Businessman holding scales of justice

The arbitrability question is whether the dispute itself is subject to arbitration under an arbitration provision.

Supreme Court Holds Arbitrator can Fully Decide Threshold Arbitrability Issue

Monday, March 18, 2019 — David Adelstein - Florida Construction Legal Updates

The United States Supreme Court recently decided parties to a contract can agree, under the Federal Arbitration Act, an arbitrator, rather than a court, can fully resolve the initial arbitrability question. Henry Schein, Inc. v. Archer and White Sales, Inc., 2019 WL 122164 (2019). The arbitrability question is whether the dispute itself is subject to arbitration under an arbitration provision. Parties that do not want to arbitrate try to circumvent this process by filing a lawsuit and asking the court to determine the threshold arbitrability question.

In Henry Schein, Inc., the contract at-issue provided:

This Agreement shall be governed by the laws of the State of North Carolina. Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief and disputes related to trademarks, trade secrets, or other intellectual property) shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association. The place of arbitration shall be in Charlotte, North Carolina.

The plaintiff in this case asserted a claim for injunctive relief (among other claims) and argued that, therefore, the dispute is not subject to arbitration based on the exception in the provision. The initial, threshold issue became whether the dispute was subject to arbitration and, importantly, who decides this issue. The Court further looked at whether a trial court can resolve this issue under the “wholly groundless” exception, i.e.,the court can decide the issue if the argument for arbitration is wholly groundless.

Reprinted courtesy of David Adelstein, Kirwin Norris

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

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Legislation on paper in typewriter

The construction industry is waiting with bated breath to see what the Democrat controlled legislature might do with respect to construction defect legislation.

Will There Be Construction Defect Legislation Introduced in the 2019 Colorado Legislative Session?

Monday, March 18, 2019 — David McLain - Colorado Construction Litigation Blog

With the 2019 Colorado legislative session well underway, the construction industry is waiting with bated breath to see what the Democrat controlled legislature might do with respect to construction defect legislation. In recent years, having a split legislature has prevented any attempts to roll back positive changes in the law, either from the legislature or Colorado courts, that have been hailed by the construction community.

This year, odds are good that we will see at least one bill similar to two introduced last year that would hinder the ability to have disputes decided by binding arbitration. While not full frontal assaults on the Colorado Supreme Court decision in the Vallagio case, HB18-1261, the “Colorado Arbitration Fairness Act,” and HB 18-1262, the “Arbitration Services Provider Transparency Act,” would have negatively impacted the ability to resolve any type of case through arbitration. Anything that prevents the resolution of construction defect cases through arbitration will increase the judgments and settlements in such cases, ultimately increasing the costs of construction and for insurance for those in the industry.

Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC

Mr. McLain may be contacted at mclain@hhmrlaw.com

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Woman lying down next to clock

When faced with a statute of repose issue, subrogation professionals should analyze the meaning of the term “substantial completion” carefully.

South Carolina Clarifies the Accrual Date for Its Statute of Repose

Monday, March 18, 2019 — William L. Doerler - The Subrogation Strategist

In Lawrence v. General Panel Corp., 2019 S.C. LEXIS 1, No. 27856 (S.C. Jan. 1, 2019), the Supreme Court of South Carolina answered a certified question related to South Carolina’s statute of repose, S.C. Code § 15-3-640,[1] to wit, whether the date of “substantial completion of the improvement” is always measured from the date on which the certificate of occupancy is issued. The court held that a 2005 amendment to § 15-3-640 did not change South Carolina law with respect to the date of substantial completion. Thus, under the revised version of § 15-3-640, “the statute of repose begins to run at the latest on the date of the certificate of occupancy, even if there is ongoing work on any particular part of the project.” A brief review of prior case law may assist with understanding the court’s ruling in Lawrence.

In Ocean Winds Corp. of Johns Island v. Lane, 556 S.E.2d 377 (S.C. 2001), the Supreme Court of South Carolina addressed the question of whether § 15-3-640 ran from substantial completion of the installation of the windows at issue or on substantial completion of the building as a whole. Citing § 15-3-630(b),[2] the court found that the windows “were ‘a specified area or portion’ of the larger condominium project” and, upon their incorporation into the larger project they could be used for the purpose for which they were intended. Thus, the court held that “the statute of repose began running when installation of the windows was complete.”

Reprinted courtesy of William L. Doerler, White and Williams

Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

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Construction Training: Ideas and Resources for Making it Happen

March 18, 2019 — Duane Craig - Construction Informer

There’s much more to construction training than learning the technical aspects of how to do a job. There are also supporting and amplifying skills, and knowledge, that turn acceptable performers into exceptional performers. These ‘other’ skills are increasingly needed in construction because of complexity.

