Labor Shortages In Construction
December 04, 2023 —
Jason Feld & Chris Bates - Kahana FeldSimilar to other industries, the ongoing labor shortage crisis in the United States is detrimentally impacting construction activities in both the residential and commercial sector. According to the Bureau of Labor Statistics, the turnover rate for the construction industry since 2021 has risen to 56%. And while the national unemployment rate ranges between 0.4% to 7.5%, the unemployment rate for construction is roughly four times the national average (See, Associated Builders and Contractors, Markenstein Advisors Report dated July 28, 2023). 73% of workers preferred to stay in a remote work environment, and another 40% of the global workforce has elected to voluntarily remove themselves from the workplace. (See, 2021 Microsoft Work Index). In particular with the construction industry, employment rates have returned to pre-pandemic levels hovering around 12% unemployment in 2020 to 6% in 2022. (See, Joint Center for Housing Studies at Harvard University, Carlos Martin).
So where did all the workers go? During the height of the 2020 Covid-19 Pandemic and for the next few years, the county experienced what most people are calling “The Great Resignation”. May people took jobs with better pay and better alignment with their values. Approximately 40% stated a new business. Many elected to become stay-at-home parents forgoing a paycheck to raise their families while the other spouse works, especially due to the rising costs of childcare. About 1 in every 4 baby-boomers retired. Others took part-time employment, entered military service or left the workforce due to disability or injury. (See, Bloomberg Businessweek).
Reprinted courtesy of
Jason Feld, Kahana Feld and
Chris Bates, Kahana Feld
Mr. Feld may be contacted at jfeld@kahanafeld.com
Mr. Bates may be contacted at cbates@kahanafeld.com
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Congratulations to BWB&O’s Newport Beach Team for Prevailing on a Highly Contested Motion to Quash!
January 08, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPCongratulations to Newport Partners Tyler Offenhauser and Jonathan Cothran, and Associate Anisha Kohli, who recently prevailed on behalf of BWB&O’s client before the Orange County Superior Court on a highly contested Motion to Quash Service based on Plaintiff’s failure to timely file and serve a DOE Amendment, naming our client.
BWB&O’s client was the owner of a building where Plaintiff, a licensed electrician, was electrocuted while performing an upgrade to the building’s electrical infrastructure. Plaintiff’s original lawsuit named only the building’s tenant, who was also represented by BWB&O. BWB&O was successful earlier this year on a Motion for Summary Judgment under the Privette Doctrine and won judgment on behalf of the client/tenant. While that MSJ was pending, Plaintiff surreptitiously added the building’s owner to the suit with a DOE Amendment, after several months earlier learning the owner and then tenant were entities operated by the same individual. However, Plaintiff never informed counsel or any other party of the filing. Moreover, after the MSJ was granted, Plaintiff then waited several more months to serve the building’s owner.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
A Matter Judged: Subrogating Insurers Should Beware of Prior Suits Involving the Insured
March 25, 2024 —
Gus Sara - The Subrogation StrategistIn New Jersey Mfrs. Ins. Co. v. Lallygone LLC, No. A-2607-22, 2024 N.J. Super. Unpub. LEXIS 120, the Appellate Division of the Superior Court of New Jersey (Appellate Division) considered whether New Jersey Manufacturers Insurance Company (the carrier) could bring a subrogation action after its insured, Efmorfopo Panagiotou (the insured), litigated and tried claims related to the same underlying incident with the same defendant, Lallygone LLC (the defendant). The Appellate Division affirmed the trial court’s finding that the prior lawsuit extinguished the carrier’s claims.
In Lallygone LLC, the insured hired the defendant to renovate a detached garage on his property. In March 2022, while the defendant’s employees were removing existing concrete slabs, the garage collapsed. After the incident, the insured stopped paying the defendant. In addition, the insured filed a claim with the carrier, which ultimately paid the insured over $180,000 for the damage under its property policy. The carrier sent a subrogation notice letter to the defendant.
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
No Subrogation, Contribution Rights for Carrier Defending Construction Defect Claim
December 23, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe Court held that the insurer defending the additional insured general contractor had no right to equitable subrogation or equitable contribution from a separate carrier who also insured the general contractor as an additional insured. Old Republic Gen. Ins. Co. v. Amerisure Ins. Co., 2023 U.S. Dist. LEXIS 170293 (N.D. Ill. Sept. 25, 2023).
Tanger Grand Rapids, LLC hired Rockford Construction Company to build the Tanger Outlet Center. Rockford subcontracted with Kamminga & Roodvoeis, Inc. (K&R) to work on the pavement for the outlet mall. Under the subcontract, K&R agreed to maintain primary commercial general liability insurance for itself, with Rockford as an additionial insured. K&R obtained a policy from Amerisure. For additional paving work, Rockford subcontracted with Michigan Paving & Materials, CP. The subcontract also required Michigan Paving to maintain primary coverage, with Rockford as an additional insured. Michigan Paving obtained a policy from Liberty Mutual.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Federal Magistrate Judge Recommends Rescission of Policies
February 12, 2024 —
Craig Rokuson - Traub LiebermanIn the recent case of Union Mut. Fire Ins. Co. v. 142 Driggs LLC, 2023 U.S. Dist. LEXIS 220393, Magistrate Judge Lois Bloom of the United States District Court for the Eastern District of New York recommended granting the insurer's default judgment and holding that of three policies issued to 142 Driggs LLC ("Driggs") be rescinded ab initio.
