Gravel2Gavel Construction & Real Estate Law Blog

Evidently, there is an app for everything. Construction Simulator 2014 may just have the answers you need? Gigaom’s Games for the Weekend explains that Construction Simulator 2014 “is a simulation game where you inherit your family’s construction company. Unfortunately do not know much about the family business and need to get up to speed quickly in order to make enough money to expand.”

According to Gigaom, the player starts out owning a deposit tipper for removing waste materials from construction sites, a small excavator for filling the tipper with waste material, a small flatbed truck for hauling and a forklift for loading; apparently the app has 14 different vehicles in all. Outside of town there is a factory, gravel pit and sawmill and, in town, there is a builder’s merchant where you pick up the material necessary for various types of construction, a harbor by the sea and your business. As the player takes on jobs, the player earns money that can be spent on additional equipment. The larger the equipment, the more money the player earns. If the play is willing, the player can provide the company with a cash infusion.

No, I haven’t played Construction Simulator 2014, but for $2.99, as recommended by Gigaom, I just might put on my hard hat, roll up my sleeves, and get to work this weekend because it sounds like loads of fun!

Additional Resource: Gigaom; Pillsbury’s Social Media & Games Law Blog

Photo: OiMax, Taken Aug. 17, 2006 – Creative Commons

January 8, 2014, Judge Jon S. Tigar, U.S. District Court for the Northern District of California, in Cordy v. USS-Posco Industries, et al., 2014 BL 4209, N.D. Cal., No. 3:12-cv-00553, granted preliminary approval of the amended settlement agreement between approximately 700 steelworkers and their employer for $3.5 million to settle claims that the company failed to pay its hourly employees for, among other things, time spent donning and doffing protective gear and denying them meal and rest periods. The amended settlement agreement also provides for injunctive relief, including requiring the employer to confirm that it is “routinely maintaining records of the actual hours worked by its employees” and that “employee wage statements contain all information required under California law.”

Pittsburg, California Plant Steelworkers’ Claims

The February 2012 complaint alleges causes of action for violations of California’s Labor Code, the California Industrial Welfare Commission Wage Orders and California’s Unfair Business Practices Act. According to the complaint, the employer allegedly failed to pay non-exempt hourly employees statutorily mandated wages for time spent (1) swiping-in using an electronic card system, (2) donning and doffing protective equipment and (3) communicating with workers from the previous shift regarding incidents, problems, etc. at the plant during the previous shift. It also alleged that the employer denied workers bonafide off-duty meal and rest periods and, in addition, that it did not provide the workers with timely and accurately itemized wage statements.

The Settlement Fund

Of the total settlement fund, (1) $3,480,379 is designated as structured settlement payments to class members, with an initial deposit of $19,621 due within 5 business days of the court’s preliminary approval order; (2) sub-class representatives Carl Cordy and Donald Jones may receive up to $8,000 and $1,500, respectively, as enhancement awards, according to an addendum to the agreement; (3) $33,333 is allocated to resolve the steelworkers’ Private Attorney General Act (PAGA) claims, with 75% of this amount payable to California’s Labor & Workforce Development Agency and the remainder to be distributed to the sub-classes. Judge Tigar, approving the amended settlement, confirmed his belief that the average award will vary depending on which sub-class a steelworker belongs too, but generally will fall between $984 and $5,300. The Legal Aid Society-Employment Law Center is designated as the sole cy pres recipient. In addition, class counsel is set to receive no more than 33% of the total settlement fund.

Judge Tigar: The Settlement Is “Fair, Adequate, And Reasonable”

After rejecting the original settlement agreement last August, conditionally certifying four sub-classes, Judge Tigar concluded that the amended settlement meets the “fair, adequate, and reasonable” standard in that it now calculates awards based on the nature of the alleged injuries, rather than the previous proposition of awarding settlement funds based solely on the number of weeks each employee worked at the Pittsburg, California plant, even if the person worked just one shift a week. “While class settlements need not treat all members precisely equally, the parties’ effort to tailor relief based on individual class members’ circumstances is substantially fairer than the previous proposal,” Judge Tigar wrote.

