Under Construction - December 2014


Letter from the Editor

Welcome to the final issue of Under Construction for 2014. The year has brought many interesting changes to the construction industry. As it comes to a close, we reflect on some notable 2014 case law and legislation that impacted the construction and design industry operating in the Snell & Wilmer footprint throughout the Western United States.

Arizona starts off this edition with a discussion from Nicole Sornsin regarding a few recent cases involving bonds, mechanic’s liens, eminent domain and the Registrar of Contractors Recovery Fund, as well as a look at some significant jury verdicts and recent legislation that will impact your industry in the State of Arizona. Craig McPike then discusses the new Arizona Prime Contracting Tax Reform and the implications it will have on the construction industry with the prime contracting transaction privilege tax.

Jerry Morales’ article describes how NLRB Associate General Counsel, Barry J. Kearny, discussed the litigation currently before the NLRB on the joint employer issue. The General Counsel of the NLRB urged the Board to adopt a new standard and construe employer status broadly under labor law, a change that would significantly expand the entities that may be liable for unfair labor practices. With a decision still pending, it is predicted that the board will issue its decision soon.

Moving west, we take a look at a few cases from California. Jeff Singletary and Lindsay Martínez analyze a group of cases that involved liability for owners, developers, contractors, subcontractors, suppliers and design professionals. They also look at some pertinent statutes, codes and regulations for 2014 and moving into 2015. Lyndsey Torp then discusses an opinion published in September entitled Moorefield Construction Inc. v. Interevest Mortgage Investment Company, et al., where the California Court of Appeal held an original contractor can contractually waive or impair the lien rights of its subcontractors.

Flying over the mountains to Colorado, Dan Frost and Sarah Mead write about some hot button issues in Colorado construction including a measure, not passed by the Legislature, intended to roll back provisions of the Construction Defect Action Reform Act, which has resulted in declining condominium projects. Dan and Sarah discuss the arguments both for and against such a measure.

Heading back west to the Silver State, Robin Perkins, Bryan Gragg and Nathan Kanute discuss a few decisions from the Nevada Supreme Court this year, most notably Byrd Underground, LLC v. Angaur, LLC. The decision focused on whether placement of fill materials and grading constituted “construction of a work of improvement” for purposes of a lien priority determination under NRS 108.225.

We wrap things up with a stop in Utah where a Utah Supreme Court decision has opened the door for creative legal arguments in construction defect cases. Elisabeth McOmber discusses developing issues in Utah construction defect litigation based on the Davencourt at Pilgrim’s Landing Homeowners’ Association case. Included in her assessment is a look at competing issues and arguments involving privity, the statute of repose and equitable tolling, as well as breach of fiduciary duty.

Finally, we are pleased to announce that Snell & Wilmer has been recognized for the fourth consecutive year as a National Tier 1 firm in Construction Litigation in the 2015 edition of “Best Law Firms” by U.S. News Media Group and Best Lawyers®. The 2015 rankings are based on the highest number of participating firms and highest number of client ballots on record. Over 17,000 attorneys provided almost 600,000 law firm assessments and almost 7,500 clients provided more than 40,000 evaluations.

The honor of being recognized as a Tier 1 firm in Construction Litigation follows the news that 123 of Snell & Wilmer’s attorneys, across 67 areas of practice, have been selected for inclusion in The Best Lawyers in America© 2015, including seven in the areas of construction law or construction litigation.

As we close out 2014 and welcome 2015, we are grateful for the numerous opportunities to serve our community and our clients. We extend to you, your family and friends joy, peace and prosperity throughout the holiday season and throughout 2015.

Jim Sienicki

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