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CONSTRUCTION DEFECT NEWS
Water rippling

Brian Margolies discusses Clarendon National Ins. Co. v. Philadelphia Indemnity Ins. Co.

Massachusetts Federal Court Holds No Coverage for Mold and Water Damage Claim

Monday, February 11, 2019 — Brian Margolies - TLSS Insurance Law Blog

In its recent decision in Clarendon National Ins. Co. v. Philadelphia Indemnity Ins. Co., 2019 WL 134614 (D. Mass. Jan. 8, 2019), the United States District Court for the District of Massachusetts had occasion to consider the application of a prior knowledge provision in the context of a claim for mold and water-related bodily injury and property damage.

Philadelphia insured a condominium property management company under a general liability insurance policy for the period September 1, 2007 through September 1, 2008. In 2009, the insured was sued by a unit owner alleging bodily injury and property damage resulting from toxic mold conditions resulting from leaks that had been identified in her unit as early as 2004. Notably, the complaint alleged that mold was identified in 2006 and that repair efforts were undertaken, but that these efforts all proved unsuccessful. Plaintiff alleged that she was forced to vacate her apartment in 2008 as a result of the conditions.

Reprinted courtesy of Brian Margolies, Traub Lieberman

Mr. Margolies may be contacted at bmargolies@tlsslaw.com

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Nine of Newmeyer & Dillion's Newport Beach attorneys have been selected to the 2019 Southern California Super Lawyers list.

Nine Newmeyer & Dillion Attorneys Recognized as Southern California Super Lawyers

Monday, February 11, 2019 — Newmeyer & Dillion LLP

Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that nine of its Newport Beach attorneys have been selected to the 2019 Southern California Super Lawyers list. Each year, no more than 5 percent of lawyers are selected to receive this honor.

Attorneys named to the Southern California Super Lawyers list include:
Michael Cucchissi
Jeff Dennis
Greg Dillion
Joseph Ferrentino
Charles Krolikowski
John O'Hara
Jane Samson
Michael Studenka
Paul Tetzloff

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 almost 35 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, privacy & data security 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.



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An otherwise invalid indemnification clause is bailed out by a ruling.

Bailout for an Improperly Drafted Indemnification Provision

Monday, February 11, 2019 — David Adelstein - Florida Construction Legal Updates

A recent opinion came out that held that even though an indemnification provision in a subcontract was unenforceable per Florida Statute s. 725.06, the unenforceable portion is merely severed out of the indemnification clause leaving the rest of the clause intact. In essence, an otherwise invalid indemnification clause is bailed out by this ruling (which does not even discuss whether this subcontract had a severability provision that states that if any portion of any provision in the subcontract is invalid, such invalid portion shall be severed and the remaining portion of the provision shall remain in full force and effect).

This opinion arose from a construction defect case, CB Contractxors, LLC v. Allens Steel Products, Inc.,43 Fla.L.Weekly D2773a (Fla. 5thDCA 2018), where the general contractor, sued by an association, flowed down damages to subcontractors based on the contractual indemnification provision in the subcontracts. Subcontractors moved to dismiss the contractual indemnification claim because it was not compliant with Florida Statute s. 725.06. The indemnification provision required the subcontractors to indemnify the general contractor even for the general contractors own partial negligence, but failed to specify a monetary limitation on the extent of the indemnification as required by Florida Statute s. 725.06. (The indemnification clause in the subcontract was the standard intermediate form of indemnification that required the subcontractor to indemnify the general contractor for claims regardless of whether the claims were caused in part by the general contractor.)

Reprinted courtesy of David Adelstein, Kirwin Norris

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

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Scaling up Building Sustainability Assessments with BIM Model Checker Tools

February 11, 2019 — Aarni Heiskanen - AEC Business

Sustainability of buildings is an essential topic – buildings and construction consume almost half of raw materials and one third of energy in Europe. Therefore, scaling up the building sustainability assessments and making them faster and more reliable is a key challenge.

