Contractor Prevails in Part Against CalOSHA in Valley Fever Case
February 26, 2024 —
Garret Murai - California Construction Law BlogFever. Specifically, Valley fever. Caused by the fungus Coccidioides. It lives in the top two to 12 inches of soil, can become airborne when the soil is exposed, and can cause respiratory illness and even death. And apparently, it is present in many parts of California particularly in the Central Valley and along the coast. Who knew?
In
Granite Construction Company v. Occupational Safety and Health Appeals Board, Case No. C086704 (2023), contractor Granite Construction was cited by CalOSHA for exposing its employees to Coccidioides at a large solar power plant known as California Flats Solar Project in Monterey California. The 3rd District Court of Appeal reversed in part. It should be noted that this case originally unpublished, it was then published, and then later depublished, so it should not be relied on for precedential value.
Read the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Catching Killer Clauses in Contract Negotiations
January 29, 2024 —
James T. Dixon - Construction ExecutiveRisk-management personnel who are in the business of reviewing and negotiating construction contracts have some simple tools at their disposal to make sure their edits are addressing all of the killer risk-shifting clauses in those contracts. One of those is the index to that document. But not all authors of construction contract documents are kind enough to include an exhaustive index in their form agreements.
One of the most popular sets of general conditions, the A201 General Conditions published by the American Institute of Architects, includes one that is fairly comprehensive. It identifies the six terms that include a reference to indemnification, for example. On the other end of the spectrum are the innumerable custom forms created by public and private project owners, and these rarely have an index.
Even more powerful than an index is the search or find functions that are available in word processing applications and now in Adobe, the publisher of documents in portable document format, more commonly known as PDF. But with PDF documents, one must be careful to make sure the document under review is in fact searchable. Because every letter counts, it is important to have full confidence in the integrity of the search.
Reprinted courtesy of
James T. Dixon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Connecticut’s New False Claims Act Increases Risk to Public Construction Participants
April 02, 2024 —
Fred Hedberg & William Stoll - Construction Law ZoneAfter several decades, Governor Ned Lamont signed a bill into law, effective July 1, 2023, An Act Concerning Liability for False and Fraudulent Claims, Public Act No. 23-129, eliminating language that previously limited enforcement of Connecticut’s False Claims Act to claims relating to a state-administered health or human services program. The revisions dramatically expanded potential liability under the False Claims Act, allowing both private citizens and the Attorney General to bring actions under the Act in any context, including the construction industry. Consequently, contractors, subcontractors, suppliers and design professionals on public construction projects in Connecticut must be familiar with this newly enacted law and take steps to reduce the risks of doing business on such projects.
Reprinted courtesy of
Fred Hedberg, Robinson & Cole LLP and
William Stoll, Robinson & Cole LLP
Mr. Hedberg may be contacted at fhedberg@rc.com
Mr. Stoll may be contacted at wstoll@rc.com
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Arizona Is Smart About Water. It Should Stay That Way.
February 19, 2024 —
Mark Gongloff - BloombergYou really have to hand it to Arizona: Even as its population has doubled and it has suffered through a decades long megadrought, the state uses less water today than it did 40 years ago.
This success story is the result of what may be the smartest, most conservative approach to water in the country. But homebuilders want to scrap some key elements of this careful system. It’s a bad idea, especially as the climate changes, making the state’s water supply less reliable. And it’s a cautionary tale for the rest of us as we try to adapt to a warming world.
In 1980, alarmed at watching its precious groundwater disappear amid rapid development, Arizona passed the Groundwater Management Act. The law established the Arizona Department of Water Resources, set up water-management zones around cities and required new housing developments to prove they had access to 100 years’ worth of clean water, among other things.
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Mark Gongloff, Bloomberg
The Top 3 Trends That Will Impact the Construction Industry in 2024
December 04, 2023 —
The Hartford Staff - The Hartford InsightsAs more than 40% of the current U.S. construction workforce will retire in the next decade, industry leaders need to equip themselves with the necessary resources to combat the shifting work environment.1
“Trends in the construction industry will fluctuate in the coming years, which can lead to additional risks for industry leaders. It will be important to think about how they can address any potential risk factors. A lot of leaders have been increasing their planning efforts and looking into technology solutions to combat the ongoing labor shortage,” said David DeSilva, head of construction at The Hartford. Here, he outlines the top three top trends for business leaders to watch in 2024.
