Articles Posted in Construction Generally

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Check out my latest blog for Pillsbury’s Policyholder Pulse titled A Subcontractor’s Defective Work Is an Occurrence: Weedo Wobbles … and Falls Down. It discusses a recent ruling in New Jersey,  Cypress Point Condominium Assoc., Inc. v. Adria Towers, L.L.C., on the issue of whether damage caused by a subcontractor’s faulty workmanship constitutes “property damage” and an “occurrence” under a property developer’s commercial general liability insurance policy.

Additional Source: Weedo v. Stone-E-Brick, Inc.

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Two Court of Appeals, one in the District of Columbia and the other in Texas, issued opinions regarding the federal Highway Beautification Act, 23 U.S.C. § 131 (HBA) and its state counterpart, the Texas Highway Beautification Act, respectively. The first decision illustrates how the courts will apply the principles of administrative law in a wide variety of cases. The plaintiffs had to demonstrate they had standing to prosecute their claims, and if so, whether the Department of Transportation’s (DOT) interpretation of the HBA was reasonable. In addition, the decision gives the agencies the elbow room to make room for emerging technologies.

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The Equal Access to Justice Act (EAJA) directs a court to award fees and other expenses to prevailing party in a civil action against the United States unless the government’s position was substantially justified or special circumstances make an award unjust. The EAJA has been used to recover attorney’s fees from the United States in connection with challenges to federal administrative actions. In the case of SecurityPoint Holdings, Inc. v. TSA, decided on September 2, 2016, the U.S. Court of Appeals for the D.C. Circuit held that SecurityPoint was entitled to substantial attorney’s fees (in the amount of $86,714.78) under the EAJA when its successful litigation against the TSA was a remand to the agency that required some corrective action. In so ruling, the Court of Appeals overruled Waterman Steamship Corp. v. Maritime Subsidy Board, a decision that had the effect of making SecurityPoint ineligible for the award of attorney’s fees, and may expand the right to recover these fees in the future. Continue reading

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Recently, my colleagues Micah Miller, Melinda Barker, Jennifer Jordan McCall, Kim Schoknecht and Elizabeth Fry published an alert titled Proposed Section 2704 Regulations that discusses proposed regulations that, if adopted, would affect the valuation of family-owned businesses interests transferred among family members by eliminating certain discounts currently recognized under the law. The U.S. Treasury Department released the proposed regulations on August 2, 2016. They will be subject to public comment for the next 90 days and a public hearing will be held on December 1, 2016.

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The Nevada State Contractors Board’s annual Contractor Training Day is scheduled for August 23 from 8:30 a.m. – 12:00training p.m. at 5400 Mill Street, Reno, NV 89502 and September 13 at the Clark County Building Department in Las Vegas.  The free half-day event will cover (1) Liens and Contract Law and (2) Issues in Labor and Employment Law. For more information, contact Scott Smith at (702) 486-1165 or ssmith@nscb.state.nv.us.

Photo:  Steve S., Studying, Taken November 9, 2006 – Creative Commons

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The state and federal appellate courts have issued a surprising number of significant rulings in a variety of environmental and administrative law controversies in late July and early August:

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  • On August 8, the U.S. Court of Appeals for the Second Circuit issued a very long (127 pages) ruling  affirming in all respects the (400-page) opinion of the U.S. District Court for the Southern District of New York which found that a massive judgment obtained by the Ecuadorian plaintiffs against Chevron for alleged pollution in the Ecuadoran rain forest by Texaco many years ago was, in fact, procured by fraud. The case is Chevron Corporation v. Donzinger, et. al. The District Court enjoined Donzinger and his associates from seeking to enforce in the United States an $8.6 billion judgment; imposed a constructive trust for Chevron’s benefit on any property that Donzinger and his associates received that is traceable to this judgment or its enforcement; and held that the conduct of this litigation against Chevron violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (RICO) and also warranted relief under the common law of New York. The defendants-appellants argued that Chevron had no Article III standing to pursue this action, and that to uphold the judgment for Chevron would violate principles of international comity and judicial estoppel. This result confirms again the inestimable value of an independent, fearless judiciary, which is so sadly wanting in many areas of the world.

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Today, we published our alert Supreme Court’s Environmental and Administrative Law Decisions in 2015-2016 Term. ScotusStairsIn the Advisory, we provide a brief report on some of the significant U.S. Supreme Court actions from January through June 2016 related to environmental and administrative law.

*Pillsbury summer clerk Brittney Sandler made significant contributions to this article. Sandler is currently enrolled at Georgetown University Law Center where she serves as editor for the Georgetown Law Journal and as a legal research and writing fellow.

Photo:  Phil Roeder, Supreme Court of the United States, Taken March 15, 2011 – Creative Commons

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Today, the Financial Crimes Enforcement Network (FinCEN) announced, effective August 28, 2016golden and continuing for 180 days, it is expanding its earlier Geographic Targeting Orders (GTO) requiring information about the natural persons behind shell companies used to purchase high-end residential real estate for “all cash.” FinCEN has been collecting this data on Manhattan and Miami-Dade County, Florida since January and believes it is “on the right track” in its anti-money laundering (AML) efforts and investigation of possible money laundering using real estate deals. It will collect this information in California for San Francisco, San Mateo and Santa Clara counties; Los Angeles County; and San Diego County. It will expand to all boroughs of New York City and to Broward and Palm Beach counties in Florida. Bexar county in Texas, that includes San Antonio is also included. Monetary thresholds for each area identified are provided in FinCEN’s announcement. Title insurance companies are required to comply with the GTO and provide the information.

Additional Source:  FinCEN’s First GTOs of 2016 Directed at U.S. Title Insurance Companies and “All Cash”

Photo: Images by John ‘K’, Blue and Gold, Taken April 1, 2013 – Creative Commons

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My colleagues Anthony Raven, Olivia Matsushita and Andrew White recently published an interesting advisory onco2 the future of carbon dioxide (CO2) injection enhanced oil recovery (EOR). The Future of Carbon Dioxide Injection EOR in the United States is the first advisory in a periodic series exploring legal issues relating to CO2 EOR and serves as an introduction to the EOR process. Their next advisory will focus on issues relating to the regulatory regime for CO2 transportation.

Photo:  Zappys Technology Solutions, CO2, Taken September 21, 2013 – Creative Commons

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Pillsbury’s Policyholder Pulse Law blog recently posted an interesting blog,flood2 Use Contractor’s Pollution Liability Insurance to Clean Up Potential Gaps in Your CGL Coverage by , on the importance of contractors having the right liability coverage in place in the event that a flash flood or other natural disaster causes damage that is classified by the insurer as a pollution event.

Photo:  Erich Ferdinand, Deluge, Taken Nov. 29, 2012 – Creative Commons