Analysis: State Construction Unemployment Rates Down in 45 States From a Year Ago

September 13, 2021
ABC - Construction Executive

The not-seasonally adjusted national construction unemployment rate was down 2.6% in June 2021 from a year ago. and 45 states had lower unemployment rates over the same period, according to state-by-state analysis of U.S. Bureau of Labor Statistics data released by Associated Builders and Contractors. Although not back to pre-pandemic levels, both overall employment and construction employment have demonstrated significant improvement during the past year.

National NSA construction employment was up 233,000 from June 2020. Nevertheless, seasonally adjusted construction employment remained 238,000 (or 3.1%) below its February 2020 peak, before the impact of the COVID-19 pandemic began to affect employment numbers. This was better than national SA nonfarm payroll employment, which was 4.4% below its February 2020 peak as of June.

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


Congratulations to Partners Nicole Whyte, Keith Bremer, Peter Brown, Karen Baytosh, and Associate Matthew Cox for Their Inclusion in 2022 Best Lawyers!

Team of business people raising their arms in triumph

Best Lawyers is the most respected peer-review publication in the history of the legal profession.

September 13, 2021
Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

Bremer Whyte Brown & O’Meara, LLP is proud to announce Partners Nicole Whyte, Keith Bremer, Peter Brown, and Karen Baytosh have been selected by their peers for inclusion in the 2022 Edition of The Best Lawyers in America, and Associate Matthew Cox has been included in the Second Edition of Best Lawyers: Ones to Watch. Each person is being recognized for their diligent work in the areas of Family Law, Construction, Commercial, and Personal Injury Litigation.

Best Lawyers is the most respected peer-review publication in the history of the legal profession. Acknowledgment in both The Best Lawyers in America and Best Lawyers: Ones to Watch edition is widely regarded by both clients and legal professionals as a significant honor, bestowed on a lawyer by his or her peers.


Engineer Pauses Fix of 'Sinking' Millennium Tower in San Francisco

Orange pause circle

The tower settled about 17 in. since its completion in 2008.

September 13, 2021
Richard Korman - Engineering News-Record

Engineers paused work for at least two weeks on the $100-million foundation upgrade for San Francisco's 645-ft-tall Millennium Tower high-rise residential condominium after measurements showed increased settlement during the installation of pile casings for the new piles.

Reprinted courtesy of Richard Korman, Engineering News-Record

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

Read the full story...


Still Going, After All This Time: the Sacketts, EPA and the Clean Water Act

Sandals stuck in beach

EPA’s case was based on 2008 EPA and Corps inspection reports and Justice Kennedy’s “significant nexus” test as the controlling opinion in the 2006 Supreme Court case, Rapanos v. United States.

September 13, 2021
Anthony B. Cavender - Gravel2Gavel

On August 16, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling that the Idaho property of Michael and Chantell Sackett was a regulated wetlands under the then-controlling 1977 EPA rules defining “waters of the United States,” and that the Sacketts dredging and filling of their property was subject to regulation by the U.S. Army Corps of Engineers or EPA. EPA’s case, as it has been for many years, was based on 2008 EPA and Corps inspection reports and Justice Kennedy’s “significant nexus” test as the controlling opinion in the 2006 Supreme Court case, Rapanos v. United States. The Sacketts’ argument was that the text of the Clean Water Act, as interpreted by Justice Scalia and three other Justices, was controlling, but for several years, the Ninth Circuit has relied on Justice Kennedy’s opinion in these CWA controversies. The court’s opinion expressed considerable sympathy for the Sacketts as they negotiated the thicket of EPA’s regulatory processes, but it could not disregard circuit precedent. A few years ago, the Supreme Court ruled, in a unanimous decision, that EPA’s then extant administrative compliance orders were arbitrary and capricious. (See Sackett v. US, 566 US 120 (2015).) After that decision, the case was remanded to the federal district court, where it lingered for several more years.

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


Anti-Concurrent Causation Clause Eliminates Loss from Hurricane

Construction worker fallen trees after hurricane

The court found the insured was not covered for losses caused by Hurricane Laura due to the implementation of the policy's anti-concurrent causation clause.

