Articles Posted in Construction Generally

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Roughly two weeks before annual National Stand-Down Week (May 2-6), New York’s Appellate Division, RebarGridSecond Department, in Vitale v. Astoria Energy II, LLC, affirmed a trial court’s dismissal of a worker’s personal injury claim resulting from a fall at a construction site. Specifically, the Appellate Division held that Vitale failed to create an issue of fact as to whether an alleged dangerous condition on a construction project presented an elevation-related hazard in accordance with New York’s Scaffold Law – Labor Law §§ 240(1) and 241(6). Labor Law § 240(1) was designed to prevent elevation-related risks, and holds owners and contractors absolutely liable (without consideration of the worker’s comparative fault) in the event of a statutory violation that causes an elevation-related injury. Labor Law § 241(6) imposes vicarious (but not absolute) liability upon owners and contractors for a violation of the Industrial Code that causes a worker’s injury, but allows consideration of comparative negligence.

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Join in the National Safety Stand-Down May 2-6, 2016. The purpose of the stand-down is to raise awareness about preventing fall hazards in the construction industry. Fatalities caused by falls from elevation continue to be a leading cause of death for or serious injury to construction workers. The U.S. Department of Labor, Occupational Safety & Health Administration’s (OSHA) goal is to reach 5 million workers, which is more than more than half of the construction workers in the U.S. To participate in the safety stand-down, a company can host a voluntary event to talk directly to employees about safety. The event doesn’t have to be formal. Companies are encouraged to adopt a stand-down plan approach that works best for their workplace, including, for example, safety activities such as safety equipment inspections, developing rescue plans, or discussing job specific hazards. It can even take the form of a “toolbox talk.”

Additional Source: Evento nacional destacará importancia de la prevención contra las caídas: primera causa de muerte y lesiones graves en industria de la construcción; Suggestions to Prepare for a Successful Stand-Down; Stand Up For Safety, Join in the Safety Stand-Down June 2 – 6

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California Assembly Bill 2699 (Gonzalez) is a bill to watch if you are a home improvement contractor that solarinstalls solar energy systems or, for that matter, a contractor in California. AB 2699 would, among other things, require the Contractors State License Board (CSLB) to develop a “solar energy system disclosure document” and, in turn, require solar energy systems companies to provide this document to its customers prior to the completion of a sale, financing, or lease of a solar energy system.

AB 2699 would also require the CSLB to establish through regulation requirements for a contractor to maintain a blanket performance and payment bond for the purpose of solar installation work and, of particular note, even with this bond, the contractor will be subject to the down-payment restriction set forth in California Business & Professions Code § 7159.5(a)(8). If this bill is signed into law, this latter requirement will certainly translate into increased costs for contractors that currently do not have in place a blanket performance and payment bond. In turn, as a practical matter, this lIsley will translate into higher costs for consumers who want to install a solar system because such costs will trickle down to them. There may also be pressure put on others in the industry to reduce costs to make up for this increase in costs.

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In A Double Standard in Construction Defect Coverage Cases?, I discuss the recent decision of Allied Property & Casualty Insurance Co. v. Metro North Condominium Associates.  This decision highlights why only a minority of courts still hold to the fiction that construction defects cannot give rise to an “occurrence” covered under a commercial general liability (CGL) policy, why construction companies and others need to understand how this rule is applied, and why contractors may want to avoid choosing Illinois law to control their CGL policy.

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In New Legislation Makes San Francisco the First City to Mandate Fully Paid Parental Leave for Employees, Pillsbury attorneys Paula Weber and Erica Turcios discuss the San Francisco Board of Supervisors’ unanimous approval of legislation that requires most San Francisco employees to receive six weeks of fully paid parental leave. Enforcement is set to begin on January 1, 2017.

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In San Francisco Gross Receipts Tax – Frequently Asked Questions from the Real Estate Industry, taxPillsbury attorneys Michael Cataldo and Rachel Horsch discuss frequently asked questions posed by commercial real estate investors and operators regarding how the San Francisco Gross Receipts Tax (GRT) may apply to typical commercial real estate investments and transactions.

Photo:  GotCredit, Taxes, Taken on April 14, 2015 – Creative Commons

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In Supreme Court to Hear False Claims Act “Implied Certification” Appeal, we provide a primer for the oral argument that will be heard by the U.S. Supreme Court on April 19, 2016 in United Health Services supremecourtv. United States ex rel. Escobar, No. 15-7. The Court is expected to resolve the current split among federal appellate courts on the so-called “implied certification” theory of liability under the federal False Claims Act (FCA). The FCA imposes significant financial penalties for “knowingly present[ing], or caus[ing] to be presented, a false or fraudulent claim for payment or approval,” and prohibits contractors from making false statements “material to a false or fraudulent claim.” As many government contractors are well aware, the FCA has long been the Government’s favorite enforcement tool against federal contractors. Stay tuned for updates!

Additional Source: Schumer Alleges False “Made in America” Representations on GSA Website: False Claims Act Inquiry to Follow?

Photo:  David, US Supreme Court, Taken Sept. 19, 2014 – Creative Commons

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In REIT Citizenship and the Impact of Americold Realty Trust on Jurisdictional Challenges, we discuss the Supreme Court’s unanimously ruling in Americold Realty Trust v. ConAgra Foods, Inc. that unincorporated entities organized as “real estate investment trusts” (REITs) under Maryland law are citizens of every state in which at least one of their shareholders is a citizen. We predict that Justice Sonia Sotomayor’s holding, which appears broad enough to apply to any manner of statutory trusts or similar entities organized under various states’ laws, likely will steer more litigation where REITs and other unincorporated entities are parties into state courts—not federal courts.

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EPA has spent almost 40 years wrestling with the definition of “solid waste” for purposes of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (RCRA). The statutory definition of the term contemplates that it includes “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities…” 42 U.S.C. § 6903(27). Whether something is discarded and thrown away is pretty clear. However, this statutory definition appears to give EPA the flexibility—and subject to EPA’s regulatory authority—to define solid waste to include materials that are sometimes discarded. Adding to the interpretive issues, a solid waste can be liquid or gaseous, depending on the statutory definition. EPA has also been wary of countenancing a recycling exception, which has created a morass of regulatory interpretation. With more frequency, courts are being called upon to consider this definition.  Below we discuss two such recent court decisions of interest.

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In Fabozzi v. Lexington Insurance Company, the United States Court of Appeals for the Second Circuit has reaffirmed that ambiguities in an insurance policy must be construed against the insurer.

The Fabozzis were renovating their home when they learned that its interior walls were so rotted that the entire house was actually in the process of collapsing. Faced with the complete loss of their home, the Fabozzis understandably turned to their homeowners’ insurer, Lexington Insurance. The homeowners’ policy provided coverage for collapse caused by certain named perils, including hidden decay. But the policy also required that the collapse be “caused only by one or more of” the named perils. That simple, 7-word phrase led to Lexington’s denial of coverage and a decade of litigation.

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