Driggs had represented on its insurance applications that it did not provide parking to anyone other than itself, tenants, and its guests at the subject insured premises. However, Union Mutual learned that Driggs had been renting out three garages to non-tenants. Second, Driggs represented that the mercantile square footage was around 1,000 square feet, when in actuality, it was larger than allowed under the policies.
Union Mutual provided underwriting guidelines in connection with its default motion, which state that "parking provided for anyone other than the insured, tenants and their guests," presents an "unacceptable risk." The guidelines also state that answering yes to any "preliminary application questions (which presumably included those regarding mercantile square footage and parking) is an "unacceptable risk." The court held that these guidelines supported a finding that Driggs made material misrepresentation and that Union Mutual relied on these misrepresentations in issuing the policies. The court, as such, recommended that the policies at issue be rescinded from inception.
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Craig Rokuson, Traub LiebermanMr. Rokuson may be contacted at
crokuson@tlsslaw.com
Congratulations to Las Vegas Team on Their Successful Motion for Summary Judgment!
May 06, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPThis case arose from an alleged trip and fall on an uneven surface in a parking lot outside of BWBO’s client’s restaurant. Plaintiff alleged more than $385,000 in past medical specials (with high potential for future care and treatment) with exposure in excess of $1,000,000.00. The Plaintiff named as Defendants BWBO’s client as well as several entities related to their landlord.
Early in the case, Las Vegas Partner Jeffrey W. Saab and Senior Associate D. Ryan Efros moved for summary judgment based on terms of the restaurant’s lease. They argued that based on the lease, the duty to maintain the surface of the parking lot fell exclusively to the landlord, rather than the restaurant’s client. Plaintiff opposed the motion arguing that the prevailing case law held that any agreement between a tenant and its landlord does not preclude a plaintiff from asserting either or both defendants breached their duties of care. Jeff and Ryan distinguished that case and successfully persuaded the Court that there could be no contractual duty and no common law duty to maintain the parking surface, clearing the way for the court to grant summary judgment.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Carbon Sequestration Can Combat Global Warming, Sometimes in Unexpected Ways
April 02, 2024 —
Michael S. McDonough, Robert A. James & Amanda G. Halter - Gravel2Gavel Construction & Real Estate Law BlogWhether by land, by sea or through human innovation, carbon sequestration is likely coming to (or already happening in) a destination near you. As our planet, overdosed on greenhouse gases, battles climate disasters, a logical solution is to simply stop pumping carbon dioxide into the air. Legislation worldwide is aimed at that target, but reducing output alone may not be enough. There are still billions of tons of extra CO2 already in the atmosphere—this crossroads is where sequestration comes into play.
Carbon sequestration is exactly what it sounds like—the storage of CO2. Once carbon is sucked out of the air, or in some cases pulled directly from industrial smokestacks, sequestration can be undertaken in a lot of different ways. Carbon storage happens naturally, when forests and oceans absorb and convert CO2 into organic matter, but carbon dioxide can also be artificially injected into deep underground rock formations (or wells), or in some cases technological approaches repurpose carbon into a resource like concrete, or as a catalyst in a closed-loop industrial system. However it’s accomplished, the point of sequestration is to stabilize carbon and ensure it doesn’t creep back into our atmosphere. Researchers, like those at the United Nations’ Intergovernmental Panel on Climate Change, now say that CO2 removal is vital to keeping global warming to 1.5 degrees Celsius (past that threshold, climate change could reach catastrophic levels). A 2023 University of Oxford study estimated that, currently, about two billion metric tons of carbon dioxide are being removed each year, primarily through land management (i.e., planting trees), and suggested that we need to double that amount to avoid dangerous global warming levels.
Reprinted courtesy of
Michael S. McDonough, Pillsbury,
Robert A. James, Pillsbury and
Amanda G. Halter, Pillsbury
Mr. McDonough may be contacted at michael.mcdonough@pillsburylaw.com
Mr. James may be contacted at rob.james@pillsburylaw.com
Ms. Halter may be contacted at amanda.halter@pillsburylaw.com
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You Say Tomato, I Say Tomahto. But When it Comes to the CalOSHA Appeals Board, They Can Say it Any Way They Please
January 08, 2024 —
Garret Murai - California Construction Law BlogWe lawyers do a fair amount of reading. Documents. Court decisions. Passive aggressive correspondence from opposing counsel. As well as statutes, regulations and administrative guidance. And you might be surprised how often words can be ascribed very different meanings depending on who is reading it. Such, I suppose, is the nature of language. When it comes to public agency interpretations of its own regulations, however, you would be well to heed that authors are often the best interpreters of their own works, or at least that’s how the courts tend to view it, as in the next case L & S Framing Inc. v. California Occupational Safety and Health Appeals Board, Case No. C096386 (July 24, 2023).
The L & S Framing Case
Martin Mariano, an employee of L & S Framing, Inc., suffered a brain injury when he fell from the “second floor” while working on a single family house. What, exactly, this “second floor” was, was a point of a contention in the legal case that followed.
Read the full story...Reprinted courtesy of
Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