September 6, 2021
Tred R. Eyerly - Insurance Law Hawaii

The court found the insured was not covered for losses caused by Hurricane Laura due to the implementation of the policy's anti-concurrent causation clause. Aegis Sec. Ins. Co. v. Lejeune, 2021 U.S. Dist. LEXIS 106804 (W. D. La. June 7, 2021).

At the time of the hurricane, the insureds' home was covered by a manufactured home insurance policy issued by Aegis. The policy excluded coverage for damage "caused by, contributed to or aggravated by" flooding. The policy's anti-concurrent causation clause read, "We do not pay for loss to the types of property covered under this policy caused by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss." The policy's exceptions followed.

After the storm, the insureds submitted their claim. Aegis filed suit for declaratory judgment. Aegis relied upon reports that the manufactured home and barn owned by the insureds were damaged by winds, then displaced and destroyed by storm surge associated with the hurricane. The home first sustained damage from the storm's high winds before it was displaced from its concrete piers by a 12 to 16 foot storm surge.

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


Christopher Leise Recognized by US News – Best Lawyers 2022 "Lawyer of the Year"

Two runners crossing finish line

"Lawyer of the Year" recognitions are awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic location.

September 6, 2021
Christopher Leise - White and Williams LLP

White and Williams is proud to announce that Christopher Leise has been named Best Lawyers® 2022 "Lawyer of the Year" in Cherry Hill, NJ for his work in Litigation - Insurance.

Chris focuses his practice on complex insurance and commercial litigation, including the representation of licensed insurance agents and brokers in professional liability claims and agency contract disputes. He also has extensive experience litigating complex insurance coverage, insurance bad faith, RICO and insurance fraud claims, fire damage claims, and ERISA disputes. Chris works with regional and national brokerage firms defending professional liability claims and handling disputes with insurance companies throughout the mid-Atlantic region, as well as with commercial insurance carriers defending allegations of bad faith.

Mr. Leise may be contacted at leisec@whiteandwilliams.com


Rather Than Limit Decision to "That Particular Part" of Developer's Policy Necessary to Bar Coverage, 10th Circuit Renders Questionable Decision on Exclusion j(6)

Red block amidst white blocks

The underlying dispute concerned a land developer, HT Services, LLC, who was sued by the homeowner’s association (“HOA”) of one of its developments.

September 6, 2021
William S. Bennett - Saxe Doernberger & Vita, P.C.

The 10th Circuit Court of Appeals, applying Colorado law, recently extended Colorado’s broad application of the phrase “arising out of” in insurance interpretation, barring an insured real estate developer from receiving a defense to a suit alleging liability for construction of a defective retaining wall and associated resulting damage.1 The decision also included a questionable analysis of the commercial general liability (“CGL”) policy’s exclusion j(6), contradicting both the plain meaning of the exclusion as well as existing 10th Circuit case law.

The underlying dispute concerned a land developer, HT Services, LLC, who was sued by the homeowner’s association (“HOA”) of one of its developments. The HOA alleged that HT Services negligently designed and constructed a retaining wall in the community. HT Services had CGL policies from Western Heritage Insurance Company in place from 2010 to 2013 that insured it for liability associated with four acres of land that the community was built upon.

HT Services tendered the HOA’s lawsuit to Western Heritage, which declined to defend and indemnify HT Services. After that matter settled, HT Services sued Western Heritage, alleging breach of contract and bad faith. Western Heritage moved for summary judgment, asserting two exclusions, and the District Court granted the motion in Western Heritage’s favor. In upholding the District Court’s decision, the 10th Circuit discussed two exclusions that the District Court determined precluded coverage.

Mr. Bennett may be contacted at wsb@sdvlaw.com


The Reptile Theory in Practice

Green lizard

The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.

September 6, 2021
Nicholas P. Hurzeler - Lewis Brisbois

The “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages. The plaintiff’s attorney will seek to activate the jurors’ “survival mode” instincts by presenting the defendant’s conduct as highly dangerous and worthy of punishment. The defendant’s conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.

