Best Practices: Commercial Lockouts in Arizona
March 19, 2024 —
Patrick Tighe - Snell & Wilmer Real Estate Litigation BlogIf a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant. However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:
- Do Not Breach the Peace. It is vital when performing a lockout to not breach the peace. What constitutes a “breach of the peace” depends on the particular circumstances at hand. For example, if a tenant arrives during the lockout and becomes angry or threatens violence, the landlord should stop performing the lockout and return at a later time. As a general rule of thumb, it is best to perform lockouts in the early morning hours or in the late evening hours when the landlord is less likely to encounter the tenant.
- Provide A Notice of Default. Many commercial leases require the landlord to provide a notice of default before the landlord can lock out a defaulting tenant. Check, double check, and triple check that the landlord followed the lease’s notice of default provisions correctly, including that the landlord sent the notices to all required parties in accordance with the time requirements set forth in the lease.
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Patrick Tighe, Snell & WilmerMr. Tighe may be contacted at
ptighe@swlaw.com
Wood Wizardry in Oregon: Innovation Raises the Roof for PDX Terminal
April 15, 2024 —
Aileen Cho - Engineering News-RecordDrones, self-propelled modular transporters and a curtain wall that really does hang off the roof like a curtain are all notable technologies that made installing an 18-million-lb timber roof possible at Portland International Airport. Of equal weight is the emphasis on full-scale sourcing of the timber and representing the Pacific Northwest’s residents, history and geography.
Reprinted courtesy of
Aileen Cho, Engineering News-Record
Ms. Cho may be contacted at choa@enr.com
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Recent Statutory Changes Cap Retainage on Applicable Construction Projects
March 11, 2024 —
Patrick McKnight - The Dispute ResolverRecent reforms to certain state retainage laws have reduced the lawful amount of withholding permitted on construction projects. In theory, retainage allows an owner to mitigate the risk of incomplete or defective work by withholding a certain portion of payment until the construction project is substantially complete. Recent statutory developments in Washington, New York, and Georgia represent significant changes in how much an owner may retain on applicable construction projects in those jurisdictions. The details of each state’s retainage laws vary in many important respects. Most states set caps at 5% or 10%, with important variations depending on the type of project and the amount of progress completed. Some states require retainage to be held in an escrow account, but most do not. Many federal construction projects allow up to 10% retainage, while other federal agencies do not require any retention. See 48 CFR § 52.232-5(e) - Payments Under Fixed-Price Construction Contracts.
The ongoing motivation for retainage reform is typically framed in terms of reducing delays in getting payment to subcontractors who complete their scope of work on time and free from defects.
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Patrick McKnight, Fox Rothschild LLPMr. McKnight may be contacted at
pmcknight@foxrothschild.com
Missouri Protects Subrogation Rights
April 15, 2024 —
Lian Skaf - The Subrogation StrategistThe point at which an insurance carrier possesses the equitable right of subrogation is an issue on which the states have differed. Some allow carriers to pursue rights of subrogation immediately upon payment and some have taken stricter approaches. Missouri falls into the latter group. By not allowing the carrier the right to file suit against third-party tortfeasors until the insured provides its carrier with an assignment of all its rights, Missouri’s approach has opened the door for challenges to subrogation rights.
In Megown v. Auto Club Fam. Ins. Co., 2024 Mo. App. LEXIS 82, the plaintiff-insureds Michael and Jane Megown (the Megowns) suffered a house fire on February 8, 2016. Their insurance carrier, Auto Club Family Insurance Company (Auto Club) reimbursed the Megowns for their property damage in the amount of $722,433.56. Subsequently, the Megowns sued Auto Club for breach of contract and later amended their complaint to add claims against Tyberius Enterprises, LLC d/b/a Crag Electric (Craig Electric), the third-party tortfeasor, for direct negligence, alleging both property damage and personal injuries. Auto Club intervened in the Megowns’ claim against Craig Electric to protect its interest as subrogee for its property damage payment to the Megowns. Craig Electric settled prior to trial, paying $1,000,000.00 to both the Megowns and Auto Club, to be allocated at a later date. After a bench trial that apportioned the settlement with $722,433.56 paid to Auto Club and $277,566.44 paid to Megowns – and a jury trial awarding no further damages – the Megowns appealed.