Oxford Economics took a deep look at the human resources challenges in the near future and found that 66% of companies are coming up short in putting together a workforce that will meet their business goals. Basically, business leaders are out of touch with what people want from their employers in “incentives, benefits and training.”


The United States Court of Appeals, Fourth Circuit, Finds Wrap-Up Exclusion Does Not Bar Coverage of Additional Insureds

March 18, 2019 — Callie E. Waers, Esq. - Florida Construction Law News

The United States Court of Appeals, Fourth Circuit, recently took a close look at the application of a “controlled insurance program exclusion” (wrap-up exclusion) to additional insureds on a commercial general liability policy. In Cont’l Cas. Co. v. Amerisure Ins. Co., 886 F.3d 366 (4th Cir. 2018), the Fourth Circuit examined the interplay of an enrolled party’s additional insured status on an unenrolled party’s commercial general liability (“CGL”) policy with a wrap-up exclusion. The court applied North Carolina law and found that pursuant to the policy’s own language, the exclusion only applied to the original named insured, not the additional insureds.

Ms. Waers may be contacted at Callie.Waers@csklegal.com


NYC's Trendy Neighborhood Leaps Into Top Five Richest Zip Codes

March 18, 2019 — Shelly Hagan & Wei Lu - Bloomberg

Finally, a New York City neighborhood has landed a coveted spot on Bloomberg’s annual ranking of America’s richest zip codes. And no, it’s not Billionaires’ Row where residences have sold for more than $100 million.

Instead, Tribeca -- a neighborhood in downtown Manhattan near the World Trade Center -- is making noise.


The 26th Annual West Coast Casualty Construction Defect Seminar

March 18, 2019 — Beverley BevenFlorez – CDJ Stafff

This May, West Coast Casualty’s Construction Defect Seminar returns to Anaheim, California. Approximately 1500 attendees attend each year in legal, contractor, builder, insurance, subcontractor, and other communities. The seminar includes keynote addresses, panels, breakout sessions, exhibition hall, and networking opportunities.

May 9th-10th, 2019
Disneyland Hotel
1150 West Magic Way
Anaheim, California 92802

Featured Experts For More Visit Us At:

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

Construction Standard of Care Expert Witness area areaarea

Registered General Contractor and ICC Certified Building Inspector area area area

Caligraphy pen over typed word Policy

Tred R. Eyerly discusses a case where an appellate court overturned a verdict for the insurer when the actual policy was never introduced at trial.

Finding of No Coverage Overturned Due to Lack of Actual Policy

Monday, March 18, 2019 — Tred R. Eyerly - Insurance Law Hawaii

The Appellate Division overturned a verdict for the insurer when the actual policy was never introduced at trial. Pennsylvania Lumbermens Mut. Ins. Co. v. B&F Land Dev. Corp., 2019 N.Y. App. Div. LEXIS 264 (N.Y. App. Div. Jan 16, 2018).

The decedent was killed when he fell through a skylight while working on a premises owned by B&F Land Development Corporation. The estate sued B&F for wrongful death.

B&F tendered to its carrier, Pennsylvania Lumbermens Mutual (PLM). PLM issued a reservations of rights. It later denied coverage because the location of the loss was not a location listed on the policy, an exclusion barred coverage for bodily injury arising out of B&F's ongoing operations conducted by it or on its behalf, and the loss was not reported to PLM as soon as practicable.

PLM sued B&F and the estate for a declaratory judgment that it had no duty to defend or indemnify. A default judgment was entered against B&F after it failed to answer. Trial proceeded against the estate

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

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

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Expansion icon

William Silverman leads new WSHB North Carolina office.

WSHB Expands into the Southeast

Monday, March 18, 2019 — William Silverman – Wood Smith Henning & Berman LLP

National law firm Wood, Smith Henning & Berman LLP (WSHB) announced the opening of its North Carolina office, bringing the total number of offices nationwide to 24. Leading this office is prominent trial attorney William Silverman.

Mr. Silverman enjoys a well deserved reputation for consistent results throughout the Carolinas in complex commercial litigation. His practice areas include construction and corporate disputes, insurance coverage, first and third party insurance bad faith litigation, environmental, and catastrophic injury matters. He is an “AV Preeminent” rated attorney by Martindale-Hubbell, and has been listed in Business North Carolina’s Legal Elite in the Young Guns and Construction categories. Mr. Silverman comes to the Firm from a seven year tenure at Wall Templeton, where he served as a Shareholder.

