California Court: Dispute Over Contract Price Did Not Entitle Public Entity To Withhold Funds Due To Contractor

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Recently, a California Court of Appeals, in East West Bank v. Rio School District, concluded that "a dispute over the contract price does not entitle a public entity to withhold funds due a contractor," avoiding the Public Contract Code § 7107 penalties. It further noted its disagreement with the 2009 decision in Martin Brothers Construction, Inc. v. Thompson Pacific Construction, Inc., 179 Cal.App.4th 1401 (2009), and confirmed that the doctrine of unclean hands does not apply to Section 7107.

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Are You Covered for a Superstorm?

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A version of our article titled Surviving the Storm originally appeared in a Bay Area Council publication in the March 2015. It discusses Superstorm Sandy's sobering preview of the types of insurance and risk management issues that business and residents face given the prospects of a catastrophic storm.

Florida Appeals Court Overturns Notice/Prejudice Ruling Against Policyholder

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Florida's Third District Court of Appeals recently held that whether "prompt" notice was given to an insurer of a claim occurring over three and a half years after a hurricane caused damages to a condominium is a question of fact that must be given to the jury. This ruling confirms that the date on which an insureds' duty to report a claim is triggered under an insurance policy's notice provision is an issue of fact not ripe for summary judgment. The case is Laquer v. Citizens Property Insurance Corporation.

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Several Important Environmental Decisions Before the Appellate Courts

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The following important U.S. District Court decisions are being appealed to the Fifth and Tenth Circuit Court of Appeals:

  • Louisiana District Court says no go to suit against 88 oil and gas companies. On May 20, 2015, another important environmental appeal was filed with the Fifth Circuit Court of Appeals. The case is Board of Commissioners of the Southeast Louisiana Flood Control Authority - East v. Tennessee Gas Pipeline Company, LLC, et al., 2015 U.S. Dist. LEXIS 18461 (February 13, 2015). In February 2015, the U.S. District Court for the Eastern District of Louisiana dismissed a major lawsuit that the Board of Commissioners filed against 88 oil and gas companies operating in South Louisiana for many years. The lawsuit, filed in state court and removed to federal court, alleges that the oil and gas operations of the defendants, in particular the construction and operation of canals located in the jurisdiction of the plaintiff levee boards, caused significant coastal erosion which in turn caused the destruction of thousands of acres of coastal lands.

  • Texas District Court shows Clean Air Act citizen suit the door. In December 2014, the U.S. District Court for the Southern District of Texas issued a ruling in Environment Texas Citizen Lobby, Inc., et al. v. ExxonMobil Corporation, et al., rejecting the Clean Air Act citizen suit claims filed against ExxonMobil with respect to its operation of the large Baytown, Texas petrochemical complex. This is one of the few cases to be tried before a court, and now, on May 15, 2015, an appeal has been filed with the Fifth Circuit by the plaintiffs. The Case No. is 15-20030, and, again, the brief is very long and comprehensive.

  • Not your dog? Last November, the U.S. District Court for Utah ruled that the federal government does not have the constitutional authority to regulate the "taking" of the Utah prairie dog--a species located only in Utah--on non-federal land. The species has, however, been listed as an endangered

  • species since 1973. The decision, People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, et al., has been appealed to the Tenth Circuit, and the Justice Department has now filed a very comprehensive brief in this matter; the Case No. is 14-4165.

Snakes on a plane? Federal Court Limits DOI's Power to Control Interstate Transportation of Anacondas and Pythons

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On May 12, 2015, the U.S. District Court for the District of Columbia partially granted a request for a preliminary injunction against the enforcement on new Interior Department rules which are intended, under the Department's reading of the Lacey Act, 18 U.S.C. Section 42, to prohibit the interstate transportation of listed "injurious species"; the species in this matter are the Reticulated Python and the Green Anaconda. These species are raised and sold in commerce, but if they escape, they can become dangerous predators. The case is United States Association of Reptile Keepers, Inc., v. Jewell. Although the case make be about snakes, it serves as a reminder that a public agency is not permitted to exceed its authority when promulgating rules.

