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CONSTRUCTION DEFECT NEWS

Bert L. Howe & Associates Returns as a Sponsor at the 30th Annual Construction Law Conference in San Antonio

Friday, January 13, 2017 — Don MacGregor - Bert L. Howe & Associates, Inc.

Bert L. Howe & Associates, Inc. is proud to join with the Texas Institute of CLE, and return for the third year as a sponsor and exhibitor at the 30th Annual Construction Law Conference to be held March 2nd & 3rd, 2017 at the La Cantera Resort and Spa in San Antonio.

With offices in San Antonio and Houston serving all of Texas, Bert L. Howe & Associates, Inc. (BHA) offers the experience of over 20 years of service to carriers, defense counsel, and insurance professionals as designated experts in nearly 6,500 cases. BHA’s staff encompasses a broad range of licensed and credentialed experts in the areas of general contracting and specialty trades, as well as architects, and both civil and structural engineers, and has provided services on behalf of developers, general contractors and sub-contractors.

BHA’s experience covers the full range of construction and construction defect litigation, including single and multi-family residential (including high-rise), institutional (schools, hospitals and government buildings), commercial, and industrial claims. BHA specializes in coverage, exposure, premises liability, and delay claim analysis as well.

As the litigation climate in Texas continues to change, and as the number of construction defect and other construction related cases continues to rise, it is becoming more important for contractors and builders to be aggressive in preparing for claims before they are made, and in defending against those claims once they are filed. Since 1993, Bert L. Howe & Associates has been an industry leader in providing construction consulting services, and has been a trusted partner with builders and insurance carriers, both large and small, across the Western and Southern United States. Here in Texas, we have been providing construction defect and construction-claims related forensic expert services for the past decade with a proven track record of successful results. To-date, we have participated in the successful defense of claims involving thousands homes here in Texas alone.

For those of you planning on attending the conference, or those who may know someone who will be, we encourage you to stop by the BHA booth and we welcome the opportunity to discuss further the broad range of services provided by BHA.

For your convenience, here is a link to the information page for the 30th Annual Construction Law Conference: https://www.clesolutions.com/store.aspx?categoryid=2

Reprinted courtesy of Don MacGregor, Bert L. Howe & Associates, Inc.

Mr. MacGregor may be contacted at dmac@berthowe.com

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Insurer Must Defend Where Possible Continuing Property Damage Occurred

Friday, January 13, 2017 — Tred R. Eyerly - Insurance Law Hawaii

The California Court of Appeal overturned the trial court's issuance of summary judgment based upon the possibility of continuing property damage during the insurer's policy period. Tidwell Enters. v. Fin. Pac. Ins. Co., 2016 Cal. App. LEXIS 1038 (Cal. Ct. App. Nov. 29, 2016).

Financial Pacific insured Greg Tidwell, Tidwell Enterprises, Inc. and Tidwell Enterprises Fireplace Division (Tidwell) under CGL policies issued between March 2003 and March 2010. In 2006 or 2007, Tidwell installed a fireplace in a home. On November 11, 2011, 20 months after the end of the last policy period of Financial Pacific's coverage, the home owned by Kendall Fox, was damaged by fire. Fox was insured by State Farm. State Farm's attorney advised Tidwell of the fire, and Tidwell forwarded the information to Financial Pacific.

State Farm hired an investigator who reported that the fire was caused by the installation of an "unlisted shroud at the top of the chimney chase". This prevented the fireplace from drafting properly, resulting in overheating of the fireplace and heat transfer to the surround wood framing members. This resulted in the ignition of the framing members at the sides, top and bottom of the fireplace. State Farm sent the report to Financial Pacific.

Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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BHA at the 10th Annual Construction Law Institute, Orlando

Friday, January 13, 2017 — Don MacGregor - Bert L. Howe & Associates, Inc.

Bert L. Howe & Associates, Inc. is once again proud to be partnering with the Florida Bar Continuing Legal Education Committee and the Construction Law Committee of the Florida Bar Real Property, Probate and Trust Law Section, as a sponsor and exhibitor at the 10th Annual Construction Law Institute to be held March 16th, 17th & 18th, 2017 at the JW Marriott Orlando Grande Lakes in Orlando.

With offices in Miami serving all of Florida, Bert L. Howe & Associates, Inc. (BHA) offers the experience of over 20 years of service to carriers, defense counsel, and insurance professionals as designated experts in nearly 6,500 cases. BHA’s staff encompasses a broad range of licensed and credentialed experts in the areas of general contracting and specialty trades, as well as architects, and both civil and structural engineers, and has provided services on behalf of developers, general contractors and sub-contractors.

