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Recently, the Superior Court of Pennsylvania tempered that hope with limitations of how far strict liability defenses can extend.

Industry Standard and Sole Negligence Defenses Can’t Fix a Defect

Monday, June 14, 2021 — Lian Skaf - The Subrogation Strategist

Strict products liability cases have been the subject of much fluctuation in the Pennsylvania courts over the last few years. Utilizing hope created by the courts in recent strict liability cases, defendants have tried to revive defenses based on meeting industry standards and the plaintiff’s contributory negligence. Recently, the Superior Court of Pennsylvania tempered that hope with limitations of how far strict liability defenses can extend.

In Sullivan v. Werner Co., No. 3086 EDA 2019, 2021 Pa. Super. LEXIS 210, an appellate panel of the Superior Court reviewed the lower court’s decision to exclude evidence of industry standards and of the plaintiff’s negligence in a trial that resulted in a $2.5 million verdict for the plaintiff. Upholding the decision of the lower court, the court found that the proffered evidence was within the discretion of the court to exclude.

In Sullivan, Michael Sullivan (Sullivan) was working as a union carpenter at a renovation project for a local school. He and his apprentice were installing exterior sheathing to the outdoor walls. In order to install the sheathing, Sullivan had to use a scaffold. He put together a new SRS-72 scaffold manufactured by Werner Company (Werner) that his foreman bought at Lowe’s Companies, Inc. (Lowe’s) and used the scaffold during the course of his work. While on the scaffold, Sullivan fell through and crashed to the ground. He suffered permanent injuries as a result of the incident.

Reprinted courtesy of Lian Skaf, White and Williams LLP

Mr. Skaf may be contacted at skafl@whiteandwilliams.com

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The court held that even though the plaintiff attempted to assert allegations of negligence against the defendant municipality, Connecticut’s highway defect statute was the plaintiff’s exclusive remedy.

Conn. Appellate Court Overturns Jury Verdict, Holding Plaintiff’s Sole Remedy for Injuries Arising From Open Manhole Was State’s Highway Defect Statute

Monday, June 14, 2021 — Christy Jachimowski - Lewis Brisbois

Section 13a-149 of the Connecticut General Statutes, commonly known as Connecticut’s highway defect statute, provides that claims arising from injuries or damages to people or property resulting from a defective road or bridge can be asserted against a party responsible for maintaining that road or bridge. Conn. Gen. Stat. §13a-149. The statute also extends to sidewalks and further provides that written notice of an alleged injury must be given to a defendant municipality within ninety days of the injury.

Recently, in Dobie v. City of New Haven, 2021 Conn. App. LEXIS 162 (App. Ct. May 1, 2021), the Connecticut Appellate Court overturned the trial court’s denial of a municipal defendant’s post-trial motion to dismiss. The court held that even though the plaintiff attempted to assert allegations of negligence against the defendant municipality, Connecticut’s highway defect statute was the plaintiff’s exclusive remedy. Since the plaintiff failed to meet the requisite notice requirements, pursuant to the statute, the Appellate Court held that the trial court erred in denying the municipality’s motion to dismiss for lack of subject matter jurisdiction.

The Underlying Case

In February of 2013, Plaintiff William Dobie filed suit against the City of New Haven alleging injuries and damages as a result of the negligence of a City of New Haven snowplow operator. Dobie’s claims arose from an incident that occurred on January 21, 2011, in which he was driving behind the City snowplow driver, who was in the process of plowing snow from a municipal street located in New Haven, Connecticut. As the defendant employee was operating his snowplow, he knocked off a manhole cover, causing Dobie’s vehicle to drive over the open manhole. Dobie claimed personal injuries as a result of his vehicle dropping into the open manhole, including injuries to his jaw.

Reprinted courtesy of Christy Jachimowski, Lewis Brisbois

Ms. Jachimowski may be contacted at Christy.Jachimowski@lewisbrisbois.com

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Law books on shelf

We’re beginning to see a trend.

1st District Joins 2nd District Court of Appeals and Holds that One-Year SOL Applies to Disgorgement Claims

Monday, June 14, 2021 — Garret Murai - California Construction Law Blog

We’re beginning to see a trend.