The term “Reptile Theory” originated in the writings of nuero-physiologist Paul D. MacLean in the 1950s, who suggested that one major part of the brain consisted of a “reptilian complex” that controlled instinctive behaviors involved in aggression, dominance, and territoriality. Then in the 2009 publication “Manual of the Plaintiff’s Revolution” by David Ball and Don Keenan, the authors first described the “Reptile Theory” in the context of litigation. Since then it has become a hot topic in litigation as defense counsel develop methods to combat “Reptile” tactics resulting in runaway jury awards.

Mr. Hurzeler may be contacted at Nicholas.Hurzeler@lewisbrisbois.com


As Fracture Questions Remain, Team Raced to Save Mississippi River Bridge

Hands joined in team let's go gesture

A team of Michael Baker International, HNTB and Kiewit scrambled to implement permanent repairs for the bridge linking Tennessee and Arkansas.

September 6, 2021
Jim Parsons - Engineering News-Record

"How is this bridge still standing?”
That was the initial reaction of Aaron Stover, Michael Baker International’s vice president and regional bridge practice lead, as he first studied images of a fractured tie beam that forced the May 11 emergency shutdown of the I-40/Hernando de Soto Bridge between Tennessee and Arkansas. Discovered by chance earlier in the day during MBI’s routine above-deck inspection, the fracture on the bridge’s eastbound span affected nearly half the cross-section of a 26-in. by 33-in. welded girder supporting one of the 50-year-old structure’s 900-ft-long, 100-ft-high arched navigation spans across the Mississippi River.

Reprinted courtesy of Jim Parsons, Engineering News-Record

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

Read the full story...


ACS Recognized by Construction Executive Magazine in the Top 50 Construction Law Firms of 2021

Best Practice Puzzle Piece

Construction Executive ranked ACS number 31 among the top 50 construction practices in the country.

September 6, 2021
Ahlers Cressman & Sleight PLLC

ACS is pleased to announce that the firm has been recognized by Construction Executive magazine in The Top 50 Construction Law Firms™ for 2021. Construction Executive ranked ACS number 31 among the top 50 construction practices in the country.

ACS is known for our depth of knowledge of the construction industry and experience in construction law. Our lawyers hold leadership positions within state and national industry organizations. Two of our lawyers are past chairs of the Washington State Bar Association’s Construction Law Section and the current chair, five of our lawyers have served as the Chair of the Associated General Contractors of Washington’s Legal Affairs Committee, and the majority of our lawyers are recognized as Super Lawyers and Rising Stars in Super Lawyers Magazine/Thomson Reuters.

Since it was first published in 2003, Construction Executive has become the leading trade magazine for news, market developments, and business issues impacting the construction industry. The magazine reaches more than 55,000 commercial, industrial, and institutional contractors and construction-related business owners. Each issue of Construction Executive includes articles designed to help owners and top managers run a more profitable and productive construction business.


CLM Construction Conference

September 6, 2021
Beverley BevenFlorez – CDJ Staff

The annual conference “covers all aspects of insurance, risk, and claims management aspects of the insurance related to the construction industry” and addresses construction defects as well as construction site accidents and injuries. It opens with a cocktail reception on Wednesday, followed by a full day of Sessions as well as another Cocktail Reception, and concludes on Friday with a half-day of sessions.

September 22nd-24th, 2021
Marriott Marquis San Diego Marina
333 West Harbor Drive
San Diego, California 92101


Maybe California Actually Does Have Enough Water

California bear flag

When a state has successfully defied nature and geography for so long, it seems unwise to presume the end is near.

September 6, 2021
Francis Wilkinson - Bloomberg

It’s hard to know how much to panic over California’s dwindling water supplies. The state has never really had enough water, after all, yet lawns in Beverly Hills somehow remain perpetually green. Earlier this month, however, came a sign that life might soon be getting more uncomfortable for more Californians.

On Aug. 3, the State Water Resources Control Board voted 5 to 0 to issue an “emergency curtailment” order for the Sacramento-San Joaquin Delta watershed. Last week the order was submitted to the state’s Office of Administrative Law, which is likely to approve it.

The watershed covers about 40% of the state, stretching roughly from Fresno to Oregon, and is California’s largest source of surface water. About 5,700 holders of water rights, largely in agriculture and business, will be affected by the reduction in water access. Although many farms have already drawn most of the water they need for the season, the board’s move was a sign that ancestral water rights won’t be a guarantee of actual water if drought persists.