BHA’s experience covers the full range of construction and construction defect litigation, including single and multi-family residential (including high-rise), institutional (schools, hospitals and government buildings), commercial, and industrial claims. BHA specializes in coverage, exposure, premises liability, and delay claim analysis as well.

As the litigation climate in Florida continues to change, and as the number of construction defect and other construction related cases continues to rise, it is becoming more important for contractors and builders here to be aggressive in preparing for claims before they are made, and in defending against those claims once they are filed. Since 1993, Bert L. Howe & Associates has been an industry leader in providing construction consulting services, and has been a trusted partner with builders and insurance carriers, both large and small, across the Western and Southern United States. Here in Florida, we have been providing construction defect and construction-claims related forensic expert services for the past decade with a proven track record of successful results.

For those of you planning on attending the conference, or those who may know someone who will be, we encourage you to stop by the BHA booth and we welcome the opportunity to discuss further the broad range of services provided by BHA.

For your convenience, when registration information is made available, a link to the 10th Annual Construction Law Institute should be available here: http://www.rpptl.org/

Reprinted courtesy of Don MacGregor, Bert L. Howe & Associates, Inc.

Mr. MacGregor may be contacted at dmac@berthowe.com

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EB-5 Immigrant Investor Program Offers Boost To P3s

January 13, 2017 — Duane Craig - Construction Informer

The controversial EB-5 Immigrant Investor Program enjoys bipartisan support in the U.S. Congress, and potentially offers solutions for the country’s aging infrastructure. When used to fund public private partnerships these foreign investments offer a pool of low interest, long-term funding that doesn’t have to clear bank hurdles.

But, foreign investment from the EB-5 Immigrant Investor Program has to create jobs in America, and one aspect of this program almost guarantees that construction jobs will count.

Mr. Craig may be contacted at dtcraig@constructioninformer.com

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Contractors Request and Pay For Untested Builders Risk Exclusions

January 13, 2017 — Scott Van Voorhis - Engineering News-Record

Until recently, the list of what would be covered or excluded in a typical builders risk insurance policy was often a cut-and-dried affair. But these days, many construction and engineering companies are seeking a more flexible range of exclusions that had been used mostly on energy and industrial projects.

ENR staff may be contacted at ENR.com@bnpmedia.com

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Panel Finds Canadian Softwood Lumber Imports Harm U.S. Producers

January 13, 2017 — Tom Ichniowski - Engineering News-Record

U.S. softwood lumber producers have won a round in their trade battle against Canada, as the U.S. International Trade Commission determined there is a “reasonable indication” that shipments from Canada have harmed the domestic industry.

Mr. Ichniowski may be contacted at ichniowskit@enr.com

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RPPTL’s Construction Law Institute Seminar

January 13, 2017 — Beverley BevenFlorez-CDJ STAFF

This March, the Real Property, Probate & Trust Law Section of the Florida Bar (RPPTL) will be presenting the next Construction Law Institute program at the JW Marriott Orlando Grande Lakes hotel.

March 16th-18th, 2017
JW Marriott Orlando Grande Lakes
4040 Central Florida Parkway
Orlando, Florida 32837
(407) 206-2300

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No Coverage for Construction Defects Under Arkansas Law

Friday, January 13, 2017 — Tred R. Eyerly - Insurance Law Hawaii

The federal district court found there was no coverage for the insured contractor under Arkansas law when sued for construction defects by two homeowners. Auto-Owners Ins. Co. v. Hambuchen Constr., 2016 U.S. Dist. LEXIS 160364 (W.D. Ark. Nov. 18, 2016).

In one case, the Pierces hired Hambuchen, the insured contractor for the construction of a new home, which was completed in 2006. Two years after moving in, the Pierces experienced water leaks at various locations inside the home and the basement flooded. Water damage rendered the back deck unstable. In 2010 and 2011, Hambuchen made repairs to stop leaks on the decks, but in 2012 the back deck again showed signs of water damage. The Pierces sued, and Auto-Owners provided a defense under a reservation of rights.

In the second case, the Lessmanns hired Hambuchen in 2005 as general contractor to construct their new home. Following completion of the home, the Lessmanns complained about scratched windows. The Lessmanns filed suit against Hambuchen for breach of the construction contract by failing to build their home in a workmanlike manner. The Lessmanns filed suit in May 2009. Auto-Owners was not aware of the suit until 2015 when it received notice that the Lessmanns had filed an amended complaint. The Lessmans' suit went to trial and Hambuchen prevailed.

Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Significant Issues Test Applies to Fraudulent Claims to Determine Attorney’s Fees

Friday, January 13, 2017 — David Adelstein - Florida Construction Legal Updates

Construction lienors need to appreciate on the frontend that recovering statutory attorney’s fees in a construction lien action is NOT automatic—far from it. This is because the prevailing party for purposes of attorney’s fees in a construction lien action is determined by the “significant issues test,” a subjective test with no bright line standards based on who the trial court finds prevailed on the significant issues in the case. If you want to talk about the subjective and convoluted nature of recovering attorney’s fees in a construction lien action under the significant issues test, a recent opinion by the Fourth District Court of Appeal is unfortunately another nail in the coffin.

In Newman v. Guerra, 2017 WL 33702 (Fla. 4th DCA 2017), a contractor recorded a construction lien on a residential renovation project and filed a lien foreclosure lawsuit. The homeowner countersued the contractor and asserted a fraudulent lien claim pursuant to Florida Statute s. 713.31. An evidentiary hearing was held on whether the lien was a fraudulent lien and the trial court held that the lien was fraudulent (therefore unenforceable) because it included amounts that were not lienable under the law. The remaining claims including both parties’ breach of contract claims proceeded to trial. There was no attorney’s fees provision in the contract. At the conclusion of the trial, the court found that the contractor was entitled a monetary judgment on its breach of contract claim.

Reprinted courtesy of David Adelstein, Florida Construction Legal Updates

Mr. Adelstein may be contacted at dadelstein@gmail.com

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Oregon Supreme Court Confirms Broad Duty to Defend

Friday, January 13, 2017 — Theresa A. Guertin - Saxe Doernberger & Vita, P.C. Blog

The Supreme Court of Oregon issued a decision at the end of last year which perfectly illustrates the lengths to which a court may go to grant a contractor’s claim for defense from its insurer in a construction defect suit. In West Hills Development Co. v. Chartis Claims, Inc.,1 the Court held that a subcontractor’s insurer had a duty to defend a general contractor as an additional insured because the allegations of a homeowner’s association’s complaint could be interpreted to fall within the ambit of coverage provided under the policy—despite the fact that the policy only provided ongoing operations coverage, and despite the fact that the subcontractor was never mentioned in the complaint. The decision is favorable to policyholders but also provides an important lesson: that contractors may avoid additional insured disputes if those contractors have solid contractual insurance requirements for both ongoing and completed operations risks.

Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita, P.C.

Ms. Guertin may be contacted at tag@sdvlaw.com

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CONSTRUCTION DEFECT NEWS

Hawaii Federal District Court Again Rejects Coverage for Faulty Workmanship

Friday, January 13, 2017 — Tred R. Eyerly - Insurance Law Hawaii

The federal district court for the District of Hawaii continued its longstanding pattern of finding no coverage for claims based upon construction defects. Am. Auto. Ins. Co. v. Haw. Nut & Bolt, 2016 U.S. Dist. LEXIS 174243 (D. Haw. Dec. 16, 2016).

Safeway filed a complaint against Hawaii Nut & Bolt (HNB). The complaint involved issues pertaining to the construction of the roof deck at a Safeway store. HNB was a subcontractor hired to supply a coating system on the roof of the store to make it waterproof. The product was manufactured by VersaFlex. After the store opened, there were water leaks from the roof. This disrupted business operations and caused damage to Safeway's business and reputation. HNB tendered the claims to its CGL carrier, Fireman's Fund Insurance Corporation (FFIC). FFIC defended the underlying lawsuit for six years under a reservation of rights.

Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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White and Williams Elects Four Lawyers to Partnership, Promotes Six Associates to Counsel

Friday, January 13, 2017 — White and Williams LLP

White and Williams is pleased to announce the election of Edward Beitz, Justin Fortescue, Jennifer Santangelo and Amy Vulpio to the partnership and the promotion of Paul Briganti, Joshua Galante, Dana Spring Monzo, George Morrison, Craig O’Neill and Steven Urgo from associate to counsel.

The newly elected partners and promoted counsel represent the wide array of practices that White and Williams offers its clients, including bankruptcy, corporate, finance, healthcare, insurance coverage, labor and employment, real estate and reinsurance. These lawyers have earned their elevations based on their contributions to the firm and their practices.

“We are thrilled to elect these four lawyers to the partnership and promote six associates to counsel. These promotions are representative of the breadth of services and deep bench that we have to offer at White and Williams,” said Patti Santelle, Managing Partner. “The election of our new partners and promotion of our counsel is a reflection of their success and dedication as well as the continued health of the firm.”

Reprinted courtesy of White and Williams LLP
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Steven Cvitanovic to Present at NASBP Virtual Seminar

Friday, January 13, 2017 — Steven M. Cvitanovic - Haight Brown & Bonesteel LLP

Partner Steven Cvitanovic will speak at the National Association of Surety Bond Producers (NASBP) Virtual Seminar on Tuesday, January 31 at 11:00 A.M. PST. The presentation will provide a brief overview of risks covered by traditional insurance products, and will then expand on significant exposures arising from a contractors operations/contracts that are not covered by traditional insurance. The session will provide examples of these non-traditional risks and strategies to mitigate them.

Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel LLP

Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com

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January 2017 Update: Apple 2 Campus Construction

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CONSTRUCTION DEFECT NEWS

2017 California Employment Law Update

Friday, January 13, 2017 — Evelin Y. Bailey - California Construction Law Blog

Below are some of the new laws going into effect this year that affect the construction industry. Unless otherwise noted, the laws go into effect on January 1, 2017.

Public Works and Prevailing Wages

You can read more about the new laws—AB 326, AB 1926 and SB 954—relating to public works and prevailing wages in an earlier blog post.

Employment Contracts

Choice of Forum and Choice of Law. Under SB 1241, an employer cannot require an employee who primarily works and resides in California to agree to file a lawsuit or bring a claim in another state when the claim arises in California. This is usually referred to as the choice of forum clause.

Reprinted courtesy of Evelin Y. Bailey, Wendel Rosen Black & Dean LLP

Ms. Bailey may be contacted at ebailey@wendel.com

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Design Professional Needs a License to be Sued for Professional Negligence

Friday, January 13, 2017 — David Adelstein - Florida Construction Legal Updates

“With regard to claims for professional negligence, the Florida Supreme Court has explained that ‘where the negligent party is a professional, the law imposes a duty to perform the requested services in accordance with the standard of care used by similar professionals in the community under similar circumstances.’” Sunset Beach Investments, LLC v. Kimley-Horn and Associates, 42 Fla. L. Weekly D130a (Fla. 4th DCA 2017) quoting Moransais v. Heathman, 744 So.2d 973, 975-76 (Fla. 1999).

When it comes to professional negligence, two things are important:

1) the person being sued is a professional under the law (person has special education, training, experience, and skill) and
2) the standard of care for that professional (e.g, licensed, professional engineer).

In a recent case, an engineering intern—not, a licensed, professional engineer–was sued for professional negligence. The Fourth District Court of Appeal held that an engineering intern is not a person that can be sued for professional negligence, unlike a licensed, professional engineer. Sunset Beach Investments, supra.

Reprinted courtesy of David Adelstein, Florida Construction Legal Updates

Mr. Adelstein may be contacted at dadelstein@gmail.com

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New Megablimp to Deliver to Remote Alaskan Construction Sites

Friday, January 13, 2017 — Ryan W. Sternoff - Ahlers & Cressman PLLC Blog

For nearly 20 years, Lockheed Martin has been working on developing a “Hybrid Airship” that may transform the ability to construct facilities in remote project locations.[i]

On September 13, 2016, the Daily Journal of Commerce reported that the first of these “Hybrid Airships,” which can land in snow, ice, gravel, and water, are set to deliver from a facility operated by PRL Logistics in Kenai, Alaska, beginning in 2019.[ii] PRL will be operating the blimps in partnership with UK-based Straightline Aviation who placed the first order for the airships this year. According to PRL, the hope is that the airships will provide low cost solutions for moving freight in Alaska, where runways and roads are not always available. The helium-lifted behemoth blimps have space for 47,000 pounds of cargo and 18 passengers and cost about $40 million dollars.

Reprinted courtesy of Ryan W. Sternoff, Ahlers & Cressman PLLC

Mr. Sternoff may be contacted at rsternoff@ac-lawyers.com

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Deleted Emails Cost Company $3M in Sanctions

Friday, January 13, 2017 — Grace V. Hebbel - Saxe Doernberger & Vita, P.C. Blog

Recently, the Federal District Court for the District of Delaware imposed $3 million in punitive sanctions in order to redress harms caused by a company’s bad faith deletion of tens of thousands of emails during the course of litigation. The sanctions were ordered pursuant to Federal Rule of Civil Procedure 37, which was amended effective December 1, 2015 to permit sanctions for the failure to preserve electronically stored information (“ESI”).

In GN Netcom, Inc. v. Plantronics, Inc.,1 the plaintiff, GN Netcom, brought an antitrust suit alleging that the defendant company, Plantronics, interfered with distributors to stop GN Netcom from marketing its product. Upon receipt of GN Netcom’s demand letter, Plantronics issued a litigation hold and began providing training sessions to its employees to ensure compliance. Upon filing of GN Netcom’s suit, Plantronics issued an updated litigation hold and continued training sessions.

Reprinted courtesy of Grace V. Hebbel, Saxe Doernberger & Vita, P.C.

Ms. Hebbel may be contacted at gvh@sdvlaw.com

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Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

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