Additional Source: Cordy v. USS-Posco Industries, et al Docket; Department of Labor, Summary of the Major Laws of the Department of Labor

Photo: Richard, Taken on Oct. 19, 2012 (Steelworker riding steel beam, Frankford El Construction, 1913) – Creative Commons

The recent decision by the Texas Supreme Court in Ewing Constr. Co., Inc. v. Amerisure Ins. Co., No. 12-0661, 2014 WL 185035 (Tex. Jan. 17, 2014), has insureds in Texas and throughout the country breathing a sigh of relief. The decision confirms the limited scope of the Texas Supreme Court’s earlier decision in Gilbert Texas Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010), and makes clear that the contractual liability exclusion in general liability policies does not preclude coverage where an insured contractually undertakes to perform its work in a good and workmanlike manner.

Ewing Construction Company served as the general contractor to renovate and build additions to a school in Corpus Christi, Texas, which work included the construction of tennis courts. Shortly after the tennis courts were completed, they began to flake, crumble and crack, rendering them unusable. Ewing was sued by the school district that hired it for breach of contract and negligence.

Ewing tendered the suit to its liability insurer, who denied coverage. The insurer argued that the claims, which were all tied to Ewing’s breach of contract for failure to perform its work in a good and workmanlike manner, were precluded by the contractual liability exclusion. The district court, relying in large part on Gilbert, 247 S.W.3d 118, agreed with the insurer. The district court explained that Gilbert “stands for the proposition that the contractual liability exclusion applies when an insured has entered into a contract and, by doing so, has assumed liability for its own performance under that contract.” Ewing Constr. Co. v. Amerisure Ins. Co., 814 F. Supp.2d 739, 746-48 (S.D. Tex. 2011).

The case of Gilbert involved the construction of a light rail system for the Dallas Rapid Transit Authority (“DART”), with Gilbert Texas Construction serving as the general contractor. The contract between Gilbert and DART required Gilbert to protect adjacent property, including property of a third party, and to repair any damage to that property resulting from a failure to comply with the requirements of the contract or a failure to exercise reasonable care in performing the work. Heavy rains during construction caused flooding to a building adjacent to the work site. The building’s owner, RTR, sued Gilbert for, among other claims, breach of contract as a third-party beneficiary of Gilbert’s contract with DART. After motions for summary judgment, only RTR’s claim for breach of contract remained.

Gilbert then settled with RTR and sought indemnification from its liability insurer. Gilbert’s general liability insurer denied Gilbert’s request based on the contractual liability exclusion. Agreeing with the insurer’s denial of coverage, the Texas Supreme Court explained:

The obligation to repair or pay for damage to RTR’s property “resulting from a failure to comply with the requirements of this contract” extends beyond Gilbert’s obligations under general law and incorporates contractual standards to which Gilbert obligated itself. The trial court granted summary judgment on all RTR’s theories of liability other than breach of contract, so Gilbert’s only potential liability remaining in the lawsuit was liability in excess of what it had under general law principles. Thus, RTR’s breach of contract claim was founded on an obligation or liability contractually assumed by Gilbert within the meaning of the policy exclusion.

Gilbert Texas Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 127 (Tex. 2010).

The Texas Supreme Court found that the facts in Ewing were different from those in Gilbert. The court explained that Ewing’s agreement to construct the tennis courts in a good and workmanlike manner did not enlarge Ewing’s obligations beyond any general common-law duty Ewing already had. By contrast, the obligation assumed by Gilbert – to protect adjacent property and to repair or pay for damage to property of third parties “resulting from a failure to comply with the requirements of this contract” – did enlarge and extend beyond Gilbert’s obligations under general law. Ewing, 2014 WL 185035 at *6.

In short, the court held that the contractual liability exclusion applies only where the “insured has assumed a liability for damages that exceeds the liability it would have under general law.” Id. The court concluded “that a general contractor who agrees to perform its construction work in a good and workmanlike manner, without more, does not enlarge its duty to exercise ordinary care in fulfilling its contract, thus it does not ‘assume liability’ for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion.” Id. at *7.