Our Legal Advisory Committee (LAC) is made up of an exceptional mix of legal firms, in-house counsel, and forensic accountants, that works to understand the impact of new laws, regulations, and judicial decisions. During the fourth and final quarter of 2024, our Legal Advisory Committee (LAC) held three meetings where two case law reviews, three MCLE presentations, and one staff presentation were provided. We provided presentations on construction insurance law, workplace violence prevention, and cybersecurity requirements.
We urge all member companies, particularly those with general counsel or legal professionals on staff, to join the LAC to network and address pertinent construction industry issues. Legal professionals of our contractor or specialty contractor members can now join the LAC for FREE! You must be a member of AGC of California as a contractor or specialty contractor to qualify. If you are interested in joining or learning more about the LAC, contact Mary Alyssa Rancier, Policy Manager, at rancierm@agc-ca-org.
October
MCLE: “Identification and Management of Professional Liability Insurance Claims in Construction”
The session provided a survey of common professional liability insurance issues that create coverage issues for contractors. I focused on several specific considerations that are relatively basic and helpful for anyone connected to construction project disputes to be aware of. Because many of the disputes with professional liability insurance revolve around the timing of when claims are made against contractors and then reported by contractors to their insurers, the goal was to help members of the committee understand what situations are worthy of reporting, how that reporting works, and the significance of the timing requirements in the policy for doing so.
Will Bennett, Saxe & Doernberger & Vita, P.C.
Will Bennett is a career insurance coverage attorney and represents policyholders in all aspects of insurance and risk transfer. He maintains an active litigation practice focused on complex insurance recovery actions across the country, having recovered more than $250 million on behalf of his clients. In addition to his bar admissions in California, Connecticut, and New York, Will is often admitted pro hac vice in other state and federal court jurisdictions. He has handled cases from the initial stages of strategy all the way through trial to verdict as lead counsel and appeal. His experience with the construction industry includes serving as coverage counsel for commercial, civil, and residential construction and real estate companies in disputes that have involved a wide array of subject matter, from construction catastrophe and defect to pollution liability.
Staff Presentation: “Public Agency Termination for Convenience”
Chris Smith, AGC of California
November
MCLE: “California’s Workplace Violence Prevention Law and Recent Cases of Interest”
The November 12, 2024, MCLE presentation to the AGC of California reviewed California Senate Bill (SB) 553, which requires California employers to develop and implement a Workplace Violence Prevention Plan (“WVPP”), to prevent and respond to on-the-job threats of violence starting on July 1, 2024. The WVPL Act is codified as California Labor Code Section 6401.9. Specifically, the MCLE covered which employers must comply with SB 533 (i.e., nearly all employers with limited exceptions) and outlined the necessary elements for a compliant WVPP, which must be in writing; easily accessible at all times to all employees (and their unions for unionized employers; in effect at all times and in all work areas; and be specific to the hazards and corrective measures for each work area and operation. Lastly, the MCLE covered changes to California’s Code of Civil Procedure related to workplace TROs and discussed recent cases involving violence in the workplace.
Sean Broderick, Simpson, Garrity, Innes & Jacuzzi, PC
Mr. Broderick focuses his practice on employment litigation in state and federal courts. Mr. Broderick represents private and public sector employers in a wide range of labor and employment law matters, including claims involving discrimination, harassment, retaliation, whistleblower, wrongful termination, wages, breach of contract, unfair labor practices and issues concerning union representation. He has also defended employers in matters involving wage and hour class and PAGA representative actions. Mr. Broderick regularly advises employers regarding employment personnel matters, including employee misconduct, leaves of absence, employee classifications, reductions in force, use of independent contractors, employee mobility, and other issues pertaining to hiring, promotion, compensation, termination and unfair competition.
Mr. Broderick has defended businesses in matters involving trade secret misappropriation, breach of fiduciary duty, professional liability, infringement of copyrights, patents and trademarks, unfair business practices, and other business-related torts.
Mr. Broderick advises clients on information governance and e-discovery issues. Mr. Broderick has presented MCLE courses on e-discovery best practices, including managing large-scale e-discovery document reviews using automated predictive coding technology. Mr. Broderick has been a guest lecturer at the UC Berkeley Extension Employment Law Course for HR professionals and has been engaged to speak for a variety of prominent employer and legal organizations, including the National Business Institute (NBI).
Case Law Review: “American Building Innovation LP v. Balfour Beatty Construction, LLC (2024) 104 Cal.App.5th 954.”