Reprinted courtesy of William Silverman, Wood Smith Henning & Berman LLP

Mr. Silverman may be contacted at wsilverman@wshblaw.com

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Lawyer standing in front of judge illustration

The Supreme Court of Rhode Island addressed issues involving intended beneficiaries to contracts and the application of the economic loss doctrine.

Rhode Island Examines a Property Owner’s Intended Beneficiary Status and the Economic Loss Doctrine in the Context of a Construction Contract

Monday, March 18, 2019 — Shannon M. Warren - The Subrogation Strategist

In Hexagon Holdings Inc. v. Carlisle Syntec, Inc. No. 2017-175-Appeal, 2019 R.I. Lexis 14 (January 17, 2019), the Supreme Court of Rhode Island, discussing claims associated with allegedly defective construction, addressed issues involving intended beneficiaries to contracts and the application of the economic loss doctrine. The court held that, based on the evidence presented, the building owner, Hexagon Holdings, Inc. (Hexagon) was not an intended third-party beneficiary of the subcontract between the general contractor (A/Z Corporation) and the subcontractor, defendant McKenna Roofing and Construction, Inc. (McKenna). In addition, the court held that, in the context of this commercial construction contract, the economic loss doctrine applied and barred Hexagon’s negligence claims against McKenna.

Approximately nine years after Hexagon entered into a contract with A/Z Corporation for the construction of a building, Hexagon filed suit against A/Z Corporation’s roofing installation subcontractor, McKenna, and the manufacturer of the roofing system. Hexagon alleged that the roof began to leak shortly after McKenna installed it. Notably, Hexagon did not sue A/Z Corporation.

Reprinted courtesy of Shannon M. Warren, White and Williams

Ms. Warren may be contacted at warrens@whiteandwilliams.com

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Environment within puzzle

The case illustrates issues that arise in the “new” sustainable building world.

Be Careful with “Green” Construction

Monday, March 18, 2019 — Christopher G. Hill - Construction Law Musings

As readers of Construction Law Musings can attest, I am an enthusiastic (if at times skeptical) supporter of sustainable (or “green”) building. I am solidly behind the environmental and other benefits of this type of construction. However, I have likened myself to that loveable donkey Eeyore on more than one occasion when discussing the headlong charge to a sustainable future. While I see the great benefits of a privately built and privately driven marketplace for sustainable (I prefer this term to “green” because I find it less ambiguous) building stock and retrofits of existing construction, I have felt for a while that the glory of the goal has blinded us somewhat to the risks and the need to consider these risks as we move forward.

Another example reared it’s ugly head recently and was pointed out by my pal Doug Reiser (@douglasreiser) at his Builders Counsel Blog (a great read by the way). Doug describes a project that I mentioned previously here at Musings and that is well described in his blog and in a recent newsletter from Stuart Kaplow (@stuartkaplow), namely, the Chesapeake Bay Foundation’s Philip Merrill Environmental Center project. I commend Doug’s post for a great description of the issues, but suffice it to say that the Chesapeake Bay Foundation sued Weyerhauser over some issues with a sustainable wood product that failed. While the case was dismissed on statute of limitations grounds, the case illustrates issues that arise in the “new” sustainable building world.

Reprinted courtesy of The Law Office of Christopher G. Hill

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

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Water droplet

Nutrient discharges into the Pacific Ocean off Maui are impacting coral reefs.

High Court Could Alter Point-Source Discharge Definition in Taking Clean-Water Case

Monday, March 18, 2019 — Mary B. Powers - Engineering News-Record

The U.S. Supreme Court's decision to review lower court rulings on whether a permit is required under the federal Clean Water Act when pollutants originate from a point source but are carried to navigable waters by a non-point source such as groundwater could set some new parameters for compliance, observers say.

Reprinted courtesy of Mary B. Powers, ENR

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

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Woman holding finger over her mouth in silent gesture

How do you determine whether a plaintiff obtained a more favorable judgment when the 998 offer is silent with respect to whether it includes costs?

What If Your CCP 998 Offer is Silent on Costs?

Monday, March 18, 2019 — Tony Carucci - Snell & Wilmer Real Estate Litigation Blog

In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. The potential payoff of a 998 offer is that “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.” Cal. Code Civ. Proc. § 998(c)(1) (emphasis added).

But how do you determine whether a plaintiff obtained a more favorable judgment when the 998 offer is silent with respect to whether it includes costs?

