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By James Pugh & Dave Lanferman On October 22, 2009, the California Supreme Court decided not to review the Court of Appeal's decision in the landmark Palmer/Sixth Street Properties v. City of Los Angeles case. [See SMRH Blog 08/18/2009, for detailed discussion of Palmer decision.] This decision, although favorable for Palmer, could launch "inclusionary zoning" and similar affordable housing laws across the state into uncertain legal waters as municipalities attempt to enforce... Posted on October 29, 2009 at 10:58 am

Standard Pacific Corporation v. Superior Court of San Bernardino (Garlow) (2009) ___ Cal. App. 4th ____ (Aug. 14, 2009, No. E046844) By James Pugh The Fourth District Court of Appeal recently held that construction-defect plaintiffs must provide developers with notice and an opportunity to repair before filing suit. This holding in Standard Pacific Corporation v. Superior Court of San Bernardino (Garlow) confirms the procedural requirement of Senate Bill 800, which is also known as the "Fix It... Posted on October 1, 2009 at 02:40 pm

Connecticut v. American Electric Power Company Inc., ____F.3d ____, No. 05-5104 (2nd Cir. 2009) By James Rusk States and private plaintiffs may sue utility operators under the federal common law of nuisance to abate carbon dioxide ("CO2") emissions that contribute to global warming, the Second Circuit Court of Appeals held this month. Although the 139-page opinion appears to open a new front in the fight over climate change, its full import is uncertain. The court held only that plaintiffs had... Posted on September 30, 2009 at 11:20 am

On November 11, 2009 Judge Virginia Kendall of the Northern District entered memorandum opinion and orders in the matter styled, ExxonMobil Oil Corp. v. Amex Construction Co., Case No.07 C 4278 applying a Daubert challenge from third party defendants to opinions held by Amex's retained expert Dr. Nicholas Biery of SEA, Ltd. One of the defendants, Ambitech Engineering, was charged with negligence in the design of the plastic piping, which was serving as a temporary by-pass for the return cooling... Posted on November 13, 2009 at 12:01 pm

Normal 0 false false false MicrosoftInternetExplorer4 /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} According to the 7th... Posted on November 5, 2009 at 07:42 am

Post hoc ergo propter hoc may be a logical fallacy, but the alternative, the maxim that an event could not be caused by an occurrence happening afterward, sort of an ante hoc ergo non propter hoc finds some harbor in the law. This is the case in the recent opinion of Rock v. State Farm Fire and Casualty Co. (Doc. No. 3-08-0915). In Rock, there was an underlying case where home purchasers brought a complaint against the sellers of their home for fraudulent, knowing, reckless and/or negligent... Posted on October 26, 2009 at 12:37 pm

The recent decline in non-federal construction opportunities has resulted in a rapidly growing interest in the federal contracting market. The much-publicized American Recovery and Reinvestment Act of 2009 ("ARRA"), often referred to as the "Economic Stimulus Program," has made billions of dollars available to federal agencies to fund construction projects. Add to that the billions of dollars being spent on the Hurricane & Storm Damage Risk Reduction System in New Orleans ('HSDRRS"), the... Posted on October 25, 2009 at 06:04 pm

The Court of Appeals for the Federal Circuit has decided two cases that assure the continued use of the Multiple Award Task Order Contract ("MATOC") in federal construction contracting. In the first case, Weeks Marine, Inc. v. United States, the United States Court of Federal Claims decided a bid protest in favor of Weeks Marine. The protest challenged the right of the South Atlantic Division of the Corps of Engineers to use MATOC procurement to solicit all maintenance dredging and shore... Posted on October 6, 2009 at 04:30 am

Contractors continue to be concerned about the impact that the filing of protests or claims will have on their past performance evaluations in negotiated procurements. While it is never a good idea to file a frivolous protest or claim, it is improper for procurement officials to downgrade past performance evaluations simply because a contractor has exercised a right afforded by law and regulation. In fact, the Office of Management and Budget issued a Memorandum for Senior Procurement Executives... Posted on October 4, 2009 at 07:47 pm

An article online this week states that Knauf Plasterboard Tianjin Co. Ltd., one of the leading defendants in a consolidated federal court lawsuit against drywall manufacturers in China, offered homeowners who sign up for he omnibus class action by December 2, 2009 and show proof that their homes were built with KPT drywall won't have to pay $15,000 to serve the company in China through the Hague Convention, according to an order issued Monday by United States District Court Judge Eldon Fallon.... Posted on November 4, 2009 at 05:58 am by Donald B. Brenner

