The City filed a cross-complaint against WGS for failing to install a code-required backwater valve on their lateral sewer line, which would have prevented or minimized the backup.

The City filed a motion for summary judgment, which the trial court denied. WGS then sought a judicial determination on the issue of inverse condemnation. The City presented evidence that the sewage system was designed in accordance with industry standards, and that WGS failed to comply with the City’s plumbing code by failing to install a backwater valve on its private sewer lateral. The trial court found the City liable for inverse condemnation because the blockage that caused the backup originated in the City’s sewer line. The court held that the blockage was an inherent risk of sewer operation. The Court of Appeals affirmed the decision, holding that the City would have had to prove that the WGS’s lack of a backwater valve was the sole cause of the loss in order to absolve itself of liability.

Mr. Sara may be contacted at sarag@whiteandwilliams.com


Construction Lien Does Not Include Late Fees Separate From Interest

Dollar sign over dark sky

Can a late fee be tacked onto the lien too?

December 30, 2019
David Adelstein - Florida Construction Legal Updates

Construction liens can include unpaid finance charges. But, what about late fees? You know, the late fees that certain vendors like to include in their contract or purchase order unrelated to finance charges. An added cost for being delinquent with your payment. Can a late fee be tacked onto the lien too?

In a recent case, Fernandez v. Manning Building Supplies, Inc., 2019 WL 4655988 (Fla. 1st DCA 2019), a residential owner hired a contractor for a renovation job. The contractor entered into a contract with a material supplier. The terms of the supplier’s contract with the contractor provided that there would be a 1.5% delinquency charge for late payments and it seemed apparent that the delinquency charge was separate from finance charges.

Florida Statute s. 713.06(1) provides in relevant portion:

A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to the limitations thereof, has a lien on the real property improved for any money that is owed to him or her for labor, services, or materials furnished in accordance with his or her contract and with the direct contract and for any unpaid finance charges due under the lienor’s contract.

Mr. Adelstein may be contacted at dma@kirwinnorris.com



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