AGC Construction Safety, Health & Environmental Virtual Conference

June 29, 2020
Beverley BevenFlorez – CDJ Staff

The Associated General Contractors of America (AGC) presents an event “ to hone in on the most critical safety, health and environmental compliance and risk issues impacting the business of construction.” This three-day virtual conference will provide “informative presentations, panel discussions and interactive breakouts.” Attendees will have opportunities for Q&A with the speakers and learn about exhibitors.

July 14-16, 2020
Virtual Event


Contract Provisions That Help Manage Risk on Long-Term Projects

Contract in typewriter

Projects that start under one set of assumptions or conditions can occur or conclude under much different ones.

June 29, 2020
Jason Lambert - Construction Executive

Few things can dampen the thrill and promise of a newly closed construction deal than the realization that it could quickly become a losing proposition for the contractor depending on economic and other conditions. In an era of instant information, constantly adjusting markets and political extremes, projects that start under one set of assumptions or conditions can occur or conclude under much different ones. While no one has a crystal ball, there are contractual provisions that can provide clear guidance in the face of many “what ifs” that can arise in construction.

One of the chief concerns a contractor should have in a project lasting more than a few months is what impact price increases will have on the profitability of the job. On a true cost-plus project, this may be of little concern, but on any project with a limitation on costs or a guaranteed maximum price, contractors should insist on a procedure to revisit the limitation or price if certain conditions change.

This can be as simple as allowing the contractor to receive an upward adjustment in the price if costs increase by more than a certain percentage. It can be as complicated as requiring multiple new bids and disclosures to the property owner, architect or project manager and allowing approval of new suppliers or subcontractors to limit cost increases to the cheapest increase. The protection—and certainty—to the contractor though, comes from having a process in the contract to address cost increases, whether it is simple or complex.

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

Mr. Lambert may be contacted at Jason.lambert@dinsmore.com


Get on the Path to Healthy Buildings With LEED

June 29, 2020
Tommy Linstroth - Construction Executive

The COVID-19 pandemic has spurred a new focus on how health and wellness issues can be proactively addressed through building design and green construction techniques.

Designers have to consider how viruses can be transmitted and how the danger can be mitigated. Research on how airborne particles can be circulated in HVAC systems leads to more discussion about proper system design and filtration and the importance of introducing clean outdoor air in the facility.

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


Coverage for Faulty Workmanship Denied

Denied in red

The court found there was no coverage for the insureds' alleged negligent failure to construct a building.

June 29, 2020
Tred R. Eyerly - Insurance Law Hawaii

The court found there was no coverage for the insureds' alleged negligent failure to construct a building. Evanston Ins. Co. v. DCM Contracting, 2020 U.S. Dist. LEXIS 63977 (N.D. Ga. Feb. 28, 2020).

Turning Point Church sued DCM Contracting for faulty workmanship on a construction project. Turning Point sent a demand letter to DCM on August 18, 2017 and filed suit in December. Evanston did not receive notice of Turning Point's claims and the lawsuit until May 15, 2018.

Evanston filed suit for a declaratory judgment and moved for summary judgment. The court first considered the late notice. The policy required notice "as soon as practicable" DCM was also required to provide copies of demands, notices, or legal papers to Evanston. Here, DCM did not give notice to Evanston until nine months after receipt of Turning Point's demand. A phone communication with DCM's agent between August 2017 and May 2018 was insufficient. DCM provided no documents, including the summons and complaint, to the agent. DCM waited five months to forward the underlying lawsuit. This was a breach of the policy.

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


Sanctions Award Against Pro Se Plaintiff Upheld

Lady law blindfolded holding scales of justice

The plaintiff's failure to timely name an expert witness in his bad faith action led to sanctions being awarded against him in favor of the insurer.

June 22, 2020
Tred R. Eyerly - Insurance Law Hawaii

The plaintiff's failure to timely name an expert witness in his bad faith action led to sanctions being awarded against him in favor of the insurer. Black v. Fireman's Fund Ins. Co., 2020 Cal. App. Unpub. LEXIS 2477 (Cal. Ct. App. April 23, 2020).