A recent report in the Wall Street Journal details the ongoing frustrations of US homeowners who have been affected by the defective Chinese drywall epidemic. Homeowners were hopeful that Inez Tenebaum, Chair of the United States Consumer Product Safety Commission, would bring relief back to the US after a recent visit to China. Prior to the trip, Tenenbaum said she would speak to Chinese officials in an effort to gauge their willingness to help pay for the estimated $15-$25 billion dollars in... Posted on October 28, 2009 at 11:34 am by Donald B. Brenner

I found an article on line this week which reports that in the wake of the defective Chinese drywall epidemic, insurance Companies have started to deny claims, and even worse, refusing to renew entire policies. Thousands of homeowners nationwide have been affected by the defective building materials are now finding little assistance. Experts warn that cases in which insurers drop policies or send notices of non-renewal based on the presence of the Chinese drywall, will become rampant as... Posted on October 16, 2009 at 09:23 am by Donald B. Brenner

By Michael Schrier and Joel Rubinstein The State of Maryland is cracking down on what it perceives to be a problem with construction or landscaping contractors and subcontractors misclassifying workers as "independent contractors" instead of as "employees." Maryland's new enforcement mechanisms have the potential to impose significant penalties for misclassification. As a result of these new enforcement schemes, all construction companies with workers located in Maryland and who are classified... Posted on November 12, 2009 at 09:44 am

From the Editors Welcome to the 10th edition of Arbitration World, a publication from K&L Gates' Arbitration Group that highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution. We hope you find this edition of Arbitration World of interest, and we welcome any feedback (email: peter.morton@klgates.com or ian.meredith@klgates.com). In This Issue &#xe2€&#xa2 News from around the World &#xe2€&#xa2... Posted on October 8, 2009 at 11:54 am

By Peter Dzakula, K&L Gates 1. What is the risk? Since the end of April 2009, when swine flu (Influenza A(H1N1)) was first reported in Mexico and the United States , swine flu has spread globally. It has been reported that there are now almost 36,000 cases in 76 countries (with over 6,000 cases in the UK ). As a result, the World Health Organisation has raised the swine flu alert to "Phase 6" and referred to it as a "global pandemic". At this stage, it has been reported that the symptoms of... Posted on September 10, 2009 at 02:28 pm

Congrats to the Buck Law Group and its affiliated partners on the recent launch of Northwest Hub, an excellent online newspaper for the land use, real estate and environmental community. Posted on August 18, 2009 at 04:01 pm

...for you bridge lovers out there....truly awesome feat of engineering. Posted on July 9, 2009 at 01:07 pm

A fitting way to end the week...the latest dispatch from the Great Condo Wars: Division 1's recent opinion in Ballard Residential v. Pacific Rim Framing establishes: Defect Causation: The condo used prefabricated Tyvek panels for the exterior. Pacific Rim did not install the Tyvek, but did list in its scope of work the obligation to "staple and tape ends of panelizer installed Tyvek vapor barrier." Eventually, the Tyvek panels fell off and/or permitted water intrusion. The Association sued... Posted on May 15, 2009 at 05:35 pm

As you may know, the deadline for sending a notice to owner (preliminary notice) varies from state to state and is also a function of the project type (private, public, federal). The State of Oregon requires that a notice to owner be post-marked within 8 business of the claimant's first performance. Of course, it will relate back if mailed out on the 10th or 15th day, but we'll leave that for another blog. So, the question then becomes, what happens if a supplier sends the preliminary notice... Posted on May 30, 2008 at 11:38 am by Dave

The Miller Act (40 USC &#xc2&#xa73131 et seq.), which controls the bond claim process on federal construction projects, sets forth specific notice requirements if a party wishes to secure its receivable by claiming against the general contractor's payment bond. The two requirements are: 1. Submit a notice of claim to the general contractor by certified mail or personal service within 90 days of the last day of performance. 2. Foreclose the claim within 1 year of the last day of performance. However,... Posted on May 26, 2008 at 12:31 pm by Dave

Construction contracts between general contractors and their sub-trades often contain what is called a "pay-when-paid" (or "pay-if-paid") clause. When a contract has this kind of a clause, the contractor is trying to relieve itself of the responsibility of paying its sub-trades until the contractor has been paid by its customer. On private works projects, if this kind of clause is allowed, the sub-trade is generally required to wait - and wait - for payment until its customer is paid. The exact... Posted on May 26, 2008 at 12:23 pm by Dave

