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David R. Cook is a partner at the Atlanta-based law firm, AHC Law, where he practices in the firm’s construction law group.

Part II: Key Provisions of School Facility Construction & Design Contracts

Saturday, July 21, 2018 — David R. Cook - Autry, Hall & Cook, LLP

In Part I of this article, published in late April, we discussed the performance risk and time risk involved with construction and design contracts, and in Part II, we will cover cost risk and political risk.

Cost Risk
School budgets are limited for many reasons, and the construction budget is no exception. As a result, contracts should guard against unwarranted cost increases and claims. In the absence of a written change order signed by the appropriate officer, the contract should absolutely prohibit additional compensation for changes in the work. It should forbid claims for all events except those within the school authority’s sole control. Even for permitted claims, the contractor must provide written notice so that the authority might alleviate the problem and control its costs. To encourage the contractor to limit costs and claims, the contract could include a shared-savings clause, which grants an incentive payment for completion within the budget.

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

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

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Man holding contract

The court observed that an entity performing professional services has more than contractual obligations – it has duties to exercise reasonable care in performing its work that are owed to the world at large.

Wisconsin Court Enforces Breach of Contract Exclusion in E&O Policy

Saturday, July 21, 2018 — TLSS Insurance Law Blog

In its recent decision in Crum & Forster Specialty Ins. Co. v. GHD Inc.,2018 U.S. Dist. LEXIS 111827 (E.D. Wisc. July 5, 2018), the United States District Court for the Eastern District of Wisconsin had occasion to consider the application of a breach of contract exclusion in a professional liability policy.

Crum’s insured, DVO, was sued in connection with its contract to construct a biogas converter mechanism. The underlying suit alleged a sole cause of action; namely, breach of contract based on DVO’s failure to have fulfilled its obligations to design the mechanism to specification.

Reprinted courtesy of Traub Lieberman Straus & Shrewsberry LLP

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Business person holding bills

If there is a pre-suit settlement offer on the table, and it is a good faith offer, then that offer can very well come into play to determine whether the party that will the action should be deemed the prevailing party for purposes of attorney’s fees.

Pre-Suit Settlement Offers and Construction Lien Actions

Saturday, July 21, 2018 — David Adelstein - Florida Construction Legal Updates

It is unfortunate, but in certain matters, a construction lien foreclosure action is not actually driven by the principal amount in dispute. Oh no. Rather, it is driven by attorney’s fees. That’s right. Attorney’s fees. This is true even though Florida applies the significant issues test to determine the prevailing party for purposes of attorney’s fees. However, oftentimes the prospect of attorney’s fees is enough for parties to fear that exposure.

There is a 1985 Florida Supreme Court case that I like to cite if applicable, C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So.2d 1177, 1179 (Fla. 1985), that finds, “in order to be a prevailing party entitled to the award of attorney’s fees pursuant to section 713.29 [a construction lien claim], a litigant must have recovered an amount exceeding that which was earlier offered in settlement of the claim.” Accord Sullivan v. Galske, 917 So.2d 412 (Fla. 2d DCA 2006) (explaining that although contractor is receiving a judgment in his favor, he may not be the prevailing party if the homeowner offered to settle prior to the lawsuit for an amount equal to or greater than the award in the judgment).

Reprinted courtesy of David Adelstein, Kirwin Norris

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

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Concerned about Unionization? Show this Post to Your Employees

July 21, 2018 — Wally Zimolong - Supplemental Conditions

The Buffalo News has an article that shows that unionization is not the rainbows and unicorns that organizers promise. The story involves the Ironworkers organizing of a company call Wendt Corp. Over a year ago, Wendt’s employees voted in favor representation by the Ironworkers. But, Wendt and the union still have yet to agree on a contract. As we often tell employees thinking about organizing, voting in favor of the union and receiving the benefit of what the organizers promises are different things. An affirmative vote means only that the employer must bargain in good faith with the union. It does not mean the employer is forced to sign a collective bargaining agreement containing all of the goodies the union promises employees.

Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Questions Home Buyers Should Ask Regarding Coastal Flooding

July 21, 2018 — Beverley BevenFlorez-CDJ STAFF

According to Property Casualty 360, coastal flooding issues are on the rise: “A national research analysis from the Union of Concerned Scientists (UCS) predicts that 311,000 coastal homes are at risk of flooding, which is 26 times or more per year within the next 30 years, a phenomenon called a “chronic inundation.” By 2100, that number will exceed 2.4 million homes in the U.S.” The article recommends home buyers to “ask smart questions about coastal and tidal flooding.”

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Single-Family Home Starts See Growth

July 21, 2018 — Beverley BevenFlorez-CDJ STAFF

The National Home Builders Association’s Eye on Housing reported that Single Family Home starts have increased: “NAHB analysis of the Survey of Construction (SOC) shows that, nationally, there were 847,830 new single-family units started in 2017, 9% higher than the units started in 2016.” South Atlantic, West South Central and Mountain Divisions “accounted for about 60% of the total new single-family housing starts in 2017.”

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2018 Forum on Construction Law: Fall Meeting

July 21, 2018 — Beverley BevenFlorez-CDJ STAFF

The American Bar Association presents their 2018 Fall Meeting: It’s Lonely At The Top-Building a Successful Team with the Owner. The two-day event will cover how to make your construction project successful: “At its core, every successful construction project begins with the selection of project participants who all share one common goal to construct a project on schedule, in budget and with minimal dispute. Our program will focus on how to achieve this goal, from the perspectives of all of the project participants, including not just the Owner but also the General Contractor,Design Professionals, Subcontractors, Lenders and other stakeholders.”

October 4-5, 2018
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Construction site

The California Supreme Court found that a suit against a employer for negligent hiring, retention and supervision of a employee who intentionally injures a third party alleges an occurrence under a CGL policy.

California Supreme Court Finds Negligent Supervision Claim Alleges An Occurrence

Saturday, July 21, 2018 — Tred R. Eyerly - Insurance Law Hawaii

Answering a question posed by the Ninth Circuit, the California Supreme Court found that a suit against a employer for negligent hiring, retention and supervision of a employee who intentionally injures a third party alleges an occurrence under a CGL policy. Liberty Surplus Co. Corp. v. Ledesma & Meyer Construction Co., 2018 Cal. LEXIS 4063 (Cal. June 4, 2018)

Ledesma & Meyer Construction Company (L&M) contracted with the school district to manage a construction project at a middle school. L&M hired Darold Hecht as an assistant superintendent on the project. In 2010, Jane Doe, a 13-year-old student at the school, sued alleging that Hecht had sexually abused her. Doe’s claims included a cause of action against L&M for negligent hiring, retaining, and supervising Hecht.

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

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

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Blurred view of driving along bridge

The $400 million bridge project began in 2017 and was scheduled to be completed by 2020.

Pensacola Bridge Halted Due to Alleged Construction Defects

Saturday, July 21, 2018 — David Suggs – Bert L. Howe & Associates, Inc.

The Pensacola News Journal reported that cracks were discovered again in the Pensacola Bay Bridge, which caused construction of said bridge to be halted once more: “Cracks found in a portion of the concrete in the Pensacola Bay Bridge project have twice halted construction in the last several months, raising concerns about oversight and disclosure from the state, particularly in light of the Miami bridge collapse earlier this year.”

The Florida Department of Transportation stated “that the cracks were found during a routine visual inspection of newly placed concrete in March,” according to the Pensacola News Journal. The $400 million project began in 2017 and was scheduled to be completed by 2020.


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School building under construction

At issue was whether the policy’s definition of an “occurrence,” which was defined, like most policies, as “an accident,” was triggered by the “intentional” and clearly not accidental act of the general contractor’s employee.

Supreme Court Finds Insurance Coverage for Intentional (and Despicable) Act of Contractor’s Employee

Saturday, July 21, 2018 — Garret Murai - California Construction Law Blog

Not to cast shade on your fun in the sun, but here’s an unusual, albeit sad and creepy, one for you. I’m bummed even writing about this one.

