Construction Law

NLRB Memo: Effective Remedies in Organizing Campaigns

Posted on January 13, 2011
The National Labor Relations Board ("NLRB") General Counsel Lafe Solomon released a memo on December 20, outlining the NLRB's commitment to protecting employee free choice in unionization.Solomon emphasized the importance of remedial efforts after NLRA violations...

Construction Layoffs on the Rise

Posted on January 13, 2011
The Bureau of Labor Statistics reported on December 22, 2010, that mass layoffs in the construction industry continued to increase since September.  26,767 construction workers filed initial unemployment claims in November after construction firms initiated 325 mass layoffs that month...

NLRB Proposes New Notice Requirement

Posted on December 27, 2010
The National Labor Relations Board ("NLRB") proposed a new notice requirement on December 20, 2010, which affects all employers subject to the National Labor Relations Act ("NLRA").  If the Board passes this proposed rule, employers will be required to post a notice in the workplace informing employees of their rights under the NLRA...

New Rule Affecting all Federal Subcontractors

Posted on December 21, 2010
http://edocket.access.gpo.gov/2010/pdf/2010-30565.pdf Effective December 13, 2010, contractors on all federal projects ?shall not enter into any subcontract in excess of $30,000? with contractors at any tier who have been suspended or disbarred.  Previously this rule, which exists to protect the government?s interest, only applied to first tier contractors...

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Faulty Workmanship is not an Occurrence

Posted on December 17, 2010
The South Carolina Supreme Court determined in L-J Inc. v. Bituminous Fire and Marine Ins. Co., that faulty workmanship, standing alone, could not constitute an occurrence.  However, if the faulty workmanship causes an accident it would be an occurrence because it is neither expected nor anticipated from the standpoint of the insured...

When is Insurance Coverage Triggered in Construction Defects?

Posted on December 17, 2010
An occurrence is an event unexpected or unanticipated from the standpoint of the insured.  In terms of construction defects, it is also important to determine which insurance policy an occurrence triggers.  Construction defects often do not manifest themselves for many years, thus the insurer may have changed several times over...

What is Standing to Sue?

Posted on December 17, 2010
In order to successfully bring a lawsuit, the plaintiff must have standing to sue.  Standing means the plaintiff is the right person to bring a particular claim before the court for adjudication.  There are three requirements for standing: injury, causation, and redress...

Court Finds for Landscaper Based on Quantum Meruit

Posted on December 17, 2010
A South Carolina landscape company agreed to perform landscaping and install an irrigation system for a Bluffton homeowner for $30,000. The arrangement was sealed with a handshake and was never reduced to writing. After the landscaping began, the homeowner requested additional labor not included in the original proposal...

How Restrictive Covenants Affect the Permit Application

Posted on November 19, 2010
In South Carolina, a local planning agency is required by S.C. Code § 6-29-1145 to inquire in the permit application, or in written instructions provided to the applicant, if a parcel of land is restricted by a recorded covenant. The planning agency itself is not required to conduct a search of public records, but if the agency has actual notice of a covenant that "is contrary to, conflicts with, or prohibits" the activity for which a permit is being sought then the permit may not be issued...

Buyer's Claims Against Architect Dismissed

Posted on November 06, 2010
A property buyer brought suit against the developer and architect after the commercial building he purchased began showing the tell-tell signs of water intrusion.  The buyer originally instituted claims against only the developer, but after the developer filed a third party complaint against the architect for improper design, the buyer decided to add the architect to his complaint as well...

Contractor Indicted for Fraud

Posted on November 05, 2010
A New Jersey contractor was recently indicted on 27 counts involving fraudulently obtained public contracts. The contractor had previously been prohibited from bidding on public contracts due to prevailing wage violations and unpaid fines.  To get around this prohibition, the contractor stole a Social Security number from an acquaintance and used it to obtain a public works contractor registration certificate under a fictitious trade name...

Small Business Jobs Act of 2010

Posted on October 28, 2010
On September 27, 2010 President Obama signed H.R. 5297, the Small Business Jobs Act of 2010 into law.  This legislation will establish a $30 billion dollar small-business lending fund and provide $12 billion in small-businss tax incentives.  Through these and other directives,  it is expected to create hundreds of thousands of jobs...

2010 ADA Regulations Affecting New and Existing Construction

Posted on October 21, 2010
Here are some quick facts regarding the Americans with Disabilities Act (ADA) regulations issued on September 15, 2010. The new standards affect both Title II and Title III of the Act. Title II focuses on nondiscrimination in state and government services, while Title III refers to nondiscrimination on the basis of disability by public accessibility and in commercial facilities...

"In Place" Provision Held Unambiguous

Posted on October 21, 2010
St. Mary Parish hired a general contractor to spread a sand drainage layer at the base of a landfill, install a geotextile fabric over the sand, then cover the fabric with a layer of clay. The terms of the contract stated that the sand and clay would be measured "by the cubic yard of in-place material based on surveys conducted by owner of pre- and post-installation conditions...

"Or Equal" is not Always Equal

Posted on October 16, 2010
A subcontractor was ordered to pay $240,000 plus attorney fees and court costs to the general contractor after a dispute arose concerning an "or equal" provision in the contract. The contract engineer specified that the wastewater treatment project required a Linabond brand "or equal" tank liner...