1. Ongoing Labor Shortages
Construction is an industry that traditionally has a high labor turnover rate, which means companies needs to hire more frequently. This only increases during labor shortages. The construction workforce is up against several factors, including an aging workforce and recruitment struggles.
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The Hartford Staff, The Hartford Insights
Construction Contract Basics: Attorney Fee Provisions
November 13, 2023 —
Christopher G. Hill - Construction Law MusingsI have discussed the need for
attorney fee provisions in your construction contracts in prior posts here at Construction Law Musings, but thought it merited a restatement of the reasons for the inclusion of such fee provisions (and changing of such provisions when presented) here with the second of my
construction contract basics posts.
Why would you want such a provision? The answer is that without it, or a statute specifically allowing for such fees, a Virginia court will not award your attorney fees without such a provision. Virginia, and a lot of other states, follow the so-called “American Rule” when it comes to attorney fees and costs. In short, that rule states that the parties to litigation pay their own way unless they agree otherwise. While it may seem unfair to make a successful litigant pay for the privilege of being right, that is the rule in Virginia. Throw in the fact that Virginia courts
strictly construe construction contracts and voila we have a situation where without a provision in the contract stating that one party or both will be able to collect attorney fees should that contractor or subcontractor prevail, a construction professional that gets sued (whether rightly or wrongly) will be left with a hefty attorney fees bill and no way to recoup those fees through the courts or any other method.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
The Importance of the Recent Amendment to Rule 702 of the Federal Rules of Evidence
January 22, 2024 —
Andrew G. Vicknair - The Dispute ResolverEvery litigator understands that expert witnesses play a key role in litigation, especially when dealing with construction issues. Expert testimony at trial can be a deciding factor in persuading a judge or jury in your client’s favor. It is so important that, as parties get closer to trial, litigators often spend considerable time filing motions to limit or disqualify certain aspects of expert testimony in an effort to gain an advantage at trial. Because experts are a key aspect of the trial process, it is important to understand the various rules governing use of expert testimony, primarily Rule 702 of the Federal Rules of Evidence.
On December 1, 2023, amendments to Rule 702 of the Federal Rules of Evidence went into effect which added the language in underline below and removed the language which is crossed out:
Rule 702. Testimony by Expert Witness
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
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Andrew G. Vicknair, D'Arcy Vicknair, LLCMr. Vicknair may be contacted at
agv@darcyvicknair.com
Natural Hydrogen May Seem New in Town, but It’s Been Here All Along
April 22, 2024 —
Elina Teplinsky & Sheila McCafferty Harvey - Gravel2Gavel Construction & Real Estate Law BlogWhen it comes to renewable energy, hydrogen is hailed as a pivotal resource in the zero-carbon game plan. Hydrogen energy is accessible, produces lower greenhouse gas emissions and can use existing gas infrastructure to power electricity and heat, produce other gases and fuels, and more. Recently, a “new” type of hydrogen—has captured the attention of climate scientists. Natural hydrogen—often referred to as gold hydrogen—stands apart from other, more established types of hydrogen, which require extraction and expensive maneuvering to produce. Natural hydrogen exists underground in its pure form (i.e., it’s not combined with other molecules). Estimates vary, but some researchers suspect that Earth holds as much as
five million megatons of hydrogen beneath our feet. Extracting just 2 percent of that supply, in theory, has the potential to get us to net-zero emissions for 200 years.
From Past Prediction to Accidental Discovery
Viacheslav Zgonnik, CEO of the Denver-based startup Natural Hydrogen Energy,
told the New York Times that Russian chemist Dmitri Mendeleev (also known as the “Father of the Periodic Table”) wrote about the presence of natural hydrogen as long ago as 1888. Somehow, the information was lost along the way, and when pockets of such hydrogen were occasionally found, they were treated as anomalies.
Reprinted courtesy of
Elina Teplinsky, Pillsbury and
Sheila McCafferty Harvey, Pillsbury
Ms. Teplinsky may be contacted at elina.teplinsky@pillsburylaw.com
Ms. Harvey may be contacted at sheila.harvey@pillsburylaw.com
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