ANAHEIM CALIFORNIA CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Ruling Dealing with Constructive Changes, Constructive Suspension, and the Implied Covenant of Good Faith and Fair Dealing

January 22, 2024 — David Adelstein - Florida Construction Legal Updates
A dispute pending in the Armed Services Board of Contract Appeals (ASBCA) dealt with interesting legal issues on a motion to dismiss. See Appeals of McCarthy Hitt-Next NGA West JV, ASBCA No. 63571, 2023 WL 9179193 (ASBCA 2023). The dispute involves a contractor passing through subcontractor claims due to impacts caused by the COVID-19 pandemic and the government’s response to the pandemic. More particularly, the claim centers on the premise that the government “failed to work with [the contractor] in good faith to develop a collaborative and cooperative approach to manage and mitigate the impacts and delays arising from the COVID-19 pandemic.” See Appeals of McCarthy Hitt. The contractor (again, submitting pass through claims from subcontractors) claimed: (a) constructive changes to the contract entitling it to an equitable adjustment under the Changes clause of Federal Acquisition Regulation (F.A.R.) 52.243-4; (b) construction suspensions of the contractor’s work entitling it to an equitable adjustment under the Suspensions of Work clause of F.A.R. 52-242-14; and (c) the government breached the implied covenant of good faith and fair dealing. Each of these legal issues and theories will be discussed below because they are need-to-know legal issues. Keep these legal issues in mind, and the ASBCA’s ruling on the motion to dismiss as its analysis may demonstrate fruitful in other applications. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Payne & Fears LLP Recognized by Best Lawyers in 2024 “Best Law Firms” Rankings

November 27, 2023 — Payne & Fears LLP
Payne & Fears LLP has been recognized by Best Lawyers 2024 “Best Law Firms” list. Firms included in the 2024 edition of Best Lawyers “Best Law Firms” are recognized for professional excellence with consistently impressive ratings from clients and peers. Payne & Fears LLP has been ranked in the following practice areas:

• Metropolitan Tier 1
  • Orange County
    • Commercial Litigation
    • Employment Law – Management
    • Insurance Law
    • Labor Law – Management
    • Litigation – Labor & Employment
    • Litigation – Real Estate

• Metropolitan Tier 2
  • Las Vegas
    • Commercial Litigation

• Metropolitan Tier 3
  • Orange County
    • Litigation – Intellectual Property

Read the full story...

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Appellate Court Lacks Jurisdiction Over Order Compelling Appraisal

January 16, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventh Circuit recently held that the district court's order compelling appraisal and staying the proceedings pending appraisal was an interlocutory order that was not immediately appealable under 28 U.S.C. 1292 (a) (1). Positano Place at Naples Condominium Association, Inc. v. Empire Indem. Ins. Co., 2023 U.S. App. LEXIS 27961 (11th Cir. Oct. 20, 2023). Postiano Condominium Association suffered damage from Hurricane Irma. Pastiano notified its insurer, Empire, seven months later. Empire investigated the claim and inspected the property. Positano sent a written request for appraisal. Empire did not respond and Pastiano filed suit, alleging that the parties' dispute was not a coverage dispute but a dispute over the amount of the loss. Postiano moved to compel appraisal and to stay the proceedings pending completion of the appraisal. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Meet Orange County Bar Associations 2024 Leaders

April 08, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is proud to share that CEO/Founding Partner Nicole Whyte and Orange County Bar Association’s (“OCBA”) leaders are featured in the Orange County Lawyer (“OCL”) publication, Who’s Who In The OCBA, that was released earlier this month. To see this year’s 2024 board of directors, section leaders, committee chairs, task forces, and charitable fund board, please click here. Nicole Whyte provides individualized counseling and representation in all areas of Family Law. She has served on various OCBA legal committees and boards for over two decades and was elected to OCBA’s Board of Directors in 2024. She is committed to supporting the needs of the OCBA and its thriving and diverse OC legal community. Read the full story...
Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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When OSHA Cites You

