The EPA Acts, Kind of, on Asbestos
4/26/19
By: Koty Newman On April 17, 2019, the EPA finalized a significant new use rule (“SNUR”) governing asbestos use. The SNUR ensures that any discontinued uses of asbestos will not re-enter the marketplace without the EPA’s review. The EPA explains that this will close a loophole in its regulatory scheme for asbestos. Thus, if a…
Georgia Court of Appeals Provides Guideline for Drafting Enforceable Exculpatory Clauses in Georgia
4/23/19
By: Bart Gary and Jake Carroll Exculpatory clauses are terms in a contract that shift the risk of loss to the other party or a third-party, or attempt to limit one’s obligations under a contract. A typical exculpatory clause is a “limitation of liability” provision, which is commonly used in agreements for services—especially professional services,…
Who Did What for Whom? Construction Lien Rights in Georgia Depend on the Contractor, Not the Cost
3/18/19
By: Jason Kamp In 2013, the Georgia General Assembly expanded the scope of items covered under its construction lien statute, O.C.G.A. § 44-14-361, by amending subsections (c) and (d). The statute now allows contractors to claim liens for contract expenditures for general conditions or other costs that are not strictly for labor, services, or materials…
The Supreme Court Sets Groundwater Pollution in its Sights
2/20/19
By: Ze’eva Kushner Yesterday, the United States Supreme Court decided to hear an appeal from the Ninth Circuit’s decision in Hawai’i Wildlife Fund et al. v. County of Maui, 886 F.3d 737 (9th Cir. 2018). The Supreme Court will be hearing this case in the Fall to resolve a circuit split regarding whether discharging pollution…
Georgia Court of Appeals Concludes the Term “Affiliate” is Ambiguous
2/4/19
By: Jake Carroll In Salinas v. Atlanta Gas Light Company,[1] the Georgia Court of Appeals’ recently examined whether Georgia Natural Gas (“GNG”) and Atlanta Gas Light Company (“AGLC”) were “affiliates.” Both AGLC and GNG were owned and controlled, either directly or through an intermediary, by a company named AGL Resources, Inc. In Salinas, AGLC sought…
Amendments To Pennsylvania’s CASPA Will Change The Landscape Of Payment Disputes
8/3/18
By: Jonathan Romvary Anyone who has ever done any amount of work as a contractor or who has represented them in collections cases has learned from hard experience that it can be all but impossible to get paid for one’s work. In Pennsylvania, the Contractor and Subcontractor Act (CASPA) was introduced in 1994 as a…
Cyberrisks to Contractors and Securing Proper Coverage
6/29/18
By: Barry Brownstein Increasingly sophisticated hackers have targeted personal and business data held by companies like Target Corp., Sony Corp., Equifax Inc. and Yahoo Inc. during the past decade. The construction industry is just as susceptible to these risks as any other industry. As construction projects increase in size and there is more sharing of…
Little Miller, Big Implications
6/20/18
By: Samantha Skolnick In Georgia, when an individual performs work on a state construction project, they can file a lien for non-payment. The lien is against the project through Georgia’s Little Miller Act. The claim itself is not against the state or county’s actual property. The claim is against a posted bond, and is a…
Pay-When-Paid Clauses: A Cautionary Tale
3/28/18
By: Jake Carroll With the recent surge of construction projects in Georgia, the memories of owner and developer bankruptcies following the 2008 financial crisis may have grown dim. Nevertheless, material suppliers and subcontractors must remember that when the pace slows down, their contracts could leave them without remedy or recourse to seek payment. One of…
Cumis Counsel Limited: Insurer-Appointed Counsel Requires Actual Conflict of Interest
2/9/18
By: David G. Molinari The California Third District Court of Appeals has ruled that the right to Cumis counsel, independent counsel paid by the insurer (San Diego Federal Credit Union v. Cumis Insurance Soc’y, 162 Cal. App. 3d 358 (1984)) requires an actual as opposed to a potential conflict. In Centex Homes v. Saint Paul…
Georgia Court of Appeals Upholds Statute of Limitations Defense in Exterior Siding Case
1/9/18
By: Jan S. Sigman In Georgia, a negligent construction action must be brought within four years from when the right of action accrues. The right of action accrues when the plaintiff first could have maintained the action to a successful result, which means substantial completion of the project in original construction cases or the sale…
12/22/17
By: Jake Carroll Given the pace of construction in Florida over the past three decades, it should come as no surprise that the Sunshine State has a robust statutory scheme for construction defect claims. Indeed, Florida’s Construction Defects Statute, Chapter 558, Florida Statutes (“FCDS”), outlines a complex pre-suit procedure requiring owners to send a “notice…