Building sustainability is evaluated with a Life Cycle Assessment (LCA). An LCA is a quantitative method of assessing a building’s environmental impact throughout its life cycle, i.e., procurement, construction, operation, and decommissioning. The assessment allows owners to optimize the entire building process from a life cycle cost perspective instead of resorting to short-term sub-optimization.

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

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Texas Supreme Court Holds Anadarko May Be Able to Recover Substantial Deepwater Horizon Defense Costs from Insurers

February 11, 2019 — Anthony B. Cavender - Gravel2Gavel

On January 25, the Texas Supreme Court issued a unanimous ruling in the case of Anadarko Petroleum Corp. and Anadarko E&P Co. v. Houston Cas. Co., et al., characterized as an “interlocutory permissive appeal,” reversing the decision of the U.S. Court of Appeals for the Ninth Circuit, sitting in Beaumont, TX, regarding Anadarko’s insurers’ obligation to pay a significant amount of Anadarko’s legal defense costs that resulted from its liability in the Deepwater Horizon oil spill.

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

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Green Builders Embrace the Three Ps: People, Planet and Profit

February 11, 2019 — Taryn Holowka - Construction Executive

The term “triple bottom line” was coined in 1994, but it has never been more relevant to the trillion-dollar green construction industry—and to the planet—than it is today.

First applied to socially responsible business, triple bottom line can apply to all kinds of projects in the built environment. The concept incorporates a long-term view for assessing potential effects and best practices through three lenses:

  • People (social capital): All the costs and benefits to the people who design, construct, live in, work in, and constitute the local community and are influenced, directly or indirectly, by a project.
  • Planet (natural capital): All the costs and benefits of a project on the natural environment, locally and globally.
  • Profit (economic capital): All the economic costs and benefits of a project for all stakeholders.

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

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Tucson ABA Insurance Coverage Seminar Coming Soon

February 11, 2019 — Tred R. Eyerly - Insurance Law Hawaii

The dates for this year's ABA Insurance Coverage Litigation Committee CLE Seminar in Tucson are February 27 to March 2, 2019. Again this year, the seminar promises to provide cutting edge CLE programming and many networking opportunities. I will be on a panel addressing "Changing Climate, Changing Risks and Policies," with my esteemed colleagues, Rina Carmel, Esq., Karin S. Aldama, Esq., and Demetrius E. Rush, Esq.

Registration information is here. If you have any interest in coverage issues, this is the event to attend.

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Tred R. Eyerly analyzes Kalman Floor Co. v. Old Republic Gen. Ins. Corp.

No Coverage for Defects in Subcontrator's Own Work

Monday, February 11, 2019 — Tred R. Eyerly - Insurance Law Hawaii

Damage to the concrete floor installed by the insured subcontractor was not property damage and thus not covered under the insured's CGL policy. Kalman Floor Co. v. Old Republic Gen. Ins. Corp., 2019 U.S. Dist. LEXIS 3319 (D. Colo Jan. 8, 2019).

In 2007, Kalman Floor Co. was subcontracted to construct over 158,000 square feet of concrete flooring for a cold storage facility. The concrete floor was completed in late 2008. In late 2009, the contractor notified Kalman that pockmarks, or "pop-outs," were visible on the concrete flooring. The only damage to tangible property in the facility caused by the pop-outs was the concrete flooring itself.

On January 31, 2009, Old Republic issued a general liability policy to Kalman for one year. The policy excluded for damage to "your work," defined as "work or operations performed by you or on your behalf." Old Republic denied coverage for damage to the concrete floor. Kalman sued, seeking a declaration that the exclusions did not bar coverage.

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

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

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It is critically important to have current company personnel listed on the company’s licensing records with the Contractor’s State Licensing Board.

