CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - MONDAY, DECEMBER 30, 2024

Magnifying glass over evidence

A steel collapse occurred at the construction site.

Construction Defect Claim Survives Insurer's Summary Judgment Motion Due to Lack of Evidence

December 23, 2024
Tred R. Eyerly - Insurance Law Hawaii

The court denied the insurer's motion for summary judgment on a construction defect claim due to lack of evidence. Statesboro Erectors, Inc. v. Owners Ins. Co., 2024 U.S. Dist. LEXIS 176555 (N.D. Ga. Sept. 30, 2024).

Griffco was the general contractor for a construction project. King Steel was hired as the "steel fabricator." King Steel subcontracted with Statesboro Erectors to complete certain construction work at the site. Statesboro agreed to the complete, proper and safe erection of the structural steel.

A steel collapse occurred at the construction site. According to King Steel, the collapse "appeared to have occurred due to lack of temporary cables or bracing for steel columns." Because of the collapse, King Steel was required to supply additional materials to replace the structural damage caused by the collapse.

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

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

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CDJ NEWS THIS WEEK

Woman with calculator and laptop

This case involved a water loss to the Pennsylvania residence of Mikyung Kim and her husband Adrian Kim that was discovered in April 2021.

Do You Have the Receipt? Pennsylvania Court Finds Insufficient Evidence That Defendant Sold the Product

December 23, 2024 — Gus Sara - The Subrogation Strategist

In State Farm Fire & Cas. Co. v. Coway USA, Inc., No. 22-cv-3516, 2024 U.S. Dist. LEXIS 192849, the United States District Court for the Eastern District of Pennsylvania (District Court) considered whether the plaintiff produced sufficient evidence to establish that the defendant sold and/or marketed a product and, thus, could be held liable for an alleged defect in the product. The plaintiff, a subrogating insurance carrier, brought strict product liability and breach of warranty claims against the defendant—the installer of a bidet in its insured’s home—claiming that the defendant also marketed and sold the bidet. The sole evidence to support a finding that the defendant sold the bidet was the homeowner’s testimony that she bought the product from the installer. The court found that the insured’s testimony, without any documentation or other corroborating evidence, was insufficient to establish that the defendant sold the product. Since proof of a sale is a required element for strict product liability and breach of warranty claims, the District Court granted the defendant’s motion for summary judgment, dismissing the case.

This case involved a water loss to the Pennsylvania residence of Mikyung Kim and her husband Adrian Kim (collectively, the Kims) that was discovered in April 2021. An investigation revealed that the water loss originated from the failure of a bidet for a toilet in the second-floor bathroom. The Kims alleged that defendant, Coway USA, Inc. (Coway), sold the bidet and installed it around 2010. An employee of the plaintiff’s liability expert, a materials engineer, opined that a T-connector—a plastic valve that regulates the flow of water to and through the bidet—failed due to overtightening of the connector during the manufacturing process.

Mr. Sara may be contacted at sarag@whiteandwilliams.com

Reprinted courtesy of Gus Sara, White and Williams

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Statute

Following a lightning strike in early 2022 that damaged electrical infrastructure at the site, EDT dispatched Turn Key Utility Construction to repair the damage.

BKV Barnett, LLC v. Electric Drilling Technologies, LLC: Analyzing the Impact of Colorado’s Anti-Indemnification Statute

December 23, 2024 — David M. McLain – Colorado Construction Litigation Blog

In the recent case of BKV Barnett, LLC v. Electric Drilling Technologies, LLC, the United States District Court for the District of Colorado dealt with significant legal issues concerning indemnification and insurance obligations in construction agreements. The ruling, handed down on September 26, 2024, serves as a crucial reminder of the limitations imposed by Colorado’s Anti-Indemnification Statute, C.R.S. § 13-21-111.5, and its implications for contracts in the construction industry.

