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CONSTRUCTION DEFECT NEWS

Homeowner Protection Act of 2007 Not Just for Individual Homeowners Anymore?

Wednesday, March 22, 2017 — Maggie Stewart - Colorado Construction Litigation

On March 9, 2017, the Colorado Court of Appeals announced its decision in Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Company, No. 16CA0101, 2017 COA 31 (Colo. App. Mar. 9, 2017). As a matter of first impression, the Court evaluated whether a senior living facility constitutes “residential property” protected by the Homeowner Protection Act of 2007 ("HPA") provision of the Construction Defect Reform Act (CDARA).

In 2007, Plaintiff Broomfield entered into a contract with Defendant Brinkmann for construction of a senior assisted and independent living facility. The contract contained warranty provisions related to the quality of construction and cautioned that Plaintiff’s failure to provide Defendant with prompt notice of any defects would result in waiver of any claim for breach. The contract also limited Defendant Brinkmann’s liability by identifying three separate accrual provisions that would determine the time period in which Plaintiff could bring a claim. The project was completed in 2009.

Reprinted courtesy of Maggie Stewart, Higgins, Hopkins, McLain & Roswell, LLC

Ms. Stewart may be contacted at stewart@hhmrlaw.com

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Call Me Maybe? . . . Don’t Waive Your Rights Under the Right to Repair Act’s Prelitigation Procedures

Wednesday, March 22, 2017 — Garret Murai – California Construction Law Blog

We’ve written before about the Right to Repair Act (Civil Code Sections 895 et seq.). The Act, also commonly known as SB 800 after the bill that established it, applies to newly constructed residential units including single-family homes and condominiums (but not condominium conversions) sold after January 1, 2003.

Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP

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

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Local Government’s Claims on Developer Bonds Dismissed for Failure to Pursue Administrative Remedies

Wednesday, March 22, 2017 — David R. Cook - Autry, Hanrahan, Hall & Cook, LLP

The Georgia Court of Appeals recently affirmed a trial court’s dismissal of a county’s claim on developer bonds based on its failure to exhaust administrative remedies. Douglas County v. Hamilton State Bank, — Ga. App. –, A16A1708 (Mar. 16, 2017). Specifically, because the bank was under FDIC receivership, the County was required to pursue administrative remedies under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (the “Act”).

Reprinted courtesy of David R. Cook, Autry, Hanrahan, Hall & Cook, LLP

Mr. Cook may be contacted at cook@ahclaw.com

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How To Fix Oroville Dam

March 22, 2017 — Henry W. Burke - Engineering News-Record

On Sunday, Feb. 12, California officials ordered the immediate, mandatory evacuation of 188,000 residents from towns below the Oroville Dam. Two days later, when federal and state officials deemed the dam safe, the evacuation order was rescinded, and people were allowed to return to their homes. It isn't often that hundreds of thousands of people in the U.S. have to leave their homes because of worries about a catastrophic structural failure.

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

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Insurers Fine-Tune Professional Liability Premiums

March 22, 2017 — Richard Korman - Engineerings News-Record

Recent claims are playing a larger role in the way insurance underwriters analyze a particular risk in coverage for engineers and architects, says broker Ames & Gough.

Mr. Korman may be contacted at kormanr@enr.com

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U.S. Homebuilder Confidence Rises to Highest Since June 2005

March 22, 2017 — Austin Weinstein - Bloomberg

Confidence among U.S. homebuilders is the strongest since the mid-2000s housing boom as sales prospects improve despite rising mortgage rates, according to data Wednesday from the National Association of Home Builders/Wells Fargo.

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2017 West Coast Casualty Construction Defect Seminar

March 22, 2017 — Beverley BevenFlorez-CDJ STAFF

The 24th annual West Coast Casualty Construction Defect seminar returns to the Disneyland Hotel this May. The seminar includes keynotes, panels, and breakout sessions on industry-relevant topics, as well as receptions that provide networking opportunities. Approximately 1500 people attend each year from the legal, insurance, builder, contractor, and subcontractor industries as well as others.