Sam Zell Partners With Toll on $1.9 Billion Apartment Deal

September 6, 2021
Craig Giammona - Bloomberg

Sam Zell’s Equity Residential and the luxury homebuilder Toll Brothers Inc. have formed a partnership to develop apartments, looking to deploy $1.9 billion to take advantage of the surging demand for rentals.

The two companies will invest about $750 million in equity, plus additional debt, over the next three years to develop projects in Boston, Seattle, Atlanta Austin, Denver, Dallas-Fort Worth and the San Diego area, according to a statement on Tuesday.


Proposed Bill Provides a New Federal Tax Credit for the Conversion of Office Buildings

Proposal with green check

The Revitalizing Downtowns Act (S. 2511) would provide a federal tax credit equal to 20 percent of “qualified conversion expenditures” with respect to a “qualified converted building.”

September 6, 2021
Emily K. Bias & Brittany Griffith - Gravel2Gavel Construction & Real Estate Law Blog

At the end of July 2021, a bill was introduced in the House and Senate, which, if enacted, would create a federal tax credit to fund the conversion of unused office buildings into residential, commercial, or mixed-use properties. The Revitalizing Downtowns Act (S. 2511), which is modeled after the federal historic rehabilitation tax credit, would provide a federal tax credit equal to 20 percent of “qualified conversion expenditures” with respect to a “qualified converted building.”

A “qualified converted building” means any building that (i) was nonresidential real property for lease to office tenants, (ii) has been “substantially converted” from an office use to a residential, retail, or other commercial use, (iii) in the case of conversion to residential units, is subject to a state or local affordable housing agreement or has at least 20 percent of the units rent restricted and set aside for tenants whose income is 80 percent or less of area median gross income, (iv) was initially placed in service at least 25 years before the beginning of conversion, and (v) may be depreciated or amortized.

Reprinted courtesy of Emily K. Bias, Pillsbury and Brittany Griffith, Pillsbury
Ms. Bias may be contacted at emily.bias@pillsburylaw.com
Ms. Griffith may be contacted at brittany.griffith@pillsburylaw.com


On-Site Supersensing and the Future of Construction Automation – Discussion with Aviad Almagor

Robot holding screwdriver

The on-site implementation of robotics and AI-based solutions, the importance of data capture, and the challenges facing the sector today and in the years ahead.

September 6, 2021
Aarni Heiskanen - AEC Business

For this episode of WDBE Talks, we sat down with Aviad Almagor of Trimble Ltd. to discuss sensor technology in the modern built environment. Our conversation touched on the on-site implementation of robotics and AI-based solutions, the importance of data capture, and the challenges facing the sector today and in the years ahead.

Aviad Almagor is the Division Vice President of Emerging Technologies with Trimble Ltd., a California-based hardware, software, and tech company that specializes in the development of Global Navigation Satellite Systems (GNSS) and recently collaborated with Boston Dynamics to automate construction processes.

“AI in construction is a very exciting topic though the industry is traditionally not very well-equipped to adopt technology in a very effective way. AI is an enabling technology that can be used to support and augment work. This means we can automate processes; predict delays in schedule; cost changes; even design issues and prescribe and provide decision-makers with the right information to be efficient and to make the right choices for projects.” Aviad noted in our interview.

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


Senate-Passed Infrastructure Bill Would Give Disaster Resilience Loan Fund $500 Million

September 6, 2021
Annemarie Mannion - Engineering News-Record

The $1.2-trillion infrastructure bill recently approved by the U.S. Senate includes $500 million for a revolving loan fund created earlier this year that would allow cities and other municipalities nationwide to pay for projects that improve resiliency against floods, hurricanes and other natural disasters.

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


Create a Culture of Safety Within a Construction Company

September 6, 2021
Kevin Cargill - Construction Executive

Construction work is inherently dangerous, so creating a culture of safety throughout a construction organization is critical. Safety should not be something that is addressed only when accidents happen or leading up to OSHA inspections. It is a crucial component of a successful workplace and everyone involved in a construction job should treat it that way.

When construction company owners, leadership and partners treat safety as an essential part of each day’s work, risk decreases and productivity increases. Creating a culture of safety, then, means that every team member is responsible for a safe jobsite. Whether an employee has boots on the ground or is managing from an office, safety must be top-of-mind.