After Black's claim was denied by Fireman's Fund, he communicated with company through letters, emails and phone conversations. Black complained that Fireman's Fund handled his claim improperly, engaged in illegal activities and had ties to the Nazi regime in Germany. Fireman's Fund sued Black alleging that his communications amounted to civil extortion, interference with contractual relations, interference with prospective economic advantage, and unfair business practices. Fireman's Fund eventually dismissed its complaint without prejudice.

Black, however, had filed a cross-complaint in which he asserted a number of claims, including bad faith. Black designated attorney Randy Hess as an expert on insurance claims. Over the next year and a half, Fireman's Fund repeatedly attempted to take Hess's deposition. In March 2018, Fireman's Fund moved to compel the deposition or exclude the testimony. The court set a July 20, 2018 deadline for the disposition to take place or else the testimony would be excluded.

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


Do We Need Blockchain in Construction?

Chain links

Blockchain could have a significant impact on the construction industry.

June 22, 2020
Cristina Savian - AEC Business

Blockchain technology claimed to have the potential to disrupt many aspects of how companies do business. And like other emerging technologies, I have been exploring its uses, benefits and assessing its potential opportunities in the construction industry. If like me, you have been wondering what it is and if its applications are limited to financial services and cryptocurrencies; you will be pleasantly surprised to discover that it has a lot more applications with exciting opportunities for our sector too.

Blockchain could have a significant impact on our industry. In writing this article I have discovered that the Australian government is full steam ahead, that many organisations are currently building their own blockchain networks and that it is something that businesses right across the built environment should be preparing for now. But more on that soon, first we need to define what blockchain is.


CISA Guidance 3.1: Not Much Change for Construction

Change Same Buttons

CISA added a few construction-related services to “Essential Critical Infrastructure."

June 22, 2020
Laura Bourgeois LoBue - Gravel2Gavel Construction & Real Estate Law Blog

This week, the Cybersecurity & Infrastructure Security Agency (CISA) issued Version 3.1 of its Guidance on the Essential Critical Infrastructure Workforce. For the most part, CISA’s Guidance 3.1 did not change from Version 3.0 as it relates to construction. However, CISA added a few construction-related services to “Essential Critical Infrastructure”:

  • “Workers who support the construction and maintenance of electric vehicle charging stations.”
  • “Engineers performing or supporting safety inspections.”

Ms. LoBue may be contacted at laura.lobue@pillsburylaw.com


LEEDigation: A Different Take

Green house with leaf out of chimney

Designing and building to LEED standards, or rather, just designing and building sustainably in general, is a different way than what we have been used to.

June 22, 2020
Christopher G. Hill - Construction Law Musings

This weeks Guest Post Friday at Musings is a real treat. Sara Sweeney is a registered architect, LEED AP and GreenFaith Fellow in religious environmental leadership. Her 18-year architectural career reflects her passion and commitment to sustainable building design and stewardship of our natural environment. She is the founder of EcoVision LLC, a solutions-based research and consulting firm, grounded in sustainable design practices, environmental stewardship, and building science.

Dude

Every so often I come across a word that drives me nuts. A few years ago it was ‘Dude.’ Lately, it is ‘LEEDigation.’ It’s a new term to “describe green building litigation” coined by Chris Cheatham, a fine person and very knowledgeable attorney in construction law and a LEED AP as well. Per his definition, LEEDigation “could involve disputes arising from green building certification, could arise if a project fails to obtain government incentives or satisfy mandates for green building construction, or could simply result from improperly designed or constructed green building strategies. It all makes sense. So why does it drive me nuts?

Round Peg. Square Hole.

Although I fully understand why the term was coined, such a term keeps us in flat world, that is, the world of conventional design and construction. Designing and building to LEED standards, or rather, just designing and building sustainably in general, whether to meet a third party standard or not, is a different way than what we have been used to. Period. Whereas our conventional way is focused on first costs, and sees the building more as a commodity than the human imprint and legacy on Earth, sustainable design and building is a process which, at its best, considers the economic impacts of NOT building responsibly. It is a more holistic way of building and balances long-term costs and implications with short term costs.

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


Newmeyer Dillion Attorneys Named to 2020 Southern California Rising Stars List

Red white and blue star with banner

Partner Eric Rollins and associates Jason Moberly Caruso and Richard Protzmann have been selected to the 2020 Southern California Rising Stars list by Super Lawyers.