This case arose from a Master Service Contract (“MSC”) between BKV Barnett, LLC (“BKV”) and Electric Drilling Technologies, LLC (“EDT”), in which EDT provided electrical services and equipment to an oil and gas lease wellsite in Texas. Following a lightning strike in early 2022 that damaged electrical infrastructure at the site, EDT dispatched Turn Key Utility Construction to repair the damage. During the repair work, an arc flash occurred, causing significant injuries to one of Turn Key’s employees, Matthew Lara, leading to a personal injury lawsuit filed by Lara in Dallas County, Texas. BKV sought indemnification, defense, and additional insured status from EDT under the terms of their MSC, which EDT contested.

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

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

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Reject document

If you, as a contractor, bid on a contract and no award is given to anyone bidding on the project, the Virginia courts will not hear your cries.

Rejection’s a Bear- Particularly in Construction

December 23, 2024 — Christopher G. Hill - Construction Law Musings

As I read through this week’s cases published in Virginia Lawyers Weekly, I came across a case posing an interesting question. The question is, “If your bid is rejected along with everyone else’s, can you complain?” The short answer set out by the Rockingham County, Virginia Circuit Court is “No.” In the case of General Excavation v. City of Harrisonburg the Court looked at the Virginia Public Procurement Act’s bid protest provisions in Va. Code 2.2-4360 and 2.2-4364(C) in the context of General Excavation’s protest of the City’s failure to award it (or anyone else for that matter) the contract on which it was the low bidder. The controlling section of the statute allows a challenge to the award or proposed award of a contract.

In defending the action, the City of Harrisonburg argued that, because the Procurement Act waived some of the city’s sovereign immunity, it must be read strictly. The city further argued (somewhat ironically) that, because no award of the contract was given or even proposed, General Excavation could not bring suit because it would not be challenging the “proposed award or award” of a contract. Not surprisingly, the Rockingham County court held with the City and strictly construed the statute against General Excavation in finding that General Excavation did not have the standing necessary to bring suit under the statute.

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

Reprinted courtesy of The Law Office of Christopher G. Hill

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Office building

Developer may agree to transfer ownership of the buildings.

Seattle Developer Defaults on Renovated Office Buildings

December 23, 2024 — Anna Edgerton - Bloomberg

A major developer in downtown Seattle defaulted on a loan backed by two of its most prized office properties, including one that formerly housed a branch of the Federal Reserve Bank of San Francisco.

Firms tied to Martin Selig Real Estate are in default on a more than $200 million loan, according to letters from lender Acore Capital dated Nov. 15 that were filed in Washington’s King County. The buildings would change ownership 30 days after that notice if no other action is taken, according to the letters.

Reprinted courtesy of Anna Edgerton, Bloomberg

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News on cell phone

Pillsbury's Real Estate and Construction Law Team discusses recent industry news.

Real Estate & Construction News Roundup (12/4/24) – Highest Rate of Office Conversions, Lending Caps for Fannie Mae and Freddie Mac and Affordability Challenges for Homebuyers

December 23, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

In our latest roundup, infrastructure-related ballot initiatives, U.S. Green Building Council’s success stories, support for sustainable building, and more!

  • 2024 is expected to see the highest rate of office conversions since CBRE began tracking them in 2016. (Nish Amarnath, SmartCities Dive)
  • The Federal Housing Finance Agency has established lending caps of $73 billion each for Fannie Mae and Freddie Mac, allowing them to purchase a total of up to $146 billion in multifamily loans in 2025. (Leslie Shaver, Multifamily Dive)
  • A number of infrastructure-related initiatives with the potential to impact facilities managers were on the ballot during the 2024 U.S. presidential election. (Joe Burns, Construction Dive)

Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Testifying Construction and Building Industry Standard of Care Expert Witness

General Construction Investigation - Licensed General Building Contractor CA, AZ, UT, FL

Certified Professional Estimator (ASPE) American Society of Professional Estimators

Extensive testimony experience attendant to numerous commercial and residential construction defect and claims related expert witness designations

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Money bag

While China remains a complex market for U.S. design and architecture firms, strategic planning, regulatory compliance, and collaboration with local partners can safeguard their interests while unlocking significant opportunities.