In Liberty Surplus Insurance Corporation v. Ledesma & Meyer Construction Company, Inc., Case No. S236765 (June 4, 2018), the California Supreme Court addressed whether a general contractor’s commercial general liability carrier was obligated to defend and whether the carrier was liable for damages sustained by a young girl who was molested by an employee of the general contractor during construction at a school. At issue was whether the policy’s definition of an “occurrence,” which was defined, like most policies, as “an accident,” was triggered by the “intentional” and clearly not accidental act of the general contractor’s employee.

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

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

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Businessman in superhero cape in flying pose

This is the 9th consecutive year Lovaas has been honored, while Quinn has been consistently selected as a Rising Star honoree in prior years.

Newmeyer & Dillion Partner Aaron Lovaas & Casey Quinn Recognized by Super Lawyers

Saturday, July 21, 2018 — Newmeyer & Dillion

LAS VEGAS, Nev. – JUNE 11, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that partner Aaron Lovaas has been selected to the 2018 Mountain States Super Lawyers list, and associate Casey Quinn has been selected to the 2018 Mountain States Rising Stars list by Super Lawyers. Each year, no more than 5 percent of lawyers are named to a Super Lawyers list and less than 2.5 percent are named to the Rising Stars list. This is the 9th consecutive year Lovaas has been honored, while Quinn has been consistently selected as a Rising Star honoree in prior years.

Aaron Lovaas is a partner in the Las Vegas office. As a transactional attorney and business litigator, Lovaas has the ability to evaluate legal issues from both points of view and help his clients understand their best option. He also brings to the table experience as a business owner, having owned and managed his own boutique law firm for 12 years.

Casey Quinn, an associate in the Las Vegas office, focuses his practice in complex commercial and construction litigation. He represents a variety of business entities in commercial disputes, including contract claims, business torts, privacy lawsuits, defamation, and fraud. Quinn is a past chair of the Construction Law section of the State Bar of Nevada and has successfully argued before the Supreme Court of Nevada, as well as settled disputes through various forms of conflict resolution including mediation and arbitration.

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. The patented selection process includes independent research, peer nominations and peer evaluations.

About Newmeyer & Dillion

For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.



Contract on white paper in typewriter

The terms written into a construction contract (or any other contract for that matter) will control the outcome of any dispute in just about every case.

In Contracts, One Word Makes All the Difference

Saturday, July 21, 2018 — Christopher G. Hill - Construction Law Musings

Here at Musings, I sometimes feel as if I am beating the “contract is king” drum to death. However, each time I start to get this feeling, a new case out of either the Virginia state courts or the Fourth Circuit Court of Appeals here in Richmond reminds me that we all, lawyers and contractors alike, need to be reminded of this fact on a regular basis. The terms written into a construction contract (or any other contract for that matter) will control the outcome of any dispute in just about every case.

A recent 4th Circuit case takes this to the extreme in pointing out the the choice which of two tiny words can change the entire set of procedural rules and even the courthouse in which your dispute will be decided. In FindWhere Holdings Inc. v. Systems Env. Optimization LLC, the Fourth Circuit looked at a forum selection clause found in a contract between the parties. In this case, the clause stated that any dispute would be litigated in the courts “of the State of Virginia.” When the defendants tried to remove the case from Virginia state court to the Eastern District of Virginia federal courts, the federal court remanded the case, sending it back to the Circuit Court of Loudoun County, Virginia.

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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Trophy on brown hill with green background

Jason Poore, an associate in the General Litigation Group at White and Williams LLP, recently received the 2018 Joseph H. Foster Young Lawyer Award.

Jason Poore Receives 2018 Joseph H. Foster Young Lawyer Award

Saturday, July 21, 2018 — Jason Poore - White and Williams LLP

Jason Poore, an associate in the General Litigation Group, recently received the 2018 Joseph H. Foster Young Lawyer Award during the Philadelphia Association of Defense Counsel’s annual meeting. The Joseph H. Foster Young Lawyer Award honors “a young lawyer who best exemplifies the qualities of professionalism and dedication as defense counsel in the practice of law and in the promotion of the highest ideals of justice in the community."

