Duane Morris partner Richard Lowe will be presenting at the American Bar Association (ABA) Section of Litigation’s Regional CLE Workshop, titled “Yes, You Can Try a Construction Case: Planning and Handling a Construction Trial From Voir Dire to Closing Arguments,” which will be held on Wednesday, September 9, 2015, in New York City. Mr. Lowe will participate in a panel discussion on “Wrapping It Up; Closing Arguments and Effective Use of Jury Instructions in a Construction Case” from 4:00 p.m. to 5:00 p.m.
For more information about the CLE workshop, please visit the event page on the Duane Morris website.
The calculation of lost labor productivity, also termed labor inefficiencies, is one of the most significant elements of damages in a construction dispute and one of the most controversial. If these damages are proven, the monetary value claim can be a considerable amount. This is far from surprising seeing as labor costs can make up to 30 to 50% of overall project costs and if these projects lose money, the unanticipated labor costs result from lesser unexpected productivity. Lost labor productivity has become controversial since owners and general contractors are skeptical of the methods in curating these calculations can be considered questionable, speculative, and illusory. The article will further define how lost labor productivity claims developed; the interplay of Daubert in the pursuit of, and defense against, such claims; and recent federal and state case law addressing loss productivity.
The full article, written by Duane Morris partner Daniel E. Toomey and Duane Morris associate Joshua S. Marks, along with Dr. Tong Zhao, P.E. and J. Mark Dungan of Delta Consulting Group, Inc., is available on the Duane Morris LLP website, courtesy of The Construction Lawyer.
The economic loss rule is alive and well in California. In State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232 Cal.App.4th 1227, the Court of Appeal ruled that a concrete supplier (State Ready Mix, Inc., or “Supplier”) could not seek equitable indemnity or contribution from an engineer for the cost to remove and replace Supplier’s concrete that was non-compliant with Supplier’s own contract. Although the Court minced no words when it described the factual basis for its ruling (“If [Supplier] wants to see who is at fault, it should look in the mirror.”), the most notable aspect of the opinion was its analysis and rejection of the legal theories of potential liability. Continue reading Tort-Based Indemnity/Contribution Remedies Not Available to Shift Contract Damages
Under the Occupational Safety and Health Administration’s (OSHA) Recordkeeping regulation (29 CFR 1904) covered employers are required to prepare and maintain records of serious occupational injuries and illnesses. Revisions to the OSHA reporting requirements went into effect on January 1, 2015. The revised rule expands the list of severe work-related injuries that all covered employers must report to OSHA.
Employers are now required to contact OSHA within 24 hours following any in-patient hospitalizations, amputations, or loss of an eye. Additionally, employers are now required to notify OSHA of work related fatalities within eight hours following a fatality. Previously, an employer was not required to report a single hospitalization, amputation or loss of an eye, as only work-related fatalities and in-patient hospitalizations of three or more employees were required to be reported.
Employers can provide notice to OSHA of an occurrence by either: 1) calling the nearest local OSHA office during normal business hours; 2) calling OSHA’s free and confidential number at 1-800-321-OSHA (6742); or 3) reporting the occurrence electronically using the new online reporting form that is expected to available in mid-January.
In addition to the new reporting requirements, OSHA updated the list of industries that are exempt from the requirement to routinely keep OSHA injury and illness records. The new list of exempt industries is based on the North American Industry Classification System and injury and illness data from the Bureau of Labor Statistics. Note that the new rule maintains the exemption for any employer with ten or fewer employees, regardless of their industry classification, from the requirement to routinely keep records.
The reporting requirement rule was revised to allow OSHA to focus its efforts more effectively to prevent fatalities and serious work-related injuries and illnesses. Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels, summed up the purpose of the new rule: “OSHA will now receive crucial reports of fatalities and severe work-related injuries and illnesses that will significantly enhance the agency’s ability to target our resources to save lives and prevent further injury and illness. This new data will enable the agency to identify the workplaces where workers are at the greatest risk and target our compliance assistance and enforcement resources accordingly.”
For more information about the new rule, visit OSHA’s website.
On July 9, 2014, Pennsylvania Governor Tom Corbett signed into law Act 117 of 2014, which amends the Pennsylvania Mechanics’ Lien Law (MLL), 49 P.S. 1101, et seq., to provide that a construction loan secured by an open-end mortgage where at least 60 percent of the proceeds are “intended to pay or used to pay” all or part of the “costs of construction” will have lien priority ahead of any filed mechanics’ lien claims, even when the visible commencement of work was prior to the recordation of the open-end mortgage.
Click here to read the full Alert, written by Duane Morris associate Louise S. Melchor.
Duane Morris partner Albert Bates, Jr., will be presenting at the 2014 Deloitte Energy Conference: A Global Industry . . . Competing Locally, which will be held on Tuesday, May 13, and Wednesday, May 14, 2014, at the Gaylord National Resort and Convention Center in National Harbor, Maryland. Mr. Bates will serve as a panelist during the Elective Session – Sector Breakouts on Power on May 14, 2014, where he will discuss strategic considerations of major capital projects, including evolving project delivery systems and inherent risks, as well as proactive project risk management and controls.
CPE Credit Amount and CPE Field of Study Subject Area(s) are pending review by the National CPE Compliance Group. Participants can receive up to 12 hours of CPE credits for attending this conference in multiple subject areas depending upon sessions attended.
Continue reading Duane Morris Partner Albert Bates, Jr. to Present at the Deloitte Energy Conference
This winter it seems like no one has been able to escape the fury of Mother Nature. As a result, construction projects all over the country are now behind schedule. Because “time is money” for all of the project participants, disputes related to time extensions, liquidated damages, acceleration claims, and other delay damages are expected. In anticipation of these disputes, contractors and owners should review their contracts and consult with an attorney before submitting or responding to a weather related claim.
Continue reading Managing Snow and Weather Related Delays on a Construction Project
With its new Standard Construction Contract, issued in December 2013, the City of New York (the “City”) has implemented numerous significant changes as compared with its 2008 standard contract. The most widely discussed change in the City’s standard construction contract is the elimination of an express “no damage for delay” clause. At least ostensibly, the new contract represents a more flexible approach to delay damages by enabling the contractor to recover for delays in factual settings not previously amenable to delay claims. This Alert briefly summarizes some of the new provisions.
Click here to read the full Alert.
The good news is that public works construction projects for municipalities are projected to remain a major sector of construction activity for the foreseeable future. The not-so-good news is that municipal bankruptcy filings are on the rise, and they are likely to increase. The issues facing parties under contract with a municipality when it files for bankruptcy protection are playing out nationally in places like Stockton, California, and Detroit, Michigan. Construction lawyers now more than ever need to know the risks of a public owner filing for bankruptcy protection before project completion, and what they can do in the event it does so before the project is closed out—thereby jeopardizing the owner’s ability to pay.
Click here to read the full article, written by Duane Morris partners Robert Hendrickson and Ron Oliner.
Duane Morris’ Construction Group received a preeminent ranking in the U.S. News-Best Lawyers 2014 Best Law Firms results released today: the selection as Law Firm of the Year for Construction Law. Duane Morris is the only firm to ever hold this honor for two consecutive years.
Only one law firm is recognized as the 2014 Law Firm of the Year per practice group. According to U.S. News Best Lawyers, Duane Morris received this designation for Construction Law due to its impressive overall performance.
For the full story, please click here.