Many of my readers have requested a clip of Green Building Law Blog's appearance on MSNBC discussing the amount of stimulus funding going to green projects. The link is below: [www.msnbc.msn.com] Posted on November 19, 2009 at 11:59 am

In July, I wrote an analysis of the "green" spending in the American Reinvestment and Recovery Act-ARRA, also known as the "stimulus bill." I concluded that as of July the spending on green programs accounted for only .28% of the total allocation for those programs in the ARRA-- $33.2 million had been paid out for green stimulus programs, and an additional $307 million in public transit dollars. So&#xe2€&#xa6where are we four months later? More money has been paid out--about $1.5 billion--but it pales... Posted on November 17, 2009 at 08:25 am

I know, I said I was going on maternity leave, but before I do so, I will appear on MSNBC tomorrow, November 17, 2009 at 2:30 E.S.T. to discuss green spending through the American Reinvestment and Recovery Act, also known as the stimulus bill. My original post on this topic is available here. Posted on November 16, 2009 at 01:49 pm

Paul at Wizbang has an amazing story about the failure of the New Orleans levees and "the Katrina videotape Congress didn't want you to see." His post begins, We've all heard the story, in the early morning hours of Aug... Posted on August 29, 2006 at 11:45 am by Don Hawbaker

It's been around for a while but this note to the judge from an Illinois juror is probably representative of the thoughts of many jurors who have suffered through atrocious civil cases. Check out the video at this site for... Posted on August 5, 2006 at 11:39 am by Don Hawbaker

I'm probably the last one to see it, but this Notice of Appeal was filed recently in the United States District Court in Tacoma.... Posted on August 2, 2006 at 05:29 am by Don Hawbaker

My colleague Steve McBrady and I recently presented "Green Building in the 21st Century" at the national conference of the Construction Users Roundtable. Our slideshow is available below. Our primary message was that the federal government's investment of $25 billion in green building projects, through the American Recovery and Reinvestment Act will prop up the green building industry for the next few years. Other presentations by government officials regarding federal construction projects... Posted on November 20, 2009 at 11:41 am

[Ed. Note: written by Steve McBrady] Starbucks coffee has always been an integral part of what we do here at Green Building Law Update. Until now, it was primarily a means of keeping our readers awake while we write endlessly on Green building and sustainable development in government contracts and in commercial construction, or discuss emerging Green regulatory issues. Today, however, Starbucks has moved front-and-center for another reason - the announcement, on November 12, 2009, that as of... Posted on November 16, 2009 at 03:13 am

The primary theme of Green Building Law Update is green building litigation will develop. To date, one of the rare examples of green building litigation is Shaw Development v. Southern Builders, a case that involved a project's failure to achieve LEED certification in a timely matter. Other examples of green building disputes are sparse. But I am confident the litigation will develop. A recent article, "'Green' projects create new exposures", suggests others agree: "There is certainly going to... Posted on November 13, 2009 at 05:57 am

November 18, 2009- Scott Wolfe, Jr., founder and member of Wolfe Law Group, LLC was invited to speak at the Louisiana Engineering Society: New Orleans Chapter's Monthly Meeting. Scott would like to extend his thanks to the LES for the invitation to speak and the opportunity to meet several people in the engineering industry. The LES has three main chapters in the state of Louisiana and is dedicated to the advancement of the engineering profession by pursing an active leadership role through... Posted on November 19, 2009 at 12:16 pm

November 18, 2009- Scott Wolfe, Jr., founder and member of Wolfe Law Group, LLC was invited to speak at the Louisiana Engineering Society: New Orleans Chapter's Monthly Meeting. Scott would like to extend his thanks to the LES for the invitation to speak and the opportunity to meet several people in the engineering industry. The LES has three main chapters in the state of Louisiana and is dedicated to the advancement of the engineering profession by pursing an active leadership role through... Posted on November 19, 2009 at 05:54 am

The U.S. Green Building Council's LEED&#xc2&#xae has recently released the newest in its line of guidebooks. LEED (Leadership in Energy and Environmental Design) is the foremost authority in green building construction, conservation and sustainability. Then new guide book is entitled "Green Office Guide: Integrating LEED Into Your Leasing Process" It is a comprehensive guide on how to incorporate green building techniques into the landlord / tenant contractual relationship. Previously LEED has... Posted on November 17, 2009 at 01:24 pm

