Articles Posted in Construction Generally

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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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In our post Contractor Advertising in the Age of Social Media, we promised you a by-no-means exhaustive resource for the various laws, regulations and guidance on social media “advertising” for contractors throughout the United States. The following list is a state-by-state resource to help one get started navigating the never-uniform and always changing contractor licensing-related laws, regulations, rules and licensing agency guidance for contractor advertising. This list does not include opinions issued by any courts and, obviously, these would relevant to your analysis as well and, like laws, regulations and regulatory agency guidance, new court decisions are issued changing the legal landscape over time. This blog also will not be regularly updated.

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Most states and, in some cases, cities that require a person to obtain a license, or register, to perform work as a contractor or specialty contractor (e.g., electrical, HVAC, plumbing, other specialized trade work) socialmediaregulate what disclosures are required when the contractor advertises its services. Most commonly these laws or rules require the contractor to include its name and license number. What may surprise many is that “advertising” is often broadly defined or understood to include a business card, contract proposal and final contract, sign, billboard, lettering or decal on a vehicle, brochure, newspaper, magazine, airwave (e.g., TV, radio, etc.) or any electronic transmission (e.g., a company website, social media, including but not limited to. Instagram, Twitter, LinkedIn, Facebook, etc.). This includes any form of directory under any listing denoting “contractor” or any word having a similar meaning (though certain trade directories with limited circulation are sometimes exempt). This certainly may even include t-shirts, sweatshirts, softball team uniforms, etc. that employees wear bearing the contractor’s logo and company information. Given how social media has radically expanded and otherwise transformed the traditional mediums and outlets for offering and promoting services, it is more important than ever that contractors carefully consider whether they are “advertising” their services in compliance with any applicable state’s or, in some cases, city’s laws or rules when using these communication channels.

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On January 29, 2016, the Texas Supreme Court, in Railroad Commission of Texas v. Gulf Energy Exploration Corporation, unanimously reversed a decision of the Court of Appeals for the Thirteenth District (Corpus Christi) which had sustained the liability of the Texas Railroad texasflagCommission for the erroneous plugging of an abandoned offshore well, and remanded the matter for a new trial. Under Chapter 89 of the Texas Natural Resources Code, one of the Commission’s responsibilities is to protect Texas’ land and water from pollution by providing additional means to plug abandoned wells. Chapter 89 also provides a “liability defense” to those engaged in plugging operations in good faith.
The Texas Supreme Court ruled that the Commission was entitled to have the jury assess its good faith defense. Interestingly, the Texas Supreme Court also held that the “good faith” defense will also apply to Gulf Energy Exploration Corporation’s breach of contract claim against the Commission, and that the defense is not limited to tort actions.

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Pillsbury would like to congratulate the winners of the “Built by Women” contest in DC, which highlights women’s contributions to the city of Washington D.C in the areas of architecture, engineering, womeninconstructionconstruction, and real estate. Categories include Civic, Commercial, Cultural, Institutional, Landscape, Mixed-Use, Residential, Transportation, Urban Design.  The Built By Women initiative was started by the Beverly Willis Architecture Foundation to celebrate the contributions of women to the built environment and to support women pursing building professions.

You can view the full list of winners on the BWAF website here.  Additionally, the National Building Museum will honor the winning sites in the historic Great Hall the weekend of March 19 and 20.  Congratulations to all of the winning women on your accomplishments and contributions to D.C.’s built environment.

Photo:  University Salford Press Office, Women in Construction – Creative Commons

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On February 5, 2016, the U.S. Court of Appeals for the Eleventh Circuit, in the case of Palmer Ranch Holdings, LTD, et al., v. Commissioner of Internal Revenue, issued a long and complex ruling baldeagle-1-300x200that largely affirms the Tax Court’s decision regarding a contested evaluation of a conservation easement that resulted in significant claimed deductions. Perhaps somewhat surprisingly, the Tax Court sided with Palmer Ranch on its valuation of the conservation easement and the Eleventh Circuit went onto voice concern that the valuation was lowered from $25 million to $21 million by the Tax Court.

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The Environmental Protection Agency (EPA) is required by Section 108 of the Comprehensive Environmental Response, Compensation, and liability Act of 1980, 42 U.S.C. §§ 9601–9675 (CERCLA), to establish financial assurance and responsibility rules for classes of facilities that mopare associated with the production, transportation, treatment, storage or disposal of hazardous substances. Despite the deadlines provided by the law, more than 30 years have passed without any rules or proposed rules being published by EPA.

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The Presidio Army Base in San Francisco, once the headquarters of the Sixth Army and a favorite post of many soldiers and their families, is now a National Park and a National Historic Landmark. For many presidio-300x200years, plans to renovate and protect the old post have been thoroughly discussed and vetted. On January 27, 2016, the U.S. Court of Appeals for the Ninth Circuit removed one more obstacle to the consummation of these plans by  affirming the district court’s summary judgment in favor of the Trust.

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A Wisconsin District Court, in Mary Haley, et al. v. Kolbe & Kolbe Millwork Co. Inc., No. 14-cv-99-bbc, recently denied a motion to certify a proposed nationwide class action of plaintiffs alleging their windows are defective. They claim breach of express and implied warranties under state law relating to contemplationofjusticeallegedly defective windows installed in the representative plaintiffs’ homes as far back as 1997, and four proposed subclasses across 50 states. Ruling on the plaintiff’s motion, the District Court found that they failed to satisfy the requirements of Federal Rule of Civil Procedure 23(a) (prerequisites) and (b) (types of actions). It identified numerous defects in the plaintiffs’ motion, and observed that “class certification of all of the issues in this case would be unmanageable under Rule 23(b)(2) or (3).” Even so, the Court has given the plaintiffs one final opportunity to file a request for certification, which addresses the concerns it outlined in a 48-page Opinion and Order. Whether or not this particular effort succeeds, cases such as Mary Haley should stay on the radar of industry general counsel. Wherever there is potential for class certification, there is the potential for significant potential exposure and industry-wide repercussions.
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In the fall of 2015, California Governor Jerry Brown signed into law Senate Bill 560 (Monning), a bill sponsored by the California Contractors State License Board (CSLB), that allows CSLB enforcement representatives (ERs) to issue a Notice to Appear in a California superior court enforcing a licensee’s obligation to secure valid and current PoliceCarLights-300x199workers’ compensation insurance in accordance with Section 3700.5 of the California Labor Code. Prior to enactment of SB 560, only California district attorney offices could issue citations to enforce this obligation. California law requires employers to have workers’ compensation insurance if they have even one employee, which includes a responsible managing employee (RME), and Section 7125 of the California Business & Professions Code requires all contractors with a C-39 Roofing classification to have a Certificate of Workers’ Compensation Insurance or a Certificate of Self-Insurance on file with the CSLB. California contractors and subcontractors should expect an uptick in the CSLB’s enforcement of California’s workers’ compensation insurance requirements.

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