Jason continues to make significant contributions to the local bar and community. In addition to serving on the Executive Committee of the Philadelphia Bar Association Young Lawyers Division, he is the creator and Chair of the PBA's Youth Courts Committee.

Reprinted courtesy of Jason Poore, White and Williams LLP

Mr. Poore may be contacted at poorej@whiteandwilliams.com

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Summit House Construction Halted to Obtain Federal Approval

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Word Proposal with green checkmark

Duuers, a Finnish startup, wants to turn the struggle of responding to RFPs into an inspiring experience.

Duuers: Better Proposals with Less Work

Saturday, July 21, 2018 — Aarni Heiskanen - AEC Business

Small contractors, consultants, and design professionals have a love–hate relationship with responding to RFPs. Duuers, a Finnish startup, wants to turn this struggle into an inspiring experience.

“We followed a day in the life of a hand-picked group of entrepreneurs,” says Paula Viinamäki, co-founder of Duuers. “We were flies on the wall, observing how small business owners wrestle with their daily tasks. Proposal-writing seemed to be an especially painful and time-consuming, yet vital, job.”

Defining the Scope through Experiments
After discovering this poorly supported but essential job that had to be done, Viinamäki and Jussi Paanajärvi, the other co-founder of Duuers, realized that they might be onto something. Consequently, they decided to start working on a prototype app for proposal-writing in the spring of 2017.

Reprinted courtesy of Aarni Heiskanen, AEC Business

Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Businessman with hands on face

In a lawsuit, residents of Austin Nichols House in Brooklyn accused Kushner Cos. of doing work "that released dangerous toxins into the air and created unlivable conditions for tenants, including vermin and excessive construction noise."

Kushner Cos. Probed Over Harassment of Low-Income Tenants

Saturday, July 21, 2018 — Erik Larson - Bloomberg

Kushner Cos. is being investigated in New York over allegations the real-estate company used disruptive construction projects to harass rent-regulated tenants so they’d move out of their apartments.

New York Governor Andrew Cuomo’s Tenant Protection Unit opened the probe after residents of Austin Nichols House in Brooklyn accused Kushner Cos. in a lawsuit of doing work "that released dangerous toxins into the air and created unlivable conditions for tenants, including vermin and excessive construction noise," the state said Monday in a statement.

Reprinted courtesy of Erik Larson, Bloomberg
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Three bicyclists

This is Mr. Tye’s second year participating in the JDC’s Bike-A-Thon, which raises funds to provide pro bono legal services programs that provide access to justice for thousands of San Franciscans every year.

Haight Proudly Supports JDC's 11th Annual Bike-A-Thon Benefitting Pro Bono Legal Services

Saturday, July 21, 2018 — Stephen M. Tye - Haight Brown & Bonesteel LLP

Haight proudly donates to the Justice & Diversity Center of the Bar Association of San Francisco’s 11th Annual “Ride for Justice” in support of San Francisco attorney Stephen M. Tye. This is Mr. Tye’s second year participating in the JDC’s Bike-A-Thon, which raises funds to provide pro bono legal services programs that provide access to justice for thousands of San Franciscans every year.

Reprinted courtesy of Stephen M. Tye, Haight Brown & Bonesteel LLP

Mr. Tye may be contacted at stye@hbblaw.com

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Pipes

Mayor Bill de Blasio says asbestos has been found around the aging steam pipe that exploded in Manhattan, according to the Associated Press, but that the air is safe.

Asbestos Confirmed After New York City Steam Pipe Blast

Saturday, July 21, 2018 — Eydie Cubarrubia - Engineering News-Record

Asbestos has been found at the site where an underground steam pipe exploded early Thursday morning near the Flatiron building in midtown Manhattan.

Reprinted courtesy of Eydie Cubarrubia, ENR

Ms. Cubarrubia may be contacted at cubarrubiae@enr.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

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