This case involved a subcontractor’s claim for payment from a general contractor for work done on a public works project. The general contractor, Balfour Beatty Construction, LLC, moved for summary judgment under Business and Professions Code (“B&P”) section 7031 after learning that the subcontractor’s license had expired because the subcontractor failed to pay outstanding premiums on its worker’s compensation policy. The subcontractor was granted an exemption after misrepresenting to the California State License Board that it had no employees. Before the hearing on Balfour Beatty’s summary judgment motion, the subcontractor sought to retroactively reinstate its license under B&P section 7025, claiming that its lapse in licensure was due to circumstances beyond its “control.” The trial court ruled for Balfour Beatty and the subcontractor appealed.
The California Court of Appeal held that the subcontractor was not entitled to retroactive reinstatement of its license because its failure to make outstanding premium payments and obtain alternative coverage were not circumstances beyond its “control” under B&P section 7125. As a result, the subcontractor was denied payment of roughly $700,000 for work done and was ordered to pay over $1.5 million in attorney’s fees.
This case demonstrates that courts will not tolerate a contractor’s knowing failure to maintain valid workers compensation insurance, especially when they are untruthful about whether they have employees. To protect their rights to payment, prudent contractors should resolve all licensing issues immediately upon notice of the issue. The Court also makes clear that retroactive reinstatement is permitted only if licensure lapses due to circumstances outside the contractor’s control, which does not include a contractor’s failure to make outstanding premium payments or obtain replacement coverage timely. Thus, even if a contractor disputes a premium charge, they should pay it under protest or obtain coverage from an alternative carrier before continuing any work on a project.
Nathan Chow, Smith Currie Oles LLP
Nathan Chow is a first-year associate at Smith Currie Oles LLP. He focuses his practice on construction litigation and handles a range of issues, including delay claims, mechanics liens, and contract disputes. Nathan also assists in the discovery process, running technology assisted review of electronic databases to collect and produce information necessary for various matters.
December
MCLE: “What California Construction Lawyers Need to Know About CMMC and Other Federal Cybersecurity Requirements”
Timothy Wieroniey from Rogers, Joseph O’Donnell PC spoke about how the recently finalized U.S. Department of Defense’s Cybersecurity Maturity Model Certification (CMMC) rule will impact the construction industry. His presentation, “What California Construction Lawyers Need to Know About CMMC and Other Federal Cybersecurity Requirements,” addressed the legal and business implications of CMMC for California construction lawyers and outlined strategies for timely, efficient and affordable compliance.
Tim Wieroniey, Rogers Joseph O’Donnell
Timothy Wieroniey is an associate at Rogers, Joseph O’Donnell PC and a member of the firm’s Construction, Cybersecurity and Privacy and Government Contracts practice groups. His clients include national construction companies, government contractors and members of the United States Defense Industrial Base.
Before joining Rogers Joseph O’Donnell, Timothy served as a law clerk to the Honorable Zachary Noah Somers of the United States Court of Federal Claims. He also served as a legal intern for the American Fuel & Petrochemical Manufacturers Association. Prior to attending law school, Timothy worked as an environmental safety specialist for four and a half years. He earned his J.D. from George Mason University’s Antonin Scalia Law School and his Bachelor of Science in environmental science and policy from the University of Maryland at College Park.
Case Law Review: “California Capital Insurance Company v Corey Micheal Hoen”
In this case, the California Supreme Court considered the timing of moving for relief from a void default judgment under Code of Civil Procedure § 473(d). The statue provides no express time limit in which to do so. As California jurisprudence developed, case law established that the maximum reasonable time in which to move for relief from a void judgment was two years because courts reasoned by analogy that the two-year limit in Code of Civil Procedure § 473.5 should also apply to relief under § 473(d). The Supreme Court disagreed with the two-year rule and held that what constitutes a reasonable time for relief under § 473(d) depends on the particular facts and circumstances of the case. The court further held that a party can seek relief under § 473(d) in the original action rather than having to initiate a new lawsuit for equitable relief from a void judgment.
Jennifer Needs, SMTD Law
Jennifer A. Needs has diverse legal experience, but she focuses her practice in the areas of construction, surety, real estate, and lending law. Ms. Needs has experience in all phases of litigation in state and federal courts throughout California. She has represented and advised clients in matters involving contracts, business torts, creditor’s rights, employment law, intellectual property, unlawful detainer, collections, and post-judgment enforcement. While in law school, Ms. Needs worked as a research assistant to a European Supreme Court Justice and served on three volumes of the Texas International Law Journal, ultimately serving as the Chief Article and Notes Editor. Ms. Needs attended college as a National Merit Scholar and studied abroad in Spain while in college.