Let the 90-Day Countdown Begin

Monday, February 11, 2019 — Amy L. Pierce & Robert A. James - Gravel2Gavel Construction & Real Estate Law Blog

Most contractors are diligent about making sure that they pay their licensing fees, renew worker’s compensation insurance, and maintain the required bonds. What may be less obvious is how critically important it is to have current company personnel listed on the company’s licensing records with the Contractor’s State Licensing Board. Only personnel listed on the CSLB’s records are authorized to act on behalf of the licensee with respect to CSLB-related matters.

Although this may sound simple enough, all such personnel will be required to comply with fingerprinting (and background check) requirements before their applications to be added to the company’s licensing records can be approved. No new personnel will be associated with the licensee until their application is determined to be acceptable and all other requirements are met. Unforeseeable processing delays could result in this new personnel being unable to timely act on behalf of the licensee.

Reprinted courtesy of Amy L. Pierce, Pillsbury and Robert A. James, Pillsbury
Ms. Pierce may be contacted at amy.pierce@pillsburylaw.com
Mr. James may be contacted at rob.james@pillsburylaw.com


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Businessman holding document

One potential pitfall in drafting is an “agreement to agree” or an agreement to negotiate a separate contract in the future.

Terms of Your Teaming Agreement Matter

Monday, February 11, 2019 — Christopher G. Hill - Construction Law Musings

These days in construction, and other pursuits, teaming agreements have become a great method for large and small contractors to work together to take advantage of various contract and job requirements from minority participation to veteran ownership. With the proliferation of these agreements, parties must be careful in how they draft the terms of these agreements. Without proper drafting, the parties risk unenforceability of the teaming agreement in the evewnt of a dispute.

One potential pitfall in drafting is an “agreement to agree” or an agreement to negotiate a separate contract in the future. This type of pitfall was illustrated in the case of InDyne Inc. v. Beacon Occupational Health & Safety Services Inc. out of the Eastern District of Virginia. In this case, InDyne and Beacon entered into a teaming agreement that provided that InDyne as Prime would seek to use Beacon, the Sub, in the event that InDyne was awarded a contract using Beacon’s numbers. The teaming agreement further provided:

The agreement shall remain in effect until the first of the following shall occur: … (g) inability of the Prime and the Sub, after negotiating in good faith, to reach agreement on the terms of a subcontract offered by the Prime, in accordance with this agreement.

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
Basic stick figures

As all personal injury claims are different, some may resolve early depending on the nature of the claim.

Personal Injury Claims – The Basics

Monday, February 11, 2019 — Jessica L. Mulvaney - Bremer Whyte Brown & O'Meara LLP

Personal injury claims can manifest in multiple ways, and while procedurally many may be similar, no two cases are ever exactly alike. The basis of all personal injury claims is a person suffering some injury or harm. The laws related to personal injury claims are in place to allow for the party at fault to be held responsible, and the injured party to seek a remedy and be “made whole” after suffering injury.

Typical causes of action for personal injury claims can include intentional actions (torts) against an individual, negligence, or strict liability. At the heart of all injury claims are the issues of liability and damages. Liability is the determination of whether the defendant being accused of the harm is responsible, i.e. caused the injury and resulting harm. Damages is a concept that encompasses the harm a person suffered as a result of the injury. For personal injury, typical damages can include medical bills, loss of earnings, future medical care, and pain and suffering.

Reprinted courtesy of Jessica L. Mulvaney, Bremer Whyte Brown & O'Meara LLP
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The half-built rail line is the largest public works project in state history.

Auditor: Prematurely Awarded Contracts Increased Honolulu Rail Cost by $354M

Monday, February 11, 2019 — Honolulu Star-Advertiser - Engineering News-Record

Jan. 10 --A series of "prematurely" awarded rail contracts doled out to construction companies as early as 2009 prompted delay claims and change orders that increased the cost of the Honolulu rail project by more than $354 million , according to a new report by the Hawaii State Auditor released today.

Reprinted courtesy of Engineering News-Record

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

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Businessman holding finger on digital skyline model

The Law Clinic collects and analyzes information on legal problems and identifies laws that may slow down or impede digitalization in the built environment.

