Can a contractor enforce an administrative costs provisions imposed against a subcontractor for a default? Is the administrative cost provision an unenforceable penalty instead of an enforceable liquidated damages provision? In Erie Ins. Co. v. Winter Constr. Co., 393 S.C. 455, 713 S.E.2d 318 (Ct. App. 2011), the contract stated that: If SUBCONTRACTOR fails to cure an event of default within seventy-two (72) hours after receipt of written notice of default by WINTER to SUBCONTRACTOR, WINTER may, without prejudice to any of [its] other rights or remedies, terminate the employment of SUBCONTRACTOR and [ . . .] WINTER shall be entitled to charge all reasonable costs incurred in this regard (including attorney[‘s] fees) plus an allowance for administrative burden equal to fifteen percent (15%) to the account of SUBCONTRACTOR.            The Subcontractor defaulted and its surety, made a demand against the Contractor, Winter Construction Co., Inc., for the Subcontractor’s outstanding contract…       Read More

Construction and engineering firms have an opportunity for new disability accommodation projects under new rules. An upcoming March 15, 2012 deadline for the 2010 ADA Standards imposes on covered hoteliers and hospitality employers additional accessibility standards  for newly constructed recreational facilities such as pools and spas built after March 15, 2012. The new standards on access to such facilities require either adding a pool lift or renovating the swimming pool and spa entirely depending on the size of the pool: · Pools less than 300 feet must have at least one means of access with either a sloped entry or a lift. · Pools 300 feet or longer must have two means of access with the primary means of access either a sloped entry or a lift. · A wading pool must have a sloped entry. Specific requirements for pool lifts under the ADA 2010 Standards specify seat height and width, foot and arm…       Read More

The Georgia Court of Appeals recently decided Estate of Mack Pitts, et. al. v. City of Atlanta, et. al., 312 Ga. App. 599 (2011). This decision demonstrates that general contractors have a duty to (1) monitor their subcontractor’s compliance with contractual insurance compliance; and (2) ensure that any construct contract contains well-defined third-party beneficiary terms. In Pitts, a laborer on a construction project at Hartsfield-Jackson International Airport was killed when he was struck by a vehicle driven by an employee of another subcontractor. Mr. Pitts’ Estate brought a wrongful death action against the subcontractor and obtained a verdict in excess of its liability insurance limits. The Estate then turned to the project owner, the City of Atlanta, and other contractors to recover the excess verdict. The claim was that Pitts was a third-party beneficiary to a contract provision that required all subcontractors to have at least $10,000,000 in liability insurance…       Read More

Monday April 2, 2012 marks the first day of the cap filing season for Fiscal Year (FY) 2013 H-1B petitions.  The United States Citizenship and Immigration Services (USCIS) will begin receiving  H-1B petitions on that date.   However, the earliest an H-1B cap subject employee may start his employment in FY 2013 is October 1, 2012.   At this time, there is no telling when the standard H-1B cap of 65,000 will be reached for FY 2013. To be safe, employers should file their cap-subject H-1B petitions as soon as possible based upon their hiring needs for the upcoming fiscal year. While the cap was met only a few months ago for FY 2012, it is widely anticipated that FY 2013 will see a much higher volume of H-1B cap petitions in the early going, as evidenced by the speed in which the H-1B cap numbers were reached towards the end of…       Read More

Each construction project is fraught with risk exposure arising from complicated rules and regulations, insurance coverage, compliance and liability for failures, damage and injury.  Our attorneys at Hall Booth Smith are experienced with the issues from project design to punch out and performance.  We represent individuals, corporations, insurance carriers and government entities involved in construction disputes.

A California Appeals Court confirms in Espinoza v. Orange County an employee’s disability harassment claim based in part on a co-employee’s off-work blog.   Plaintiff filed a complaint against the county government defendant for discrimination based on disability, harassment based on disability, retaliation, and failing to prevent harassment.   When plaintiff was born his right hand had no fingers or thumb but contained only two small stubs. He was generally able to function although he could not perform some tasks such as holding a knife or fork with that hand. He was self-conscious about people seeing it and often kept his hand in his pocket.   An anonymous blog posted, among other things, “I will give anyone 100 bucks if you get a picture of the claw. Just take your hand out of your pocket already!!!!!!!!!!!!!!”   The employer was aware of the blog, tried to investigate whether county computers…       Read More

The U.S. Department of State (DOS) expects the Employment Based Second Preference (EB-2) category for India and China (mainland) to retrogress to August 2007 by May or June of 2012.  This news comes from Charles Oppenheim, Chief of the Visa Control and Reporting Division at DOS, who spoke on upcoming green card visa number availability at the American Immigration Lawyers Association (AILA) Midwest Regional Conference in Chicago on March 16, 2012.  One of Mr. Oppenheim’s responsibilities is to determine the monthly cut-off dates on the Visa Bulletin, which is the monthly announcement of immigrant visa availability made by DOS. Based on this news, it is critical that any qualified Indian or Chinese (mainland) employees with a current priority date, has their adjustment of status (I-485) application submitted to U.S. Citizenship and Immigration Services (USCIS) as soon as possible.  Currently, the EB-2 priority date is listed as May 2010 for individuals…       Read More

The Illegal Immigration Reform and Enforcement Act (IIREA) of 2011 (HB 87) was signed into law by Georgia Governor Nathan Deal on May 13, 2011.  Among other things, this Act requires private businesses in the state of Georgia with 11 or more employees to utilize E-Verify to confirm employment eligibility status of newly hired employees beginning January 1, 2012.  The implementation date of the new guidelines are being carried out in phases, correlating to the private employer’s total number of employees, which are defined as those employees working 35 hours or more as of January 1, 2012: 1. Private employers in Georgia with 500 or more employees must use E-Verify for new hires on or before January 1, 2012. 2. Private employers in Georgia with 100 or more employees but fewer than 500 must use E-Verify for new hires on or before July 1, 2012. 3. Private employers in Georgia with…       Read More

The IPAB (Independent Payment Advisory Board) has been at the heart of much of the health care reform rhetoric coming from both parties in Congress, and it has featured prominently in the run up to the November presidential election.  The IPAB has been described by the Obama Administration and Democratic supporters as a “backstop” to prevent escalation of federal healthcare costs.   It has been cited by opponents as support for the assertion that the healthcare reform package mandates rationed care or even so-called “death panels”.  Opponents have strongly criticized the lack of accountability for the IPAB, which would be an appointed not elected body.  The IPAB has not had any practical impact at this point, but it looms in the future.  The Congressional Budget Office (“CBO”) has recently projected a $3.1 Billion price tag for the IPAB.   The Administration and the Democratic Congressional leadership has been insisting that the Republicans…       Read More

In Marmet Health Care Center, Inc. v. Brown, the U.S. Supreme Court overruled the West Virginia Supreme Court’s refusal to enforce a pre-dispute arbitration agreement governed by the Federal Arbitration Act (FAA) based upon a state public policy prohibiting arbitration of claims alleging personal injury or wrongful death against nursing homes. “When the state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.” Mr. Brown brought a negligence lawsuit when a family member died while a patient of the elder care facility. Brown’s contract with the facility required that all disputes (other than collection cases) be resolved through binding arbitration before the American Arbitration Association. The trial judge dismissed the case on the ground that Brown was bound by the agreement to arbitrate. When  Brown appealed, the W.Va. Supreme Court reversed and refused to enforce the…       Read More