In Martinez v. Eatlite One, Inc. (2018) 27 Cal.App.5th 1181, 1182–83, the defendant made a 998 offer of $12,001 that was silent regarding the treatment of attorneys’ fees and costs. Plaintiff did not respond to the offer, and the jury ultimately awarded plaintiff damages of $11,490. Id. In resolving the parties’ competing memoranda of costs and plaintiff’s motion for attorneys’ fees, the trial court awarded plaintiff her costs and attorneys’ fees. Id. at 1182. The trial court reasoned that plaintiff had obtained a more favorable judgment than the 998 offer because she was entitled to pre-offer costs and attorneys’ fees under the statute, which meant plaintiff’s ultimate recovery exceeded the 998 offer when added to the judgment. Id. at 1183. In other words, the court added plaintiff’s pre-offer costs and attorneys’ fees to the $11,490 verdict for the purposes of determining whether the “judgment” was greater than the 998 offer of $12,001. Id.

Reprinted courtesy of Tony Carucci, Snell & Wilmer

Mr. Carucci may be contacted at acarucci@swlaw.com

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Cement, Not Just for Construction Anymore

Robot holding screwdriver

GenieBelt, founded in 2013, is headquartered in Copenhagen.

APROPLAN and GenieBelt Merge, Creating “LetsBuild” – the Build Phase End-to-End Digital Platform

Monday, March 18, 2019 — Aarni Heiskanen - AEC Business

Responding to a rising need to deliver an all-in-one solution, supporting on-site planning, progress communication, snagging, drawings and checklists, GenieBelt and APROPLAN have decided to merge to form LetsBuild – the European leader in delivering an end-to-end solution to the global construction industry.

For the past five years, GenieBelt CEO Klaus Nyengaard and APROPLAN CEO Thomas Goubau have met on a regular basis to discuss developments in the construction technology sector and how to increase efficiency and minimise rework, miscommunication, and errors.

“We share the vision that ‘simple to use’-products will bring immense value to the construction sector. When we met in October 2018, we concluded that the way to realize this vision was to unite our companies to create a broader product and cover more needs in the market,” says LetsBuild CEO Klaus Nyengaard.

Reprinted courtesy of Aarni Heiskanen, AEC Business

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

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Construction worker operating crane

Construction executives need to motivate insurers to embrace safety.

Safety Versus a False Sense of Security: Challenges to the Use of Construction Cranes

Monday, March 18, 2019 — Christopher Machut - Construction Executive

The history of safety is, in part, the history of resistance to safety. From transportation and travel to sports and entertainment, the safeguards taken for granted were once too allegedly controversial or costly for companies to grant to consumers. Imagine driving a car without a seatbelt or being a passenger in a minivan without side-impact airbags or anti-lock brakes, or playing football without a helmet or riding a roller coaster without a shoulder harness. Imagine, too, pulling out of parking space without a rear-view camera, unable to see passing cars or pedestrians.

Cameras are now as common among compact cars as on the most uncommonly expensive sports cars and sedans.

And yet, the technology that earns drivers a discount on car insurance is the same or mostly similar technology that insurers refuse to cover elsewhere. The technologies that makes parallel parking easier or easing a car into traffic a cinch is considered an extravagance on construction equipment, despite the dangers crane operators face but cannot see, despite what workers on the ground can see but not forecast, despite what cameras can record and capture.

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

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Senior couple distressed by hurricane damage

Single-family homes and mobile homes were destroyed, and some homes were reduced to slabs.

At Least 23 Dead as Tornadoes, Severe Storms Ravage South

Monday, March 18, 2019 — The Associated Press (Kim Chandler) - Bloomberg

Beauregard, Ala. (AP) -- A tornado roared into southeast Alabama and killed at least 23 people and injured several others Sunday, part of a severe storm system that caused catastrophic damage and unleashed other tornadoes around the Southeast.

"Unfortunately our toll, as far as fatalities, does stand at 23 at the current time," Lee County Sheriff Jay Jones told WRBL-TV of the death toll. He added that two people were in intensive care.

Drones flying overheard equipped with heat-seeking devices had scanned the area for survivors but the dangerous conditions halted the search late Sunday, Jones said. "The devastation is incredible," he said. An intense ground search would resume Monday morning.

Reprinted courtesy of Bloomberg
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Roman ancient ruins

$24-million restoration taps energy from warm springs for high-tech heating system.

In UK, 16th Century Abbey Modernizes Heating System by Going Back to Roman Times

Monday, March 18, 2019 — Peter Reina - Engineering News-Record

Ancient Romans in western England bathed in naturally warm spring water of the spa town of Aquae Sulis, now named Bath. Nearly 2,000 years later, the city’s 16th century abbey is now preparing to draw warmth from the still functioning Great Roman Drain to replace the former monastery’s dilapidated Victorian-era heating system.

Reprinted courtesy of Peter Reina, ENR

Mr. Reina may be contacted at reina@btinternet.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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