The Law Clinic Paves Way to the Digitalization of Built Environment Processes

Monday, February 11, 2019 — Aarni Heiskanen - AEC Business

The Law Clinic offers legal advice on digitalization to built environment innovators and experimenters and in the process helps lawmakers find the pain points in legislation.

In April 2018 the Finnish Ministry of the Environment launched an experimental legal service for real estate and construction professionals, municipalities, and lawmakers.

The cost-free service is like a helpdesk for anyone who has questions about real estate and construction laws and regulations and their interpretation as it applies to new digital processes. The Law Clinic is part of the national KIRA-digi project, which includes 138 experiments, many of which need legal advice for their execution.

Reprinted courtesy of Aarni Heiskanen, AEC Business

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

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Woman Brings Property Damage Concerns To Downtown Developer

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CONSTRUCTION DEFECT NEWS
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Understanding the distinction between the two types of arbitration provisions is important.

Drafting a Contractual Arbitration Provision

Monday, February 11, 2019 — David Adelstein - Florida Construction Legal Updates

A recent Florida case discussing a contractual arbitration provision in a homebuilder’s contract discussed the difference between a narrow arbitration provision and a broad arbitration provision. See Vancore Construction, Inc. v. Osborn, 43 Fla.L.Weekly D2769b (Fla. 5th DCA 2018). Understanding the distinction between the two types of arbitration provisions is important, particularly if you are drafting and/or negotiating a contractual arbitration provision.

A narrow contractual arbitration provision includes the verbiage “arises out of” the contract such that disputes arising out of the contract are subject to arbitration. Arbitration is required for those claims the have a direct relationship with the contract.

Reprinted courtesy of David Adelstein, Kirwin Norris

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

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Some property owners are vowing to reject buyout offers and are preparing to fight the administration in court.

As Trump Visits Border, Texas Landowners Prepare to Fight the Wall

Monday, February 11, 2019 — Associated Press - Engineering News-Record

HIDALGO, Texas (AP) — As President Donald Trump traveled to the border in Texas to make the case for his $5.7 billion wall , landowner Eloisa Cavazos says she knows firsthand how the project will play out if the White House gets its way.
The federal government has started surveying land along the border in Texas and announced plans to start construction next month. Rather than surrender their land, some property owners are digging in, vowing to reject buyout offers and preparing to fight the administration in court.

Reprinted courtesy of Engineering News-Record

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

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Cristina Savian is the founder and managing director at BE-WISE.

Digital Twins – Interview with Cristina Savian

Monday, February 11, 2019 — Aarni Heiskanen - AEC Business

In this interview with Cristina Savian, we discuss the present and future of digital twins in the construction industry.

Cristina Savian is the founder and managing director at BE-WISE, a London based consultancy firm specialized in helping start-ups and SMEs to scale-up and bring new technologies into the construction market.

Cristina has over twenty years’ experience in the civil engineering and technology industries, working from small-scale traffic calming and parking schemes in UK and Italy, through to planning major events such as playing a key role as transport manager of the Greenwich Park venue during the London 2012 Olympic and Paralympic Games. She then moved to work for a multinational leading technology company, Autodesk, covering several global roles as technical and commercial lead across Europe and America.

Reprinted courtesy of Aarni Heiskanen, AEC Business

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

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Joanna Masterson has been a writer and editor for Construction Executive for more than a decade.

New Jersey Imposes New Apprenticeship Training Requirements

Monday, February 11, 2019 — Joanna Masterson - Construction Executive

The New Jersey Senate and Assembly approved a bill (A-3666) that requires construction businesses to certify participation in a U.S. Department of Labor-approved apprenticeship program in order to obtain or renew a public works contractor registration certificate. The DOL-approved program requirements apply to every classification of worker employed on a public works jobsite.

New Jersey businesses that don’t want to set up an in-house program can satisfy these mandates by participating in a trade association’s DOL-registered apprenticeship program.

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



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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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