This past year, the 2nd District Court of Appeals, in Eisenberg Village of the Los Angeles Jewish Home for the Aging v. Suffolk Construction Company, 53 Cal.App.5th 1201 (2020), held for the first time that a one (1) year statute of limitations period beginning upon substantial completion of a project applies to disgorgement claims under Business and Professions Code section 7031. In San Francisco CDC LLC v. Webcor Construction L.P., the 1st District Court of Appeals became the second Court of Appeals in the state to hold that a one (1) year statute of limitations beginning upon completion or cessation of work on a project applies to disgorgement claims under Business and Professions Code section 7031.

The San Francisco CDC LLC Case
The Defect Action
In September 2005, San Francisco CDC LLC entered into a $144 million construction contract with Webcor Construction, Inc. doing business as Webcor Builders to build the InterContinental Hotel in San Francisco, California.

Reprinted courtesy of Garret Murai, Nomos LLP

Mr. Murai may be contacted at gmurai@nomosllp.com

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Construction Financial Management in the COVID Economy

June 14, 2021 — Cybele Tamulonis - Construction Executive

As the nation races to vaccinate more than 320 million citizens, construction firms have been busy catching up on backlog, keeping workers safe and grappling with the complexities of construction finance during a pandemic.

The economy has bounced back much quicker than expected; however, there are still plenty of reasons for construction firms to remain vigilant and continue to implement strict financial controls as the recovery unfolds. The challenges of the past year have sharpened the business habits of contractors and financial professionals alike across the United States—proving that consistent success is achievable—if contractors are committed to seeing past the boom and taking adequate measures to streamline their bidding, contract and finance practices. Resisting bidding on unprofitable work, keeping careful records through automation and paying attention to new tax laws are just some of the methods that can ensure a contractor remains profitable for years to come.

Reprinted courtesy of Cybele Tamulonis, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

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Construction Site Injuries: Avoiding and Limiting Liability

June 14, 2021 — Steven Gonzalez & Aaron Cohn - Construction Executive

Workplace injuries on construction sites are common occurrences. For large projects that span multiple years with deca-million dollar budgets, even contractors with the best safety practices can expect dozens of injuries and related incidents to be reported in a given year. Many more incidents will go unreported, either because the incident is not deemed significant enough, or for other reasons, including the immigration status of the injured.

Reprinted courtesy of Steven Gonzalez & Aaron Cohn, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Mr. Gonzalez may be contacted at sgonzalez@wwhgd.com
Mr. Cohn may be contacted at acohn@wwhgd.com

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New York City Pensions to Fund $250 Million Apartment Venture

June 14, 2021 — Oshrat Carmiel - Bloomberg

For New York City’s pension funds, there’s no time like now to invest in new apartments.

The two largest retirement systems -- covering public school teachers and municipal employees -- are teaming up with developer Hudson Cos., to allocate $250 million for construction of middle-income housing in the city and surrounding suburbs, the developer said.

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The 2021 AGC Annual Convention

June 14, 2021 — Beverley BevenFlorez – CDJ Staff

This annual conference includes general sessions, education programs, award ceremonies, and many networking opportunities for its 1500 construction industry attendees. In addition to the program and activities, the convention includes the AGC Expo featuring more than 100 exhibitors.

September 21st-23rd, 2021
Orlando World Center Marriott
8701 World Center Dr
Orlando, FL 32821

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Best Practice Puzzle Piece

For the 2021 survey for the annual U.S. ranking of The Top 50 Construction Law Firms™, Construction Executive’s editorial team reached out to dozens of attorneys at the nation’s best construction law firms to learn how the legal landscape is changing.

The 2021 Top 50 Construction Law Firms™

Monday, June 14, 2021 — Cybele Tamulonis - Construction Executive

Vaccination rates continue to rise, mandates are loosening for returning to work and school, and a $2 trillion infrastructure bill is looming on the horizon, but contractors remain cautious and counseled by the legal experts who thrive in the complex field of construction law.

According to the latest report by the Bureau of Labor Statistics, construction employment numbers did not move much in April despite an increased demand for housing and a recovering economy. Due to continued fallout from the pandemic—and what seems like no end in sight for the rising costs of materials—contractors have been turning to construction law firms to navigate delayed projects, interpret contract language, assist in risk mitigation and ensure the road ahead is paved with understandable and protective clauses.