May 18-19, 2017
Disneyland Hotel
1150 West Magic Way
Anaheim, CA 92802

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Connecticut Federal District Court Again Finds "Collapse" Provisions Ambiguous

Wednesday, March 22, 2017 — Tred R. Eyerly – Insurance Law Hawaii

The Federal District Court for the District of Connecticut has issued several decisions of late finding coverage for collapse despite the building not being reduced to rubble. The latest decision in this series is Metsack v. Liberty Mutual Fire Ins. Co., 2017 U.S. App. LEXIS 24062 (D. Conn. Feb. 21, 2017).

The Metsack's property was insured by Allstate under policies issued from June 27, 1991 to September 9, 2009. From September 2009 to present, Liberty Mutual issued property policies to the insureds. Mr. Metsack built the insureds' home in 1992. The concrete basement walls used concrete supplied by JJ Mottes Company.

Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii

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

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Public Contract Code 9204 – A New Mandatory Claims Process for Contractors and Subcontractors – and a Possible Trap for the Unwary

Wednesday, March 22, 2017 — Alex R. Baghdassarian & Joseph S. Sestay – Peckar & Abramson, P.C.

New California legislation affecting public works contractors was adopted pursuant to Assembly Bill 626, sponsored by the Union Trade Contractors Association of California and endorsed by various trade and contractor associations including the AGC. AB 626, which was intended to assist contractors in presenting claims against public agencies, affords new opportunities, and some potential pitfalls, to contractors and subcontractors submitting claims to public owners.

The legislation, codified at California Public Contract Code (PCC) section 9204, is effective for public works contracts entered into after January 1, 2017. All public entities (including the CSUS and the UC system), other than certain Departments of the State (CalTrans, High-Speed Rail Authority, Water Resources, Parks and Recreation, Corrections and Rehabilitation, General Services and the Military) are bound by the provisions of PCC Section 9204. PCC 9204 establishes a mandatory pre-litigation process for all claims by contractors on a public works project. It is an attempt to address the reluctance of public owners to promptly and fairly negotiate change orders on projects, putting some teeth to the mandate of existing law under PCC Section 7104, which precludes public owners from shifting to the contractor the risk of addressing differing subsurface and/or concealed hazardous site conditions.

Reprinted courtesy of Alex R. Baghdassarian, Peckar & Abramson, P.C. and Joseph S. Sestay, Peckar & Abramson, P.C.

Mr. Baghdassarian may be contacted at abaghdassarian@pecklaw.com
Mr. Sestay may be contacted at jsestay@pecklaw.com


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Kahana & Feld P.C. Enhances Client Offerings, Expands Litigation Firm Leadership

Wednesday, March 22, 2017 — Kahana & Feld, P.C.

SANTA ANA, Calif., March 9, 2017 – Celebrating 10 successful years of practice, Managing Partner Amir M. Kahana, Esq. , of Kahana & Feld P.C. (formally Kahana Law), is pleased to announce he has added as name partner Jason Daniel Feld, Esq., expanding client offerings to include insurance defense and bolstering its construction defect and real estate law practice.

Feld joins the AV Preeminent firm that for the past decade has become known for its prowess in general business litigation matters, including cases involving employment, construction, real estate and intellectual property law. The firm is home to a group of proven trial attorneys who are among Southern California’s top rated counsel.

Feld brings 18 years of experience, with his practice focusing on defending homebuilders, contractors and developers in Arizona, Texas and California. He primarily chooses to represent smaller, family-owned and operated clients, providing the unique opportunity to also assist with overall best practices and risk prevention. In addition, Feld serves on several prominent insurance carrier panels, allowing him to cultivate valuable relationships with the builder and contactor community. A resident of Tustin Ranch, Feld received his juris doctor cum laude from Whittier Law School and a bachelor’s degree from University of Houston.

“Jason’s breadth of experience, leadership and work ethic are qualities I have admired throughout the many years of our friendship. He embodies the integrity and admirable character that are at the core of our firm’s fabric,” said Kahana, a resident of Irvine. “I am thrilled to have Jason join forces with our firm as we enter our second decade and are poised for significant growth. Our clients will benefit from our expanded areas of practice, allowing us to provide counsel and litigation support in a variety of areas.”