June 22, 2020
Newmeyer Dillion

Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that partner Eric Rollins and associates Jason Moberly Caruso and Richard Protzmann have been selected to the 2020 Southern California Rising Stars list by Super Lawyers. Each year, no more than 2.5 percent of the lawyers in the state are selected to receive this honor. The attorneys will be recognized in the June 2020 issues of Super Lawyers Magazine, Los Angeles Magazine and Orange Coast Magazine.

Eric Rollins, a partner in the Newport Beach office, provides legal counsel in a diverse array of practice areas with a focus on business, real estate, construction, insurance, and entertainment law. In his more than ten years at the firm, Eric has litigated and resolved hundreds of matters in both state and federal court through negotiation, mediation, arbitration, and trial. This is his third year as a Rising Star honoree.

Jason Moberly Caruso is an associate in the Newport Beach office. Jason's practice focuses on various aspects of "contaminated sites" environmental legal work, complex litigation, and appellate matters. This is the fifth consecutive year Jason has been honored.

Richard Protzmann is an associate in the Newport Beach office. Richard's practice focuses on focuses his practice on areas of business litigation, eminent domain, environmental law, zoning and land use, and general real estate litigation. This is the first year Richard has been selected.

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 evaluates candidates on 12 indicators of peer recognition and professional achievement, resulting in a comprehensive, credible and diverse listing of exceptional attorneys. The Rising Stars list is developed using the same selection process except candidates must be either 40 years old or younger, or have been in practice for 10 years or less.

About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 70 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's operations, growth, and profits. 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 Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.


California Assembly Passes Expedited Dam Safety for Silicon Valley Act

Green check next to Passed

Anderson Reservoir in Santa Clara, Calif., must be fully drained starting Oct. 1.

June 22, 2020
Tim Newcomb - Engineering News-Record

In an effort to move forward a $576 million Anderson Dam Seismic Retrofit Project, the California State Assembly passed AB 3005 on June 8, the Expedited Dam Safety for Silicon Valley Act, facilitating the construction of the project.

Tim Newcomb, Engineering News-Record

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

Read the full story...


“Other Insurance” Provisions To Limit Insurer’s Risk

June 22, 2020
David Adelstein - Florida Construction Legal Updates

Insurance policies often contain an “Other Insurance” provision to limit or control an insurer’s risk if another insurer covers the same risk / loss. See Pavarini Construction Co. (Se) Inc. v. Ace American Ins. Co., 161 F.Supp.3d 1227, 1234 (S.D.Fla. 2015) (“Other Insurance” provisions apply “when two or more insurance policies are on the same subject matter, risk, and interest.”). This is an important provision to insurers and may be modified by an endorsement to your insurance policy. It is designed to determine whether the policy, as discussed below, should serve as a primary policy or excess policy. It is important to understand this “Other Insurance” provision and its application because it will come up, particularly in a multi-party construction defect dispute.

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


Colorado Legislature Kills SB 20-138 – A Bill to Extend Colorado’s Statute of Repose

Legislation word on paper in typewriter

On second reading in the Senate on May 28th, the bill was laid over until December 31st, effectively killing the bill.

June 22, 2020
David M. McLain – Colorado Construction Litigation

As previously reported, SB 20-138, “Concerning Increased Consumer Protection for Homeowners Seeking Relief for Construction Defects,” would have extended the Colorado statute of repose applicable to construction defect claims. Senate Bill 20-138, if enacted, would have:

  1. Extended Colorado’s statute of repose for construction defects from 6+2 years to 10+2 years;
  2. Required tolling of the statute of repose until the claimant discovers not only the physical manifestation of a construction defect, but also its cause; and
  3. Permitted statutory and equitable tolling of the statute of repose.

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


Defining a Property Management Agreement

Businesswoman looking pensive while reading contract

A guide to what is needed in a Property Management Agreement to avoid potential real estate disputes between owners and property managers.

June 22, 2020
Bremer Whyte Brown & O'Meara LLP

This article will serve as a guide to what is needed in a Property Management Agreement to avoid potential real estate disputes between owners and property managers.