Workplace Violence Covered Under Workers' Compensation Act

Posted on October 15, 2010
The 8th Circuit Court of Appeals determined that a worker injured in an assault by her coworker was only entitled to workers' compensation and was precluded from bringing a personal injury suit against her employer. The employee was attacked by her coworker at the place of employment and during working hours...

South Carolina Supreme Court Addresses Right to Cure Act

Posted on October 09, 2010
The Plaintiffs in this case brought a class action suit on behalf of themselves and those similarly situated against a plastering company. The complaint alleged defective stucco work on 2,673 homes in a subdivision in Bluffton. In answering the complaint, the plastering company asserted that the Plaintiffs failed to comply with the express provisions of the Notice and Opportunity to Cure Construction Dwelling Defect Act ("Right to Cure Act")...

Insurance Policy Excludes Water Damage From Construction Defects

Posted on October 01, 2010
    The Sixth Circuit Court of Appeals ruled that an insurer was not obligated to pay for water damages to a condominium building because the insurance policy specifically excluded coverage for damages caused or resulting from building construction and design defects...

Recent New York Times Article on Sales Contracts

Posted on October 01, 2010
    This is a very interesting article on the effect of the Interstate Land Sales Full Disclosure Act (Act) on a recent luxury condo purchase. According to the Act, any development with 100 or more units must produce a purchase contract in a form that can be filed in the city registry prior to executing the contract...

Homebuilder May Face Prison Sentence for Knowingly Employing Undocumented Workers

Posted on October 01, 2010
    An Idaho homebuilder charged with employing undocumented workers pleaded guilty last month and could be facing up to six months in prison and a fine of up to $9,000. United States v. Miller, D. Idaho, No. 1:10-po-00191-REB, guilty plea entered 8/31/10...

National Labor Relations Board Finding of Unfair Labor Practices

Posted on September 21, 2010
The National Labor Relations Board determined that a construction company committed unfair labor practices by firing two electricians after a dispute concerning the company?s new ?break in place? policy. The electricians were upset after the company began requiring employees to take their 15-minute breaks at their workstation instead of retreating to nearby ?dry shacks...

False Claims Act Does not Deal with Ordinary Contract Matters

Posted on September 21, 2010
Recently a resigned foreman filed a whistleblower action alleging that a contractor defrauded the government by billing for substandard or defective work on a new US Embassy in Baghdad. According to the foreman?s allegations, the contractor billed for inadequate concrete work and overstated the amount of work completed on payment invoices...

OSHA Issues Fines Against a Corporation for Knowingly Exposing Workers to Injuries

Posted on September 13, 2010
The Occupational Safety and Health Administration (OSHA) fined Whitesell Corporation over three million dollars and cited the corporation for 72 safety and health violations after a worker was seriously injured in an Alabama factory. According to the OSHA news release on September 1, ?Whitesell willfully tampered with the safety mechanisms of its hydraulic forging presses at its Tuscambia plant to speed up production, resulting in the amputation of a worker?s hand...

An Unlicensed Contractor Can?t Bring Suit to Enforce a Contract Over $30,000

Posted on September 13, 2010
The South Carolina Supreme Court held in W & N Constr. Co. v. Williams that the contract between an unlicensed general contractor and owner was void and unenforceable under South Carolina law. 322 S.C. 448, 472 S.E.2d 622 (1996). S.C. Code Ann. § 40-11-10, 40-11-100, and 40-11-290  make it illegal for a general contractor without a license to undertake construction in excess of $30,000...

The Controlling Employer is Liable for OSHA Violations

Posted on September 02, 2010
The Occupational Safety and Health Review Commission recently overturned its 2007 decision in Summit and announced that a nonexposed, controlling employer on a multiemployer worksite is liable for Occupational Safety and Health Administration (?OSHA?) violations...

Court Affirms Decision for Subcontractor in Construction Defect Case

Posted on September 02, 2010
On July 12, a California appellate court upheld summary judgment for a subcontractor in a condo defect case.  The court found that the condo association and general contractor failed to identify the subcontractor?s involvement in any of the alleged construction defects, which included decay, water intrusion, and mold growth...

Arbitration Agreement Only Exempts Enumerated Issues

Posted on August 27, 2010
On July 15, A Michigan appellate court determined that since the parties? arbitration agreement did not specifically exempt the issue of rescission of the purchase contract, that issue is arbitrable.  Meneghel v. Mondrian Properties Weston Downs, LLC , No...

Strict Liability Statute Does Not Apply to Contractors

Posted on August 26, 2010
The court in Fields v. J. Haynes Waters Builders held that contractors are not subject to strict liability for construction damages. 376 S.C. 545, 658 S.E.2d 80 (2008). In Fields, subsequent homeowners filed suit against the homebuilder for damages related to moisture intrusion in their home...

A Gain in Residential Construction is on the Horizon

Posted on August 21, 2010
Good news for those in the residential construction industry, a modest increase in housing construction is predicted. Check out this article from The Sun newspaper.

New OSHA Requirements for Crane Operators

Posted on August 20, 2010
According to new Occupational Safety and Health Administration regulations, crane operators will be required to undergo third party certification in an effort to increase jobsite safety and save lives.  The rule will take effect on November 8, 2010; however, the third party certification requirement will not take effect for another four years due to the limited availability of OSHA-accredited training facilities...

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