For the 2021 survey for the annual U.S. ranking of The Top 50 Construction Law Firms™, Construction Executive’s editorial team reached out to dozens of attorneys at the nation’s best construction law firms to learn how the legal landscape is changing, as well as how legal teams are aiding clients with sharpening contract language and pivoting in response to challenges in the wake of the COVID-19 pandemic.

Reprinted courtesy of Cybele Tamulonis, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


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At its meeting on June 17, the Cal OSHA Standards Board is likely to approve a new version of the ETS that incorporates the relevant provisions of the recent CDPH guidance.

Hurry Up and Wait! Cal/OSHA Hits Pause on Emergency Temporary Standards for COVID-19 Prevention

Monday, June 14, 2021 — Michael Studenka & Jasmine Shams - Newmeyer Dillion

Employers scrambling to prepare for the June 15th Reopening announced by Governor Newsom have spent the last week pouring over the revised Emergency Temporary Standards for COVID-19 Prevention (“Revised ETS”) approved by the Cal/OSHA Standards Board on June 3, 2021. After last night’s meeting of the Standards Board, however, it’s time to hit pause.

Last night, the Cal OSHA Standards Board held a specialty meeting to reconsider its Revised ETS in light of the latest guidance on face coverings issued by the California Department of Public Health (“CDPH”) on June 7, 2021. Following a presentation by the CDPH and extensive public comment, the Cal OSHA Standards Board voted unanimously to withdraw the Revised ETS and to take up the issue again at its next scheduled meeting on June 17, 2021. The net result in the interim is that California employers who intend to reopen on June 15 must initially comply with all of the requirements of the Cal/OSHA Standards Board Emergency Temporary Standards for COVID-19 Prevention as originally issued on November 20, 2020, including but not limited to, its social distancing, physical partitioning and mask wearing requirements.

Reprinted courtesy of Michael J. Studenka, Newmeyer Dillion and Jasmine Shams, Newmeyer Dillion
Mr. Studenka may be contacted at michael.studenka@ndlf.com
Ms. Shams may be contacted at jasmine.shams@ndlf.com


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Rules word on side of notebook

The recent changes in masking requirements and COVID-related restrictions have prompted questions and concerns throughout the construction industry.

PSA: Latest Updates from AGC-VA on COVID Rules (UPDATED)

Monday, June 14, 2021 — Christopher G. Hill - Construction Law Musings

The recent changes in masking requirements and COVID-related restrictions have prompted questions and concerns throughout the construction industry. We understand your questions and continue to work closely with the Department of Labor and Industry (DOLI) and the Safety and Health Codes Board.

Here is what we know at this point:

  • The Governor’s second order terminates the state of public emergency as of May 28, 2021. At that point, the DOLI Safety and Health Codes Board will have 2 weeks to meet and decide whether to rescind, modify, or continue the Final Permanent Standard for Prevention of Covid-19. Companies should continue to follow the standard until further notice.
  • UPDATE: At present, the emergency order does not expire before June 30, unless amended or otherwise changed. Therefore, the two-week period to announce a meeting of the SCHB to review the permanent COVID-19 standard does not begin until July 1, though the meeting can occur after the two-week period. AGCVA has joined other groups in pushing for a meeting as soon as possible.
Reprinted courtesy of The Law Office of Christopher G. Hill

Mr. Hill may be contacted at chrisghill@constructionlawva.com

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CONSTRUCTION DEFECT NEWS
Red pencil on Insurance coverage document

Attorney David Adelstein discusses a case where the property insurance policy had a preferred contractor endorsement.

Courts Will Not Rewrite Your Post-Loss Property Insurance Obligations

Monday, June 14, 2021 — David Adelstein - Florida Construction Legal Updates

In the preceding posting, I wrote about making sure you comply with your property insurance policy’s post-loss policy obligations. By failing to comply, you can render your policy ineffective meaning you are forfeiting otherwise valid insurance coverage, which was the situation discussed in the preceding posting. As an insured, you should never want this to occur!