Normal 0 false false false MicrosoftInternetExplorer4 /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} We've been reporting... Posted on November 18, 2009 at 02:42 pm

It's still in its infancy, but Google Scholar's beta version allows you to search scholarly articles, patents or legal opinions and journals. Here's a sample search for "weather tite Illinois" Posted on November 18, 2009 at 11:55 am

On November 11, 2009 Judge Virginia Kendall of the Northern District entered memorandum opinion and orders in the matter styled, ExxonMobil Oil Corp. v. Amex Construction Co., Case No.07 C 4278 applying a Daubert challenge from third party defendants to opinions held by Amex's retained expert Dr. Nicholas Biery of SEA, Ltd. One of the defendants, Ambitech Engineering, was charged with negligence in the design of the plastic piping, which was serving as a temporary by-pass for the return cooling... Posted on November 13, 2009 at 12:01 pm

CONGRESS EXPANDS MILITARY FAMILY LEAVE COVERAGE In the 2010 National Defense Authorization Act ("NDAA") signed by President Obama on October 28, 2009, Congress expanded the military-related family and medical leave that it created in the 2008 NDAA. The expansion became effective upon the President's signature. This new legislation means the Family Medical Leave Act regulations that became effective earlier this year are already outdated with respect to military-related FMLA leave. Caregiver... Posted on November 17, 2009 at 05:49 am by Dave Seitter

Check out www.epa.gov/region8/building/indexlhtml for information on the subject of sustainability. A good website to obtain all the information you may need about this developing area. Posted on November 10, 2009 at 02:51 pm by Dave Seitter

The Heart of America Chapter of Associated Builders and Contractors (ABC) has filed a legal action demanding that Governor Jay Nixon and Missouri Attorney General Chris Koster enforce the construction procurement laws of the state. The lawsuit also asks the court to stop current construction, invalidate all construction contracts and force board members to repay any state funds illegally spent. The "Fairness in Public Construction Act," passed in 2007, is designed to maintain and promote the... Posted on November 3, 2009 at 03:47 am by Dave Seitter

What is contingency fee? Here is the definition: A method of paying a lawyer for legal representation by which, instead of an hourly or per job fee, the lawyer receives a percentage of the money her client obtains after settling or winning a case. Often contingency fee agreements award the successful lawyer between 20% and 50% of the amount recovered [read definition on wikipedia]. In plain english, you attorney works on a "contingent" basis, meaning the attorney's payment is dependent on the... Posted on November 16, 2009 at 09:45 am

There are 231,400 homes in Seattle built prior to the advent of a mandatory state energy code. This means that if un-renovated, these homes are likely to have little or no insulation in their walls and attics, outdated heating equipment, and air leakage equivalent to having 5x5ft hole in one of their walls. Homes built today under the increasingly stringent energy code are not exempt for similar performance defects. Poorly installed insulation is the norm, missing draft stops abound, and the... Posted on October 29, 2009 at 11:23 am

Beginning this month on Construction Law Monitor and Louisiana Green Law, Corey Fitch, a project manager for Seattle based company, Sound Home Performance will become a regular guest blogger. With a background in green building construction, Fitch is dedicated to serving residential energy needs, from energy efficiency to energy generation. Fitch specializes in the following areas: Whole house diagnostic evaluations for energy efficiency, comfort, health & safety, and durability; General... Posted on October 27, 2009 at 04:23 pm

This post is authored by: Clayton Graham & Thomas Goeltz Landowners and developers in Washington state should be aware of a spate of recent legislation aimed at prolonging the life of active land development permits. Developers who request these extensions in a timely manner could effectively extend the life of their development approvals-including certain building permits, use permits, subdivision and other land use approvals-and may be able to save themselves the hassle and expense of... Posted on November 6, 2009 at 08:52 am

In a recent opinion linked here-Post v. Tacoma, the Washington Supreme Court struck down a number of building code violation penalties that the City of Tacoma had assessed against a property owner. The City assessed numerous fines against the owner (Post) based on the condition of a some of his properties in the City. The ordinance at issue permitted the assessment of daily fines for continuing building code violations, which is a common element of local code compliance provisions. The Court,... Posted on October 30, 2009 at 02:29 pm