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Lian Skaf, White and Williams LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
Final Rule Regarding Project Labor Agreement Requirements for Large-Scale Federal Construction Projects
January 29, 2024 —
Aaron C. Schlesinger & Julia Loudenburg - Peckar & Abramson, P.C.Beginning on January 22, 2024, in compliance with President Biden’s February 4, 2022 Executive Order, 14603, federal construction projects with a total estimated cost of $35 million are required to utilize a project labor agreement (“PLA”) unless the contracting agency grants an exception. The Federal Register estimates that this rule will impact approximately 119 IDIQ contracts each year; these contracts have an average award value of about $114 million.
The White House claims the PLAs will improve projects by:
- Eliminating project delays from labor unrest, such as strikes;
- Creating dispute resolution procedures and cooperation for labor-management disputes, such as those over safety;
- Including provisions “to support workers from underserved communities and small businesses”;
- Helping to create a steady pipeline of workers for federal projects; and
- Promoting competition on government contracts so that all builders, even those who are non-union, can bid on jobs that require a PLA.
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Aaron C. Schlesinger, Peckar & Abramson, P.C.Mr. Schlesinger may be contacted at
aschlesinger@pecklaw.com
Emerging World Needs $1.5 Trillion for Green Buildings, IFC Says
December 11, 2023 —
Natasha White - BloombergThe International Finance Corporation is looking to develop a guarantee facility for private investors to boost finance for greener construction in emerging markets, as growing populations, urbanization and industrialization are set to spur pollution far beyond safe limits.
IFC, the world’s largest global development institution focused on the private sector in low-income countries, is working with its counterparts in the World Bank Group to “create a one-stop shop for guarantees offered to private investors,” Susan Lund, vice president for economics and private sector development, told Bloomberg in an interview. We have “really high aspirations to scale that up dramatically for climate finance and in particular for green buildings and decarbonizing the construction sector,” she said.
Lund’s comments follow a recent speech given by World Bank President Ajay Banga who said the bank is working to better unify guarantee insurance across the institutions.
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Natasha White, Bloomberg
Unpunished Racist Taunts: A Pennsylvania Harassment Case With No True 'Winner'
December 04, 2023 —
Richard Korman - Engineering News-RecordThe taunts started in the first days of Andre Pryce’s new job, camouflaged as joking. During the nine months of 2019 spent working as a drill rig hand, mostly in the woods in western Pennsylvania, for a contractor that also performs much construction-related drilling, he said coworkers filled his ears with racist insults.
Reprinted courtesy of
Richard Korman, Engineering News-Record
Mr. Korman may be contacted at kormanr@enr.com
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No Duty to Defend Construction Defect Claims under Kentucky Law
March 25, 2024 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court determined that the insurer was not obligated to defend construction defect claims under Kentucky law. Westfield Ins. Co. v. Kentuckiana Commercial Concrete, LLC, 2023 U.S. Dist. LEXIS 222674 (W.D. Ky. Dec. 14, 2023).
HRB, the owner of an apartment complex, filed an arbitration demand against the general contractor, Doster Commercial Construction, for allegedly doing faulty concrete work in the construction of the apartments. Doster added its concrete subcontrator Kentuckiana Commercial Concrete - and 16 other subcontractors - to the arbitration. Kentuckiana tendered the claim to its insurer, Westfield. Wesfield defended. Doster claimed it was an additional insured under the Westfield policy and also sought coverage. Westfield refused the defend Doster. Westfield argued there was no "occurrence."
Westfield then sued both Doster and Kentuckiana in federal court, seeking a declaration that it had no duty to defend either. Westfield moved for a judgment on the pleadings.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com