How U.S. Design and Architecture Firms Can Profit from the Chinese Market and Avoid Pitfalls

December 23, 2024 — Chengdong ("C.D.") Xing - The Dispute Resolver

Despite recent challenges, including obvious political tensions, economic cooling in the PRC, and increased local competition, the Chinese market remains an attractive destination for U.S. design and architecture firms. For instance, PEI Architects has maintained its success in China through long-standing relationships with key clients and is currently involved in two major projects for the Bank of China: a 1.9 million-square-foot complex in Shanghai and a financial center in Haikou.[i] Similarly, NBBJ is playing a critical role in the development of Tencent’s Net City in Shenzhen, a 2-million-square-meter smart city project that aligns with China's goals of sustainable and tech-driven urbanization.[ii] These examples show that while the Chinese market presents challenges, it continues to offer significant opportunities, particularly in sectors where innovative and cutting-edge architectural solutions are in high demand. At the same time, U.S. firms should exercise care: proper advance planning and strategic alliances are crucial for profitable forays into the Chinese market.

JR Design Project: A Cautionary Tale
When operating in China, U.S. design firms often encounter regulatory challenges, particularly with respect to China’s strict qualification requirements for architectural design services. Failure to meet these requirements can result in serious legal issues, including the potential invalidation of design contracts, as demonstrated in a leading case decided by the Supreme People’s Court of PRC (the nation’s highest court).

Mr. Xing may be contacted at chengdong.xing@rajahtann.com

Reprinted courtesy of Chengdong ("C.D.") Xing, Rajah & Tann Singapore LLP

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Win!

The property owner and the two fire-system protection companies each asserted cross-claims against each other.

Traub Lieberman Attorneys Lisa M. Rolle and Justyn Verzillo Win Motion for Summary Judgment

December 23, 2024 — Lisa M. Rolle & Justyn Verzillo - Traub Lieberman

In this subrogation action brought in the Supreme Court of the State of New York, Dutchess County, Traub Lieberman attorneys Lisa M. Rolle and Justyn Verzillo successfully obtained dismissal of a third-party complaint against their client, a fire-system protection company. In the underlying case, a fire sprinkler system within a commercial building leaked water into multiple tenant spaces, causing damage. The tenants’ insurers alleged that they each paid several hundred thousand dollars to cover their insureds’ claims. The insurers then filed complaints against the company which originally installed the sprinkler (the “Installer”), asserting that the company breached its duty of care. The Installer commenced a third-party action against the property owner and two fire-system protection companies—including Traub Lieberman’s client—who had separately conducted annual inspections of the sprinkler system over the years. The property owner and the two fire-system protection companies each asserted cross-claims against each other.

Reprinted courtesy of Lisa M. Rolle, Traub Lieberman and Justyn Verzillo, Traub Lieberman

Ms. Rolle may be contacted at lrolle@tlsslaw.com
Mr. Verzillo may be contacted at jverzillo@tlsslaw.com

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Good Better Best Arrow Up

GRSM received 174 "Tier 1, 2, and 3" rankings at the national and regional levels throughout the country.

GRSM Named Among 2025 “Best Law Firms” by Best Lawyers

December 23, 2024 — Gordon Rees Scully Mansukhani

Gordon Rees Scully Mansukhani has been recognized in the 2025 "Best Law Firms" survey published by Best Lawyers.

To be eligible for a 2025 ranking, a law firm must have at least one lawyer recognized in the 2025 edition of the Best Lawyers in America in a "Best Law Firms" practice area and geographic jurisdiction. GRSM announced earlier this year that 166 lawyers were recognized in the 2025 edition of Best Lawyers in America®, while 74 lawyers were named to the 2025 edition of Best Lawyers: Ones to Watch. Explore the full list of GRSM recognized attorneys.

No aspect of this advertisement has been approved by the Supreme Court of New Jersey. Prior results do not guarantee a similar outcome. For details about Best Law Firms' methodology, please click here.