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


When is an Indemnification Provision Unenforceable?

Red question mark amidst white question marks

What language of indemnification provisions make them unenforceable?

September 6, 2021
Christopher G. Hill - Construction Law Musings

Virginia Code Sec. 11-4.1 makes indemnification provisions in construction contracts that are so broad as to indemnify the indemnitee from its own negligence unenforceable. Of course, this begs the question as to what language of indemnification provisions make them unenforceable.

A case from the City of Chesapeake Virginia Circuit Court examined this question. In Wasa Props., LLC v. Chesapeake Bay Contrs., Inc., 103 Va. Cir 423 [unfortunately I can’t find a copy to which to link], Wasa Properties (“Wasa”) hired Chesapeake Bay Contractors (“CBC”) to perform utility work at Lake Thrasher in the Tidewater area of Virginia. Wasa then alleged that CBC breached the contract and caused over $400,000 in damages due to incorrectly installed water lines. Wasa used the following indemnification language as the basis for its suit:

To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and his agents and employees from and against all claims, damages, losses, and expenses, including but not limited to attorney’s fees arising out of or resulting from the performance of the Work.

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


How the Pandemic Pushed the Construction Industry Five Years Into the Future

Sign with future and past

What made an industry that’s arguably about 20 years in the past get a dramatic technology boost five years into the future?

September 6, 2021
Alexandra McManus & Hussein Cholkamy - Construction Executive

On any given day, there are a multitude of variables playing out on construction jobsites, from maintaining daily logs to track hundreds of workers to creating daily schedules to keep projects on track. What made an industry that’s arguably about 20 years in the past get a dramatic technology boost five years into the future? A global pandemic that nobody saw coming.

When COVID-19 made its first appearance on construction sites in early 2020, the domino effect of project shutdowns and labor shortages created uncertainty along with budget and timeline nightmares. The pandemic shook up the industry, with many projects coming to a screeching halt. As general contractors scrambled to keep their projects moving and workers safe, technology proved to be the solution.

With jobsites shutting down, coupled with a nationwide labor shortage, real-time visibility over workforce variables, such as who was on-site, where they were and who they interacted with was more important than ever. Safe proximity tracking, virtual density and access control technologies helped construction companies gain more control, visibility and the ability to deal with the ever-changing regulations due to the global pandemic. More importantly, it helped keep their valuable workforce safe.

Reprinted courtesy of Alexandra McManus & Hussein Cholkamy, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Cholkamy may be contacted at hussein@eyrus.com
Ms. McManus may be contacted at alex@eyrus.com


New York Court Rejects Owner’s Bid for Additional Insured Coverage

Red reject keyboard button

The decision is a notable illustration that mere allegations of the named insured’s work at the site will not always suffice to trigger a defense for the tendering party.

September 6, 2021
Eric D. Suben - Traub Lieberman

Tenders for additional insured coverage in construction accidents are frequently litigated in New York courts. Although the past few years have seen changes in the law regarding the causal nexus between the named insured’s work and coverage for the purported additional insured, courts often find there is at least a duty to defend the additional insured where there are allegations of the employer/subcontractor’s presence at the site.

An exception is the recent decision in Gemini Insurance Company v. Certain Underwriters at Lloyd’s, London, Index No. 652669/20 in the Supreme Court of the State of New York, County of New York (Lebovits, J.). In that case, Gemini insured the owner and general contractor of a construction project, and Lloyd’s insured the injured claimant’s employer under a policy endorsed to provide additional insured coverage to entities who “have agreed in writing in a contract or agreement” with the named insured that they must be “added as additional insured.” Although the court found that the contracts here satisfied this requirement for additional insured coverage, the court’s analysis did not end there.

Noting that even where such contract exists, the Lloyd’s policy would not provide additional insured coverage “in all circumstances” (emphasis in original), the court next considered whether the underlying injury was “caused in whole or in part by: 1. [The named insured’s] acts or omissions, or 2. The acts or omissions of those acting on [the named insured’s] behalf,” as required under the endorsement’s wording.

Mr. Suben may be contacted at esuben@tlsslaw.com



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