Articles Posted in Construction Generally

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On October 29, the U.S. Department of Transportation (DOT) published a final rule in the Federal Register which amends and revises the environmental National Environmental Policy Act (NEPA) procedures rules employed by the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA). There is a renewed interest in transportation infrastructure projects, and recent legislation is intended to accelerate required environmental reviews.

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On October 26, in the case of Day v. Johns Hopkins Health Sys. Corp., divided panel of the U.S. Court of Appeals for the Fourth Circuit affirmed the District Court’s ruling that the common law “Witness Litigation Privilege” protects an expert witness in a Black Lung Benefits Act benefits proceeding against civil claims that allege a federal RICO violation and Maryland state law claims for fraud, tortious interference, negligent misrepresentation and unjust enrichment attended the testimony of the expert witness.

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In Ohio Supreme Court Finds Subcontractor’s Faulty Workmanship Causing Damage to the Work Itself Not Covered under CGL Policy, my colleague Matt Stockwell discusses a decision last week by the Ohio Supreme Court, in Ohio Northern University v. Charles Construction Services, Inc., that unfortunately narrowed the scope of insurance coverage for a subcontractor’s faulty workmanship. The Court held that a subcontractor’s faulty workmanship in a construction defect case is not an “occurrence” under standard-form commercial general liability (CGL) policies in Ohio.

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In Hurricane Florence: Is Your Company Prepared for a Disaster?, Pillsbury’s Joe Jean, Tamara Bruno, and Janine Stanisz discuss how important it is for companies to understand how their insurance policies cover the company’s risk in the event of an unexpected or catastrophic loss. Having the correct insurance policies in place is only the first step.

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It was already the case that in order to offer to install California residential solar energy systems, a contractor must be licensed by the California Contractors State License Board (CSLB) and must hold an appropriate specialty classification. Under AB 1070 enacted late last year (Chapter 662, Statutes of 2017), special consumer protections are being deployed for the benefit of homeowners. Those protections are steadily rolling out.

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In The Fiscal Year 2019 NDAA Imposes Government-Wide Limitations on the Use of Lowest-Price Technically Acceptable Procurements, Pillsbury attorneys Dick Oliver and Aaron Ralph are optimistic that contractors will soon have additional legal authority to demonstrate to civilian agencies that a best value tradeoff process should be employed.

  • Congress’ trend of limiting the use of the much-derided lowest price, technically acceptable (LPTA) procurement process continues.
  • Many of the Department of Defense’s (DoD) limitations on the use of LPTA process will be extended to civilian agencies.
  • The recently enacted John S. McCain National Defense Authorization  Act (NDAA) requires that the Federal Acquisition Regulation be updated by December 11, 2018, to incorporate these limitations.

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On July 25, the U.S. Court of Appeals for the Third Circuit decided the case of Adorers of the Blood of Christ v. FERC, and affirmed the order of the U.S. District Court for the Eastern District of Pennsylvania dismissing the complaint.  The Court of Appeals held that

A Religious Freedom Restoration Act (RFRA)” cause of action, brought by invoking a court’s general federal question jurisdiction, does not abrogate or provide an exception to a specific and exclusive jurisdictional provision prescribing a particular procedure for judicial review of an agency’s action.”

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Maryland’s “Disclosing Sexual Harassment in the Workplace Act” goes into effect on October 1, 2018, creating new potential liability and obligations for employers. Our colleagues Jean Kuei and David Grossman recently published their Client Alert titled Maryland Employers Face New Sexual Harassment Disclosure Obligations, identifying key takeaways from the new law:

  • The Act invalidates any employment contract or policy that waives an employee’s right to sue in court for sexual harassment or retaliation.
  • The Act also requires employers with more than 50 employees to submit a report detailing settlements of any sexual harassment claims.
  • Employers may not take any adverse action against an employee who refuses to sign an agreement that requires mandatory arbitration of sexual harassment claims.

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On July 10, the U.S. Court of Appeals for the Ninth Circuit issued its much anticipated and a pro-contractor ruling in MP Nexlevel of California, Inc. v. CVIN LLC. The appeal arose from a dispute over the scope of a California specialty contractor’s license and, more particular, involved whether the subcontractor’s performance of certain work was outside the scope of its license constituting a breach of contract and resulting in the contractor not being entitled to payment for its work (Cal. Bus. & Prof. Code § 7031(a)). In an unpublished opinion, the Ninth Circuit reversed and remanded the matter, finding that “Nexlevel’s work here was ‘incidental and supplemental’ to the installation of these fiberoptic systems,” as contemplated by Cal. Code Regs. Tit. 16, § 831.

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On July 6, the U.S. Court of Appeals for the D.C. Circuit decided the case of Sierra Club and Natural Resources Defense Council v. EPA. Senior Judge Sentelle, writing for a unanimous panel, mostly granted the environmental petitioners petition for review of an Environmental Protection Agency (EPA) Clean Air Act (CAA) rule, establishing National Emissions Standards for Hazardous Air Pollutants (NESHAP) hazardous air pollutant emissions limits for Brick and Structural Clay Products Manufacturing and Clay Ceramics Manufacturing. These rules were initially promulgated in 2003, only to be vacated later by the D.C. Circuit.

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