In another case, discussed here, the property insurance policy had a preferred contractor endorsement. This means that instead of paying the insured insurance proceeds, the insurer could perform the repairs with its preferred contractor. Typically, the insured will pay a discount on their premium for this preferred contractor endorsement. The insurer elected to move forward with the repairs based on the preferred contractor endorsement but the insured performed the repairs on his own and then sold the house. By doing this, the appellate court held the insured rendered his policy ineffective by breaching his own policy (and failing to allow this post-loss obligation to take place). The explicit terms of the policy allowed the insurer to perform the repairs instead of paying the insured insurance proceeds. The court could NOT rewrite the post-loss obligations in the policy by requiring the insurer to pay insurance proceeds when the insurer, per the preferred contractor endorsement, elected to perform the repairs.

Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Stadium seats

A brief account of some of the important environmental and administrative law cases recently decided.

A Court-Side Seat: Guam’s CERCLA Claim Allowed, a “Roundup” Verdict Upheld, and Judicial Process Privilege Lost

Monday, June 14, 2021 — Anthony B. Cavender - Gravel2Gavel

This is a brief account of some of the important environmental and administrative law cases recently decided.

THE U.S. SUPREME COURT

BP PLC, et al. v Mayor and City of Baltimore
The issue the court confronted was a procedural matter: Can the defendant energy companies use the federal removal statutes (see 28 USC Section 1442) to remove a state law climate change lawsuit to federal court? Here, a group of energy companies were sued by the mayor and city council of Baltimore in state court, where they alleged that the defendants had concealed the adverse environmental effects of the fossil fuel products they promoted and sold in Baltimore City. Several similar lawsuits have been filed in many state courts, where typically it is alleged that the defendants can be sued on various common law theories. Rather than defend these cases in state court, the defendants have sought to remove these cases to federal court because climate change liability appears to be an issue that should be settled at the federal level. These efforts have been unsuccessful, with most federal trial and appellate courts holding that the reasons cited for removal (oftentimes the federal officer removal statute) have not been persuasive. In this case, both the Maryland federal district court and the U.S. Court of Appeals held they had no jurisdiction to authorize removal, and thus returned the case to the state court. Noting that the U.S. Court of Appeals for the Seventh Circuit ruled that a removal action could be countenanced under Section 1442, thus creating a circuit split, the Supreme Court held that a straightforward reading of the removal statute empowers the reviewing court to examine all theories for removal that a district court has rejected. Consequently, the Court remanded the case to the Fourth Circuit where it can decide, “in the first instance,” whether there actually exist grounds to remove this case to federal court.

Reprinted courtesy of Anthony B. Cavender, Pillsbury

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Can a defendant in a subrogation action assert any claim against the subrogee that it would have against the subrogor?

When an Insurer Proceeds as Subrogee, Defendants Should Not Assert Counterclaims Against the Insured/Subrogor

Monday, June 14, 2021 — Gus Sara - The Subrogation Strategist

In a subrogation action, one party is substituted to the rights and remedies of another with respect to a lawful claim. The substituted party (the subrogee) is legally able to pursue any right or seek any remedy that would be available to the subrogor regarding that claim. But can a defendant in a subrogation action assert any claim against the subrogee that it would have against the subrogor? In Federated Mut. Inc. Co. v. Kosciusko County, No. 3:20-CV-960, 2021 U.S. Dist. Lexis 88735, the United States District Court for the Northern District of Indiana considered whether a defendant could assert counterclaims against the insureds/subrogors in an action filed in the name of their subrogee. The court held that since the insurerds/subrogors were not a party to the action and the defendant could assert the substance of its counterclaim as a defense, the defendant could not file counterclaims against the insureds/subrogors in the insurer’s subrogation action.

Kosciusko County arose from a motor vehicle accident involving a semi-tractor trailer owned by Bellman Oil Company, Inc. (Bellman) and B & B Transport, Inc. (B & B). The accident occurred on a highway in Kosciusko County in October of 2019. The accident caused the semi-tractor trailer containing ethanol fuel to roll over four times and burst into flames. Federated Mutual Insurance Company (FMIC) insured Bellman and B & B for the semi-tractor trailer and issued payments as a result of the accident.