Under Kahana’s leadership, the firm has become known for holding its client relationships in the highest regard while providing premier quality legal services and sound risk assessment at a reasonable cost. With integrity always coming first, the firm’s record of success extends well beyond the office as each associate is proudly involved in his or her community, donating time and resources to a variety of worthy community organizations.

“I feel honored to join Amir and this talented and energetic firm,” said Feld. “I feel fortunate to have found a new home with partners and associates who share the same values and commitment to serving the community. I look forward to helping grow the firm in the years ahead.”

About Kahana & Feld, P.C.
Kahana & Feld, P. C. focuses on general business litigation and insurance defense, with particular emphasis on employment, real estate, construction defect and intellectual property litigation. The AV Preeminent firm is led by attorneys who have been named among Southern California’s Top Rated. The firm was founded with the goal of providing high-quality legal services at fair and reasonable rates. The firm believes that what defines attorneys is not their billing rates, but their record of success, and Kahana & Feld’s track record speaks for itself. For more information, please visit: http://www.kahanafeld.com



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CONSTRUCTION DEFECT NEWS

Blog: Congress Strikes a Blow to President Obama’s “Fair Pay and Safe Workplaces” Executive Order 13673

Wednesday, March 22, 2017 — John P. Ahlers - Ahlers & Cressman PLLC

On October 25, 2016, the Federal Acquisition Regulatory Council (FAR Council) and the U.S. Department of Labor implemented former President Obama’s Executive Order 13673: “Fair Pay and Safe Workplaces” rules. The rules became effective on October 25, 2016 and fundamentally altered the way federal contractors and subcontractors will need to handle and resolve employment and labor claims, as well as compliance issues involving their entire workforce. The final rules can also result in otherwise-capable companies being “blacklisted” and effectively barred from federal contracts and subcontracts based on labor and employment law violations related or unrelated to prior or current federal contract performance. The centerpiece of the new regulatory scheme was the new disclosure and responsibility requirements. Contractors and subcontractors needed to disclose all “labor law decisions” that they had during the three years (prior to bid submission) as part of the process of applying for a new federal contract or subcontract. If a contractor or subcontractor has too many “labor law decisions” to report or the few it has are too severe, pervasive, repeated, or willful in the eyes of the government “experts,” the company could be deemed “non-responsible” and denied a contract.

Reprinted courtesy of John P. Ahlers, Ahlers & Cressman PLLC

Mr. Ahlers may be contacted at jahlers@ac-lawyers.com

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Floating Crane on Job in NYC's East River Has a Storied Past of Cold War Intrigue

Wednesday, March 22, 2017 — Nadine M. Post – Engineering News-Record

The complex maneuver of lifting heavy prefabricated modules out of New York City's East River to build a university laboratory took careful planning and the work of one particular floating crane with a complicated past.

Reprinted courtesy of Nadine M. Post, Engineering News-Record

Ms. Post may be contacted at postn@enr.com

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Distinguishing Hawaii Law, New Jersey Finds Anti-Assignment Clause Ineffective

Wednesday, March 22, 2017 — Tred R. Eyerly – Insurance Law Hawaii

The New Jersey Supreme Court found that an anti-assignment provision could not be applied to bar a post-loss claim assignment. Givaudan Fragrances Corp. v. Aetna Cas. & Sur. Co., 2017 N.J. LEXIS 121 (N.J. Feb. 1, 2017). In reaching its decision, the court distinguished a decision from the Hawaii Supreme Court enforcing consent-to-assignment clauses and failing to recognize any post-loss exception to such clauses. See Del Monte Fresh Produce (Hawaii), Inc. v. Fireman's Fund Ins. Co., 183 P.3d 734 (Haw. 2007).