The firm received National "Tier 1" rankings in the following areas:

  • Admiralty and Maritime Law
  • Commercial Litigation
  • Construction Law
  • Insurance Law
  • Litigation – Construction
  • Mass Tort Litigation / Class Actions – Defendants

Reprinted courtesy of Gordon Rees Scully Mansukhani

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Judge signing document

The action concerned rent allegedly due and owing under a commercial lease by the lease’s tenant and guarantors.

In Appellate Division First, New York Appellate Team Successfully Invokes “Party Finality” Doctrine to Obtain Dismissal of Appeal for Commercial Guarantors

December 23, 2024 — Dean Pillarella - Lewis Brisbois

New York, N.Y. (November 20, 2024) - In Roc-Le Triomphe Associates, LLC v. DeSouza, 2024 NY Slip Op 05654 (1st Dep’t 2024), Associate Dean Pillarella, a member of the Appellate Practice, successfully invoked the party finality doctrine to obtain the dismissal of an appeal for the firm’s commercial guarantor clients.

The action concerned rent allegedly due and owing under a commercial lease by the lease’s tenant and guarantors. Pursuant to a 2022 order, the guarantors were awarded summary judgment and dismissal of all claims against them, with the landlord’s claims against the tenant left intact. After the decision and order was served with notice of entry by the prevailing party, the landlord did not file a notice of appeal from the order but, instead, filed a notice of appeal from a later judgment months after the time to appeal the order had expired.

Mr. Pillarella may be contacted at Dean.Pillarella@lewisbrisbois.com

Reprinted courtesy of Dean Pillarella, Lewis Brisbois

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Shoreline

The Apalachicola Bay Living Shoreline/Franklin 98 project aims to bolster the resilience of six miles of Florida Highway 98, a designated Hurricane Evacuation Route that has consistently seen damage—and required costly repairs—following storm events.

Wave Breaker: How a Living Shoreline Will Protect a Florida Highway and Oyster Bed

December 23, 2024 — Derek Lacey - Engineering News-Record

A living shoreline being constructed in the Florida Panhandle's Apalachicola Bay is protecting a critical local highway, while fostering marsh areas and oyster habitat that’s seen years of decline.

Mr. Lacey may be contacted at laceyd@enr.com

Reprinted courtesy of Derek Lacey, Engineering News-Record

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AI Technology

A few key areas where Trimble has doubled down on AI, with the goal of making contractors’ jobs less cumbersome and repetitive, safer and more capable of being upskilled—efforts which will only continue to grow in the coming years.

The Benefits of Incorporating AI Into the Construction Lifecycle

December 23, 2024 — Ian Warner - Construction Executive

Interest in artificial intelligence has been spreading like wildfire over the past few years. AI is not a new term for Trimble, which has been capturing and leveraging construction data for decades. From hardware to software, the field to the office or among stakeholders, harnessing and making meaning out of data is the crux of Trimble’s business. Generative AI is simply a new set of tools that provide a richer narrative around data, making it more insightful and actionable.

As a company that helps connect stakeholders across the entire construction lifecycle—design, construction and operations/ maintenance—AI has been woven in and leveraged across a number of Trimble solutions to help contractors do more with less, while also giving them greater decision-making power and the ability to focus on other key challenges.

While the use cases for AI are diverse and ever-changing, below are a few key areas where Trimble has doubled down on AI, with the goal of making contractors’ jobs less cumbersome and repetitive, safer and more capable of being upskilled—efforts which will only continue to grow in the coming years.

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

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Civil engineer on site

Grades across 14 categories range from 'C+' for Rail to 'D' for Schools, Stormwater.