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Supreme Court Restates Importance of Right to Judicial Review of Administrative Actions

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On April 29, 2015, the United States Supreme Court issued another unanimous ruling holding that the right to judicial review is a fundamental tenet of administrative law. The case is Mach Mining, LLC, v. Equal Employment Opportunity Commission, and involves the right to challenge the conciliation proceedings of the EEOC in employment discrimination matters. Reversing the U.S. Court of Appeals for the Seventh Circuit, the Court ruled that "the strong presumption favoring judicial review of administrative action" applies to the informal conciliation procedures used by the Commission in attempting to resolve these disputes, and accordingly rejected the holding of the appeals court that the statutory directive in Title VII of the Civil Rights Act of 1964 to attempt conciliation is not subject to judicial review. The Supreme Court concluded its opinion by stating that, "Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the courts' authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims".

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NV Annual Contractor Training Day Scheduled - August 6

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UPDATE: On July 2, the Nevada State Contractors Board issued its Industry Bulletin inviting contractors to attend its 3rd Annual Contractor Training Day. The Industry Bulletin provides an agenda for the training day:

8:30 a.m. - Economic Outlook
9:30 a.m. - Legislative Session 2015
10:30 a.m. - Navigating the Solar Boom
11:15 a.m.- Building Codes
11:45am - Unlicensed Contracting
12:30 p.m. -Tips for Working with Senior Customers
1:30 p.m. - Liens
The Nevada State Contractors Board anticipates that more than 100 of the state's leading contractors are expected to attend the Nevada State Contractors Board's third annual "Training Day" this summer in Reno and Las Vegas. The intensive day-long seminar, scheduled to occur on August 6 will bring together experts in various fields to help Nevada contractors to improve their business operations and processes. The training seminars will held concurrently in Reno at 5400 Mill Street and in Las Vegas in the Clark County Building Department located at 4701 West Russell Road. Past contractor Training Days have featured experts on marketing, business development, finance, capital budgeting, building codes, Americans with Disabilities Act compliance, contractor regulation and more.

To attend Contractor Training Day, please contact Scott Smith at (702) 486-1165 or SSmith@nscb.state.nv.us.

Additional Source: Nevada State Contractors Board, Horizons (May 2015)

Continuing Challenges to the Assertion of Federal Regulatory Authority Over Navigable Waters

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On May 15, 2015, the Court of Appeals for the District of Columbia Circuit again ruled that the National Association of Home Builders lacked representational standing to challenge a "preliminary, internal determination" made by EPA and the US Army Corps of Engineers in 2008 that two stretches of the Santa Cruz River in Southern Arizona are traditional navigable waters. The case is National Association of Homebuilders, et al., v. EPA.

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Reminder: Employers Are Required To Use New Lead Hazards Warning Signs And Labels

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The Cal/OSHA standards, located at Title 8 Cal. Code of Regs.§§ 1532.1, 5198, 5194, change how employers are required to notify their employees about potential lead hazards. Employers are required to inform their employees about potential lead hazards with work area signs and labels for lead-contaminated equipment and clothing that specifically include language about lead's danger to the central nervous system and reproductive health. Employers must comply with the new labeling rules by June 2015 and new signage rules by June 2016. Cal/OSHA has made available downloadable and printable Lead Warning Signs in English and Spanish and Lead Warning Labels in English and Spanish, and provided tips on posting the signs and using the labels.

Additional Sources: California Department of Public Health, For Employers - Lead Warning Signs and Labels; California Department of Public Health Winter 2015 Newsletter; CSLB Spring 2015 Newsletter, Employers Must Use Cal/OSHA's New Lead Warning Signs

In the New Media Age, Business Cards Still Serve a Purpose...