What is a Property Management Agreement?

With the known volatility in the stock market since the “Dot-com Bubble” in the late 1990’s the Financial Crisis spanning 2007 to 2009, and even today’s global market crash arising from the COVID-19 Pandemic, people have looked to invest in options such as real estate that have proven to be more stable than the fluctuating and uncertain stock market.

Today, more than ever, people have recognized the benefits in real estate and diversified their investments to include the ownership of residential or commercial property. This has grown to become a lucrative source of income.


Priority of Liability Insurance Coverage and Horizontal and Vertical Exhaustion

Glasses lying on insurance policy document

Insurance is crucial in order to properly assess risk, flow down risk, and manage risk.

June 22, 2020
David Adelstein - Florida Construction Legal Updates

Recently, I participated in a webinar involving the horizontal and vertical exhaustion of insurance coverage. Say what?

This pertains to the PRIORITY of liability insurance coverage and the interface between a general contractor’s (or upstream party’s) primary insurance and the subcontractor’s (or downstream party’s) excess insurance, particularly when the general contractor is required to be indemnified by the subcontractor and named as an additional insured under the subcontractor’s liability policies.

For instance, let’s assume the general contractor has a $2M primary policy and a $5M excess policy. Its subcontractor has a $1M primary and a $5M excess policy. The general contractor is an additional insured under the subcontractor’s policies and the subcontractor is required to contractually indemnify the general contractor. An issue occurs caused by the subcontractor’s negligence resulting in a $5M judgment against the general contractor and the subcontractor.

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


Corps Proposes $4.6B Plan to Steel Miami for Storm Surge

Senior couple looking at hurricane damage

Structural elements are a large part of the Corps' $4.6 Billion Miami-Dade plan.

June 22, 2020
Pam Radtke Russell - Engineering News-Record

A $4.6-billion U.S. Army Corps of Engineers proposal to protect Miami from future storm surge, largely by building massive sea walls and elevating infrastructure systems, is the latest of such plans the agency has developed for East Coast communities.

Pam Radtke Russell, Engineering News-Record

Ms. Russell may be contacted at Russellp@bnpmedia.com

Read the full story...


USLAW Network Women’s Connection—Month of Virtual Events

June 22, 2020
Colleen E. Hastie - Traub Lieberman

Please join us, in partnership with USLAW NETWORK, Inc. Women’s Connection, for a complimentary month of virtual events created by women, for women. The event runs from July 1st to July 31st, 2020.

Choose from any number of offered learning and sharing discussions, health and wellness classes, amazing speakers, and social networking opportunities as you wish.

On July 23, 2020, Traub Lieberman partner Colleen E. Hastie, will be presenting the topic “Perceptions of Women in the Claims and Litigation Arena: Are we Debunking the Myths or Feeding into the Sexism.”

July 1st-31st, 2020
Virtual Events


It Has Started: Supply-Chain, Warehouse and Retail Workers of Essential Businesses Are Filing Suit

Man holding paperwork

While common law negligence defenses consider the reasonableness of conduct, these directives will likely become the standard.

June 22, 2020
Robert G. Devine, James Burger & Douglas Weck - White and Williams LLP

Supply-chain businesses that are appropriately characterized as “essential” have remained open for the delivery of critical supplies while everyone else has been told to close up shop and stay home. Now essential-business employees are contracting COVID-19 and filing suit. Following up on our earlier piece — “Is a Violation of a COVID-19 Order the Basis For Civil Liability?” — it is important to recognize that government directives, oftentimes couched as “recommendations,” can come to define what it means to provide a reasonably safe workplace that protects employees from COVID-19. While common law negligence defenses consider the reasonableness of conduct, these directives will likely become the standard.

The cases that have been filed are overwhelmingly premised upon the timeless negligence construct. The negligence construct, simply put, imposes a duty to act as a reasonable person would under the circumstances. Nonetheless, while the negligence construct lives in the ordinary world of “reasonableness,” infection-control guidance lives in the rapidly developing world of the science of COVID-19. Guidance on seemingly basic questions, such as the methods of transmission (e.g., personal contact, mucus membrane only, airborne transmission) or even the virus’s shelf life on different surfaces, of particular interest packaging and material handling equipment, can change by the day. All of this provides challenges for the supply-side business looking to protect its workforce.