Reprinted courtesy of Gus Sara, White and Williams

Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Reality Check: Bridge Plagued with Construction Problems Finally Opens - NBC 15 WPMI

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Gold stars and circles on black background

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Haight’s Kristian Moriarty Selected for Super Lawyers’ 2021 Southern California Rising Stars

Monday, June 14, 2021 — Kristian B. Moriarty - Haight Brown & Bonesteel LLP

Congratulations to partner Kristian Moriarty who was selected to the Super Lawyers 2021 Southern California Rising Stars list. Each year, no more than 2.5% of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Reprinted courtesy of Kristian B. Moriarty, Haight Brown & Bonesteel LLP

Mr. Moriarty may be contacted at kmoriarty@hbblaw.com

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Businessman holding arms up in triumph

“This team has depth, great experience and a willingness to get the client the best result," a Chambers and Partners Commentator stated.

Hunton Andrews Kurth’s Insurance Recovery Practice, Partners Larry Bracken and Mike Levine Receive Band 1 Honors from Chambers USA in Georgia

Monday, June 14, 2021 — Walter J. Andrews - Hunton Insurance Recovery Blog

The 2021 Chambers and Partners rankings for Georgia insurance recovery practices and lawyers are out and Hunton Andrews Kurth has received top honors. The rankings include Hunton Andrews Kurth’s Insurance Recovery practice and partners Lawrence J. Bracken II and Michael S. Levine, with all receiving Band 1 honors – the organization’s top-tier ranking. “The top-level ranking of our practice in Georgia, and the work that Larry and Mike bring to our clients in Georgia, specifically, is emblematic of the work our team is doing nationwide,” said Insurance Recovery Practice Head, Walter J. Andrews. “The Firm and I could not be more proud,” he added.

Chambers and Partners is an independent research company operating across more than 200 jurisdictions delivering detailed rankings and insight into the world’s leading lawyers. Its rankings are viewed as one of the most credible and reliable industry benchmarks.

Reprinted courtesy of Walter J. Andrews, Hunton Andrews Kurth

Mr. Andrews may be contacted at wandrews@HuntonAK.com

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Construction worker giving key to new tenants

Fast-rising home prices allow a ritzy island to attempt climate adaptations few municipalities can afford.

Palm Beach Billionaires’ Fix for Sinking Megamansions: Build Bigger

Monday, June 14, 2021 — Prashant Gopal & Amanda L. Gordon - Bloomberg

Thomas Peterffy became one of the world’s richest people by mastering risk on Wall Street. Building his Mediterranean-style mansion seven years ago on a vulnerable stretch of Florida’s Palm Beach Island was a matter of seeing the odds clearly once again. The consequences of climate change will play out over decades, and Peterffy is 76 years old.

“I don’t have a care about it at all,” he said over lunch at Mar-a-Lago earlier this year, just down the street from his home. The founder of Interactive Brokers Group has a fortune of more than $21 billion, according to the Bloomberg Billionaires Index.

“If something needs to be done to save it,” he added, “it’s not going to be my problem.”

The town of Palm Beach is busy adapting to the risks of a warming planet, even if there appear to be fewer worriers among the buyers and speculative builders on the island. Some of the lowest-lying properties in the U.S. are seeing the highest-flying prices. The real estate website Zillow estimates the value of Peterffy’s home at $52 million. This year a new nine-bedroom mansion with toes-in-the-sand views sold to financier Scott Shleifer for a record-breaking price in excess of $122 million.

Reprinted courtesy of Prashant Gopal & Amanda L. Gordon, Bloomberg
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Construction worker working with wooden beam

The 1,126-acre site, split into two large sections and spread across three municipalities, is a buzz saw of construction activity.

Former NJ Army Base $2B Makeover is 'Buzzsaw' of Activity

Monday, June 14, 2021 — Tom Stabile - Engineering News-Record

Take a developed property the size of New York City’s Central Park with 5 million sq ft of building area, program in new construction or renovation over 20 years and across three dozen parcels for 1,600 housing units, 300,000 sq ft of civic or government space, 500,000 sq ft for retail and 2 million sq ft of offices, and you have a pretty ambitious undertaking. The $2-billion effort to redevelop Fort Monmouth, a decommissioned former U.S. Army base in the thick of New Jersey’s suburban sprawl, is all kinds of ambitious.

Reprinted courtesy of Tom Stabile, Engineering News-Record

ENR may be contacted at ENR.com@bnpmedia.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

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