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In its 2015 Spring Newsletter, the California Contractors State License Board in its article titled Away From a Construction Site? Leave Contact Info with Your Crew encouraging project supervisors and prime contractors to leave a business card with their employees in case a member of California's Labor Enforcement Task Force (LETF), which includes the CSLB, Department of Industrial Relations' Division of Occupational Safety and Health (CalOSHA) and Division of Labor Standards Enforcement, and Employment Development Department, drops by the project. During a drop-by visit, the LETF investigator is trying to identify the company, contractor license number and a telephone number where a responsible party can be reached so that the investigator can confirm that all licensing, workers' compensation insurance, employment, and safety laws are being followed. If there is no one in able to answer these questions, the investigator must make a return visit to the project. The CSLB reported in its newsletter that, in 2014, LETF conducted 613 inspections of active job sites and, 84% of the time, the project was not in compliance with state license, labor, tax, health, safety, or insurance regulations.

California Adds Another License Classification: C-22 Asbestos Abatement

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January 1, 2015, the new C-22 Asbestos Abatement contractor license classification in California became official. The Asbestos Certification (contemplated by Business & Professions Code § 7058.5) continues to be available for contractors who perform asbestos-related work only within the scope of their contractor licenses and these contractors are not required to add the C-22 classification to their existing license.

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Don't Trust, Verify: What Every Business Needs to Know About Certificates of Insurance

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Joseph Jean, Alexander Hardiman and Matthew Putorti published their client alert titled Don't Trust, Verify: What Every Business Needs to Know About Certificates of Insurance. The Alert discusses the general rule in New York that a certificate of insurance (COI), by itself, does not provide insurance coverage. It explains that this means that businesses that rely solely on COIs as evidence of their status as additional insureds might not actually be covered in the event of a loss. A recent New York case, however, is a reminder that this general rule is not the end of the inquiry and that there are possible ways to still get recovery.

Additional Source: Southwest Marine & Gen. Ins. Co. v. Preferred Contractors Ins. Co., No. 153861/2014, 2015 N.Y. Slip Op. 30544(U) (N.Y. Cnty. Apr. 13, 2015).

English Court Trumps Arbitration Clause in Favor of One-Stop Litigation

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorney Ray Sweigart posted his client alert titled English Court Trumps Arbitration Clause in Favor of One-Stop Litigation. The Alert discusses the English High Court in Monde Petroleum SA v WesternZagros Ltd [2015] EWHC 67 (Comm) recently deciding whether a dispute resolution clause in a settlement agreement referring disputes to the English court superseded an arbitration provision in the underlying contract so as to govern resolution of subsequent disputes arising out of both agreements. The court held that the later clause controlled, and it applied a presumption of one-stop adjudication as evidenced by the language of the clause itself as well as the surrounding factual circumstances, including the timing of the agreement to the conflicting provisions.

New York City Largely Bans Employers from Considering Consumer Credit History

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Ken Taber, Julia Judish and Keith Hudolin published their client alert titled New York City Largely Bans Employers from Considering Consumer Credit History. The Alert discusses New York City Mayor Bill de Blasio's recent signing into law of a bill barring employers in New York City from discriminating against employees and applicants based on their consumer credit histories. The Alert explains, among other things, that the exceptions to this new law are much more limited than the exceptions found in similar laws in other states. It encourages New York City employers to review their employment policies to ensure that their employment policies and decisions do not give employees or applicants potential claims of "consumer credit history" discrimination.

Additional Source: New York Int. 0261-2014

WA/OR Delay Implementation of New Solar Photovoltaic Rules

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Recently, the Washington State Department of Labor & Industries (the "Department") announced in its Electrical Currents newsletter (Vol. 19 No. 5 May 2015) that, "[a]fter extensive research into product availability, and feedback from stakeholders, in accordance with National Electrical Code® (NEC®) 90.4, I have made the decision to extend the delay in implementation of three requirements for Solar Photovoltaic (PV) systems until July 1, 2016," which include (1) 690.11 Arc-Fault Circuit Protection (Direct Current), (2) 690.12 Rapid Shutdown of PV Systems on Buildings and (3) 705.12(D)(6) Wire Harness and Exposed Cable Arc-Fault Protection. (Emphasis added).

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