Plaintiff Givaudan Fragrances Corporation (Fragrances) was sued for environmental contamination at a manufacturing site. A related corporate entity had operated the facility from the 1960s to 1990. Fragrances sought coverage under policies issued to its predecessor. The predecessor attempted to assign to Fragrances post-loss rights under the policies. The insurers resisted, claiming the predecessor was the named insured, not Fragrances, and that the insurers did not consent to an assignment of the predecessor's policies.

Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii

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

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Construction of Star Wars-Themed Lands Continue

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CONSTRUCTION DEFECT NEWS

Communications between Counsel and PR Firm Hired by Counsel Held Discoverable

Wednesday, March 22, 2017 — Kevin R. Crisp, David W. Evans, & Sarah A. Marsey – Haight Brown & Bonesteel LLP

Counsel handling cases involving newsworthy facts and litigation often hire public relations (“PR”) consultants. In Nicholas Behunin v. The Superior Court of Los Angeles County, 2017 DJDAR 2405 (No. B272225 March 14, 2017) the California Court of Appeal, Second District, denied a petition for writ of mandate concerning a trial court discovery order holding that communications between a plaintiff’s attorney and a public relations firm counsel hired for the purpose of creating a website for the Plaintiff were discoverable, despite claims that such communications were protected from disclosure by attorney-client privilege.

Plaintiff sued Defendants -- (the) Charles Schwab and his son Michael Schwab -- over an unsuccessful real estate investment. Plaintiff’s attorneys hired a public relations consultant to create a website (www.chuck-you.com) that sought to link the Schwabs with the late Indonesian dictator Suharto’s family. The court succinctly described the web site as “a social media campaign to induce the Schwabs to settle the case.”

Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Kevin R. Crisp, David W. Evans and Sarah A. Marsey

Mr. Crisp may be contacted at kcrisp@hbblaw.com
Mr. Evans may be contacted at devans@hbblaw.com
Ms. Marsey may be contacted at smarsey@hbblaw.com



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JD Supra’s 2017 Reader’s Choice Awards

Wednesday, March 22, 2017 — Garret Murai – California Construction Law Blog

JD Supra, one of the world’s leading content distribution companies for the legal industry, announced its Readers’ Choice Awards for 2017 earlier this week. We were honored to be among a group of 200 authors selected from over 40,000 who published legal news, commentary and analysis on legal issues of importance to the clients we serve.

Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP

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

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Want to Stay Up on Your Mechanic’s Lien Deadlines? Write a Letter or Two

Wednesday, March 22, 2017 — Christopher G. Hill – Construction Law Musings

90 days. 150 days. 6 months. 30 days. Do these numbers sound familiar? If you read Construction Law Musings regularly, they should be. These are various deadlines relating to the recording and enforcement of mechanic’s liens in Virginia.

90 days from your last work performed (or from the last date of the last month of work in the correct circumstances) sets the outside limit on when a construction company can record a lien on a construction project. 150 days is the “look back” period for what work’s value can be included in that lien. 6 months is the statute of limitations for the filing of an enforcement suit. Finally, 30 days amount of time after your start of work within which you, as a construction professional, must notify a mechanic’s lien agent of your presence on a residential project. Of course, there are always nuances to these rules that need to be taken into account, preferably with the help of your friendly neighborhood construction attorney, before deciding how to proceed in this very picky and “form over function” area of construction law.

Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill

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

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Preserving your Rights to Secure Payment on Construction Projects (with Examples)

Wednesday, March 22, 2017 — David Adelstein – Florida Construction Legal Updates

All participants across the construction industry should understand what efforts they should take to maximize and collateralize payment. No one wants to work for free and, certainly, no one in the construction industry wants to work without ensuring there is some mechanism to recover payment in the event they remain unpaid. Being proactive and knowledgeable can go a long way when it comes to recovering your money.

Your Contract – It starts with the contract. You should understand those risks that are allocated to you and those that are allocated to another party. And, you should understand the contractual mechanism to resolve claims and disputes and whether your contract has a prevailing party attorney’s fees provision. In addition to contractual rights, there are tools for you to maximize your collection efforts.

Reprinted courtesy of David Adelstein, Florida Construction Legal Updates

Mr. Adelstein may be contacted at dadelstein@gmail.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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