If your Halloween festivities include building a haunted house, take care to comply with any local regulations that apply to the structures or your attraction could be shut down. Examples abound this time of year. Officials in Tonawanda, New York, have shut down one haunted house that had become a 15-year long tradition in its neighborhood. In an article on the structure, it is described as being "approximately 1200 square feet," and "built with over 300 2x4s [and] 400 feet of plastic." In Simi... Posted on October 21, 2009 at 12:20 pm

Question: My son has been employed by the same company for the last three years. The company has fallen on hard times and has not been paying their employees. During the last three months he has not been on time once. They are suppose to pay each week and at the moment they owe him for 6 weeks. He recently found a different job and quit his job. But they still owe him for the 6 weeks plus 3 weeks paid vacation. What is the best course of action for him to take to get the money that is owed him?... Posted on October 4, 2009 at 10:46 am by Randy B. Birch

Just a short shout out to those that attended the construction Lien Seminar that Darrel Bostwick (darrel@Bostwickprice.com) and I taught this past week for Lorman in Salt Lake. I thought we had a great turnout and were able to discuss the issues and review in detail the past, present and probable future of mechanic's liens in Utah, including the State Construction Registry, UCA 38-1-27, as well as the Residence Lien Restriction and Lien Recovery Fund Act, UCA 38-11-101 et seq. If anyone has any... Posted on September 4, 2009 at 05:14 pm by Randy B. Birch

In 1999 President Clinton signed into law the Gramm-Leach-Bliley Act. That Act authorized the Federal Trade Commission to regulate the disclosure of nonpublic personal information of customers. The Federal Trade Commission has now promulgated final rules that go into effect on August 1, 2009 for the protection of nonpublic personal information of customers. The FTC announced July 29, 2009 that they would delay enforcement until November 1, 2009. This act applies to any entity that regularly... Posted on August 25, 2009 at 08:21 am by Randy B. Birch

Mike Pappas was featured in Building Baltimore Magazine's February 2009 Edition for his work with the ABC Joint Legislative Committee. Mike received a "Member of Distinction" Award in January 2009for his dedication and political action with ABC over the past three years. Posted on April 14, 2009 at 08:44 am by Harrison Law Group

Mike Pappas was interviewed yesterday [March 25, 2009] at the Baltimore County Bar Association's Technology Expo, held at the Towson National Guard Armory from 11 am until 2 pm. Pappas, the chair of the Bar Association's Technology Committee, said that "the Expo was the culmination of the hard work of all of the members of the Committee and in fulfillment of the Committee's mission to inform the Bar Association's members about technology in their practices and lives." The Expo included 24... Posted on March 26, 2009 at 06:11 am by Harrison Law Group

BY: Faith E. Harrison, Esquire Originally Published In The HLG Constructor, September, 2008 Do we need an employee handbook? More and more clients in recent years have inquired as to whether their company should have an employee handbook or employment manual. My answer is to always recommend having one, not because it is required by law (it is not required by law), but because it is the most effective way to make sure that ALL employees understand the company's policies and procedures. Many... Posted on December 3, 2008 at 10:05 am by Harrison Law Group

In a previous post we saw that an ambiguity can be used aggressively to throw out a bid even after contract award. There is more to the story. When a bid specification is ambiguous, the burden is not entirely on the specification drafter. If the protester had opportunities to seek clarification and failed to do so, then its interpretation will not be reasonable and the specification will not be ambiguous. In re: Protest of Andersen Consulting, SC Procurement Review Panel 1993-18... Posted on December 23, 2008 at 12:12 pm

When a solicitation of bids is drafted, it is important for the requestor to be familiar with the precise requirements that lead to the procurement. This should enable the drafter to create bid documents that are clear and specific. Otherwise, the bid process may have to be re-done, even after an award was made. A specification is ambiguous if it "is of uncertain meaning and can reasonably be interpreted in more than one way." In re: Protest of Warehouse Distributing Company, SC Procurement... Posted on December 23, 2008 at 12:09 pm

The requirement that specifications not be "unduly restrictive" is an important pro-competition provision of South Carolina's procurement law. SC Code Ann &#xc2&#xa711-35-2730 (1973) (http://www.scstatehouse.gov/code/t11c035.htm). Unduly restrictive specifications have been held "inadequate" or "not independently arrived at in open competition" under SC Code of Laws Regulation 19-445.2085(C) (http://www.scstatehouse.gov/coderegs/c019.htm). In re: Protest of B&D Marine and Industrial Boilers Inc, SC... Posted on December 19, 2008 at 11:50 am