April 22, 2024 — Michael Metz-Topodas - Construction Executive
With the strong bonds that form among construction project teams, workers looking out for each other helps keep safety foremost in everyone’s mind. But sometimes, even the very best intentions alone can’t prevent an occasional misstep—a forgotten hard hat, a sagging rope line—which can and often does result in an OSHA citation. These regulatory reminders can bring unfortunate consequences: penalties, higher insurance premiums, potential worker injury claims, loss of bidding eligibility, loss of reputation and even public embarrassment, because citations are published on OSHA’s website. Due to citations’ adverse effects, contractors have incentives to minimize them. They can do this by asserting available defenses, because a citation is only an alleged violation, not a confirmed one. But making defenses available begins well before a citation is issued, well before OSHA arrives to a construction site and well before a violation even occurs. Instead, contractors’ ongoing safety programs should incorporate the necessary measures to preserve OSHA citation defenses in three key areas: lack of employee exposure, lack of employer knowledge and impossibility. EMPLOYEE EXPOSURE To sustain a citation against an employer, OSHA must not only identify an applicable standard that the company violated but also show that the violation exposed employees to hazards and risk of injury. Absent evidence of actual exposure, OSHA often makes this showing by asserting that performing job functions necessarily exposes employees to the cited hazard. Reprinted courtesy of Michael Metz-Topodas, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...
Mr. Metz-Topodas may be contacted at michael.metz-topodas@saul.com

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No Coverage for Roof Collapse During Hurricane

January 29, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Fifth Circuit affirmed the district court's determination that the insured's roof collapse was not covered. Exclusive Real Estate Inv., L.L.C. v. S.G.L. No. 1, Ltd., 2023 U.S. App. LEXIS 29368 (5th Cir. Nov. 3, 2023). A building owned by Exclusive Real Estate partially collapsed during a rain-storm. The insurer, SGL, inspected the roof and determined that there was no coverage. Exclusive sued SGL for breach of contract and bad faith. SGL moved for summary judgment, which was granted by the district court. Exclusive appealed. The poicy covered "direct physical loss to the property" caused by windstorms. Exclusions, however, precluded coverage for losses "caused by rain, snow, sleet, sand or dust unless the direct force of wind or hail damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening." Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Real Estate & Construction News Roundup (09/12/23) – Airbnb’s Future in New York City, MGM Resorts Suffer Cybersecurity Incident, and Insurance Costs Hitting Commercial Real Estate

October 30, 2023 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, the FDIC handles the portfolio from Signature Bank, the U.S. Army Corps of Engineers funds a new center at Illinois, the Athletics take their next steps in their move to Las Vegas, and more!

1. For those looking to rent an Airbnb for future travel to New York City, it just became much harder with new rules taking effect on September 5th. (Natalie Lung, The Washington Post)
2. This past weekend MGM Resorts suffered a cybersecurity incident that affected some of the company’s systems with the extent of the incident still unknown. (ABC)
3. Among issues such as rent increases and general inflation, commercial real estate is also having to contend with rising insurance costs due to climate change. (Justin Worland, Time)

Read the full story...
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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The New York Lien Law - Top Ten Things You Ought to Know

December 23, 2023 — Ralph E. Arpajian - White and Williams LLP
Over the course of my career, I have had the privilege of working with and representing numerous construction lenders (and borrowers/developers) in the financing of some of the largest commercial projects in the United States. A number of these projects have been in New York, where one encounters the New York Lien Law (the “Lien Law”). Many of my clients, particularly those lenders, borrowers, and their counsel, located outside of New York, are often perplexed by my advice regarding the Lien Law and the loan structuring requirements which result. In the hope that it would be helpful (especially for non-New York counsel), I have compiled a “top ten” list outlining, in my view, the most critical (and most perplexing) aspects of structuring New York construction loans under the Lien Law. Read the full story...
Reprinted courtesy of Ralph E. Arpajian, White and Williams LLP
Mr. Arpajian may be contacted at arpajianr@whiteandwilliams.com

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