Civil Engineers: Montana's Infrastructure Grade Declines to a 'C-'

December 23, 2024 — American Society of Civil Engineers

Helena, MT — The Montana Section of the American Society of Civil Engineers (ASCE) today released the 2024 Report Card for Montana's Infrastructure, assigning 14 categories of infrastructure a cumulative grade of 'C-', which is on par with the national average from the 2021 Report Card for America's Infrastructure. This is a one-notch decrease from the 'C' grade Montana received in its last report in 2018, citing increasingly severe weather events putting strain on aging and underfunded assets, and one of the fastest growing populations requiring expansions of transportation, water and energy infrastructure.

The report includes the first-ever chapter on Montana's broadband infrastructure, assigning an 'I' grade for 'incomplete' due to a lack of sufficient condition data; however, the chapter does note that 71% of Montana residents have access to adequate broadband service, and the IIJA provided nearly $630 million to expand this access across the state.

ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 160,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.

Consulting Design and Architecture Expert Witness

Forensic Architect CA, AZ, NV, CO, TX, UT, FL, NM, OK - NCARB - National Council of Architectural Registration Boards

California Architectural Registration Board Supplemental Examination Commissioner

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Exterior Condo building

Florida Developers Rush to Meet Demand for Newly Built Condos

December 23, 2024 — Paulina Cachero & Natalie Wong - Bloomberg

South Florida has a condo problem: too many old units that no one wants to buy, and too few newer, affordable ones. Some developers are changing plans to help shift the balance.

GCF Development is converting a 5-year-old rental tower in Hollywood to condos, even after leasing 90% of the apartments. A recently completed rental project near Fort Lauderdale was taken over by an investor that’s selling the units as condos instead. A partnership just secured financing for a condo conversion in Pompano Beach.

Reprinted courtesy of Paulina Cachero, Bloomberg and Natalie Wong, Bloomberg

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Forecast chart

2025 Forecast: Rate Cuts Expected to Boost Construction

December 23, 2024 — Alisa Zevin - Engineering News-Record

As interest rates finally begin to ease, economists are fairly optimistic about how the overall construction market will fare in the coming year.

Ms. Zevin may be contacted at zevina@enr.com

Reprinted courtesy of Alisa Zevin, Engineering News-Record

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Leadership meeting

Executive Insights 2024: Leaders in Surety Bonding

December 23, 2024 — Construction Executive

In an uncertain economy, why is it important for contractors to increase their capitalization in order to maintain surety credit?
Brock Masterson
COO – Surety Division
Crum & Forster
Surety Division

Even the best contractors can’t foresee every challenge throughout the life cycle of a construction project. Supply-chain delays, cost inflation, unexpected change orders and contractual claims can wreak havoc on project schedules, profitability and, perhaps most importantly, cash flows. Contractual dispute-resolution clauses often require contractors to continue working and performing their contracts during the claim-resolution process, regardless of ultimate responsibility. To the detriment of the contractor, this process often includes a combination of mediation and arbitration before proceeding to litigation. This can lead to contractors using their own capital to fund disputed work—potentially for years and many times without payment by responsible upstream parties. During the past year we have seen news coverage of numerous contractor failures due in part to liquidity problems caused by litigated contractual disputes. Contractors should build balance sheets that maintain sufficient capital and liquidity, so unexpected conflicts or cash-flow issues cannot impair the ability to pay bills as they become due. Establishing stable credit facilities to support unexpected cash-flow shortages on a short-term basis is a best practice. Firms should build strong relationships with bankers, attorneys, surety agents and surety carriers, as they can offer valuable insights on the best practices needed to overcome unexpected conflicts or cash-flow issues. A disciplined financial plan and trusted professional relationships can help contractors weather uncertain times.

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

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Seminar

Insurance Law in California Seminar

December 23, 2024 — Beverley BevenFlorez – CDJ Staff

The Seminar Group presents a conference that “offers a high-level overview of the top issues shaping today’s insurance marketplace, going beyond the usual subjects to deliver fresh, relevant content.” Topics will include cyber insurance, mediation strategies, reinsurance and California fire coverage. The faculty will “tackle the most pressing challenges facing the industry.”

January 17th, 2025
Marina del Rey Marriott
4100 Admiralty Way
Marina del Rey CA, 90292

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