Reprinted courtesy of White and Williams LLP attorneys James Burger, Robert Devine and Douglas Weck
Mr. Burger may be contacted at burgerj@whiteandwilliams.com
Mr. Devine may be contacted at deviner@whiteandwilliams.com
Mr. Weck may be contacted at weckd@whiteandwilliams.com


Technology—The Future of the Construction Industry

June 22, 2020
Michelle Johnson & Robert Mercado - Construction Executive

One of the most challenging obstacles contractors face is securing qualified skilled laborers to meet the demands of their current workload. The advent of more sophisticated technology on jobsites is alleviating the problem in part as contractors are increasingly utilizing technology to assist in achieving timely job completion. The use of technology also makes current workers accountable for meeting production timelines. Of course, technology is not new to the construction industry; however, significant advances are enabling construction contractors to take greater advantage of technology to fill the gap in human capital.

Building Information Modeling is a prime example. During the design stage, BIM, combined with virtual and augmented reality, can facilitate sharper results and greater efficiencies. BIM assists contractors in choosing materials, fittings and design changes in order to make post-completion buildings more maintainable. For example, BIM enables the maintenance team to do a virtual walkthrough of the building to understand placement of the mechanical system in order to determine access and ability to service the system. This allows design changes to be made before the construction stage begins and can reduce or eliminate delays and change orders in the construction process.

Reprinted courtesy of Michelle Johnson & Robert Mercado, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


Construction Trust Fund Statutes: Know What’s Required in the State Where Your Project Is Underway

Construction worker on site

While the purpose is straightforward, each state’s law differs by imposing different requirements, different privileges, and different remedies.

June 22, 2020
Christopher D. Cazenave - ConsensusDocs

Construction trust fund statutes have been around for decades. At least 15 states have passed similar statutes. Other states, but not all, do not have an express statute but have interpreted state law to hold that payments received by a general contractor and deposited in a business account establishes a “trust fund.” See e.g., Cal. Bus. & Prof. Code § 7108.

The purpose of these laws is straightforward—protect contractors and suppliers against nonpayment for the labor and materials provided for the construction or repair of property. But while the purpose is straightforward, each state’s law differs by imposing different requirements, different privileges, and different remedies. This article provides an overview of how these statutes work as well as a sampling of important requirements and potential pitfalls that you should look out for when a construction trust fund statute applies to your project.

Mr. Cazenave may be contacted at ccazenave@joneswalker.com


Illinois Appellate Court Finds That Damages in Excess of Policy Limits Do Not Trigger Right to Independent Counsel

Three judges sitting behind bench

What circumstances and situations arise to the level of an actual conflict of interest between the insurer and insured are often grounds for dispute.

June 22, 2020
Jason Taylor - Traub Lieberman

Under Illinois law, an insurer’s duty to defend includes the right to control the defense, which allows insurers to protect their financial interest in the outcome of the litigation. However, where a conflict of interest exists, the insured, rather than the insurer, is entitled to assume control of the defense of the underlying action. If this occurs, the insurer satisfies its obligation to defend by reimbursing the insured for the cost of defense provided by independent counsel selected by the insured. What circumstances and situations arise to the level of an actual conflict of interest between the insurer and insured are often grounds for dispute.

In Joseph T. Ryerson & Son, Inc. v. Travelers Indemnity Co. of America, 2020 IL App (1st) 182491 (Apr. 7, 2020), the Illinois Appellate Court addressed whether damages awarded by a jury in excess of the policy limits were sufficient to trigger a right to independent counsel for post-trial and appellate proceedings. According to the Illinois Appellate Court, at least under the facts of the Ryerson case, the answer is “no.”

In Ryerson, Nancy Hoffman sued Ryerson for injuries sustained in a tractor-trailer accident. Ryerson tendered the suit to its primary insurer, Travelers, and its umbrella insurer, Illinois National. The policy limits were $2 million and $25 million, respectively. A jury found in favor of Hoffman for over $27.6 million in damages, and Ryerson appealed.

Mr. Taylor may be contacted at jtaylor@tlsslaw.com



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