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CONSTRUCTION DEFECT NEWS
Analysis

Tred R. Eyerly discusses how Connecticut courts have faced a rash of collapse cases as a result of cement provided to build house foundations by J.J. Mottes Concrete Co.

Connecticut Supreme Court Again Asked to Determine the Meaning of Collapse

Monday, August 20, 2018 — Tred R. Eyerly - Insurance Law Hawaii

Faced with a series of policies, earlier ones which did not define collapse, newer policies which did, the court determined there was a possibility of coverage under the older policies which did not define collapse. Vera v. Liberty Mut. Fire Ins. Co., 2018 U.S. Dist. LEXIS 100548 (D. Conn. June 15, 2018).

Connecticut courts have faced a rash of collapse cases as a result of cement provided to build house foundations by J.J. Mottes Concrete Co. Many basement foundations built with the concrete have shown cracking and other signs of premature deterioration.

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

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

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Clocks

The Supreme Court of Utah addressed the question of whether the plaintiff’s construction defects claims against the general contractor for a construction project were timely-filed, or barred by the statute of repose.

Utah’s Highest Court Holds That Plaintiffs Must Properly Commence an Action to Rely on the Relation-Back Doctrine to Overcome the Statute of Repose

Monday, August 20, 2018 — Shannon M. Warren - The Subrogation Strategist

Earlier this summer, in Gables & Villas at River Oaks Homeowners Ass’n v. Castlewood Builders LLC, 2018 UT 28, the Supreme Court of Utah addressed the question of whether the plaintiff’s construction defects claims against the general contractor for a construction project were timely-filed, or barred by the statute of repose. In Utah, the statute of repose requires that an action be “commenced within six years of the date of completion.” The plaintiff alleged that its 2014 amended complaint naming the general contractor as a defendant was timely-commenced because, before the date on which Utah’s statute of repose ran, a defendant filed a motion to amend its third-party complaint to name the general contractor as a defendant, and the defendant subsequently assigned its claims to the plaintiff. The plaintiff argued that the filing of its 2014 amended complaint related back[1] to the date of its original complaint. The Supreme Court disagreed, holding that an action is “commenced” by filing a complaint and that a motion for leave to amend does not count as “commencing” an action.

Reprinted courtesy of Shannon M. Warren, White and Williams LLP

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

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Choice on dart board

Grace V. Hebbel of Saxe Doernberger & Vita, P.C. analyzes the case Ontario, Inc. v. Samsung C&T Corp.

New York Court of Appeals Addresses Choice of Law Challenges

Monday, August 20, 2018 — Grace V. Hebbel - Saxe Doernberger & Vita, P.C.

In June, the New York Court of Appeals examined the application of a New York Choice of Law provision in a contract – a determinative issue for the case. In Ontario, Inc. v. Samsung C&T Corp., the issue was whether the plaintiff’s claims were subject to Ontario, Canada’s 2-year statute of limitations or New York’s 6-year statute of limitations for breach of contract where the contract contained a broad New York Choice of Law provision. The court found that pursuant to New York’s borrowing statute, Ontario’s more restrictive statute of limitations applied. The action was dismissed as time-barred, serving as a harsh reminder of the potential effects of choice of law and limitations periods.

The suit arose out of the following facts. In 2008, an Ontario renewable energy developer, SkyPower Corp. (“SkyPower”), entered into a Non-Disclosure Agreement (NDA) with the defendants which allowed the defendants to review SkyPower’s confidential and proprietary information. The review was conditioned on restricted disclosure and the requirement that the information would be destroyed after review.

Reprinted courtesy of Grace V. Hebbel, Saxe Doernberger & Vita, P.C.

Ms. Hebbel may be contacted at gvh@sdvlaw.com

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Construction Volume and Skills Shortages Rise Globally

August 15, 2018 — Joanna Masterson - Construction Executive

Global construction activity is increasing—with the exception of a notable reduction in the United Kingdom—but the industry faces more work with fewer workers, according to Turner & Townsend’s 2018 International Construction Market Survey.

Of the 46 markets examined, 21 are expected to warm up, 23 are stable and only two are likely to cool off. Infrastructure stands out as the hottest sector for the future, followed by commercial construction.

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

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Arizona Upholds Assignment of Post-Loss Benefits

August 15, 2018 — Tred R. Eyerly - Insurance Law Hawaii

The Arizona Court of Appeals upheld the insured's assignment of benefits despite the policy's anti-assignment provision. Farmers Ins. Exchange v. Honorable David Udall, 2018 Ariz. Ct. App. LEXIS 94 (Ariz. June 12, 2018).

Farmers issued homeowners' policies to four homeowners who later required water damage mitigation and restoration services. Each of the policies included an anti-assignment provision stating that the insured's "interest in this policy may not be transferred o another person without [Farmers'] written consent." Each insured, however, signed a "Work Order Agreement & Assignment of Benefits" authorizing the remediation company, EcoDry Restoration of Arizona, LLC, to perform emergency water mitigation services and then assign insurance rights under the policies to EcoDry. The assignment authorized and instructed the insurance company to pay directly to EcoDry the amount shown in the final billing for work done by EcoDry.

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

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P3 Delivers Architect's Original Vision for Gateway Arch Park

August 15, 2018 — Jeff Yoders – Engineering News-Record

The largest public-private partnership investment in a national park is delivering a new experience for visitors to the landmark Gateway Arch in St. Louis, which was designed by the late-architect Eero Saarinen. The 10-year path to the opening this month was full of hurdles, including floods. And the project’s 46,000-sq-ft underground visitor center expansion needed to be built without shutting down the arch, which gets nearly 3 million visitors each year.

Mr. Yoders may be contacted at yodersj@enr.com

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NBI Construction Law: Ultimate Bootcamp Seminar

August 8, 2018 — Beverley BevenFlorez-CDJ STAFF

Attendees of this one-day seminar presented by the National Business Institute will learn the following: how to avoid future disputes by drafting and negotiating effective construction contracts; Disentangle construction project indemnity and insurance issues; Understand how to deal with unsatisfactory plans and specifications; Discover reasonable strategies for handling unavoidable disputes that may cause changes or delays; and Examine methods for approaching various payment issues associated with construction projects.

November 14th, 2018
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Beware under construction sign

Many lending agents require design professional to execute certifications that include representations and warranties that open design professional to exposure and potential liability that would not have existed otherwise.

Designed to Expose: Beware Lender Certificates

Monday, August 20, 2018 — Jacob Goodelman - Gordon & Rees Construction Law Blog

Danny the Developer wishes to build Greenacre, a large residential and retail condominium complex in downtown Boston. However, Danny’s lender – the Bank of Barbara – will not lend Danny the money to develop the complex unless Danny’s architect signs a lender certificate. Danny presents the lender certificate to Allie the Architect, the certificate is relatively short and simple, it states:

“Allie the Architect prepared plans and specifications relating to Greenacre. Allie the Architect certifies that the plans are in accordance with all applicable zoning, building, housing and other laws, ordinances, regulations including but not limited to the Federal Fair Housing Act, the Uniform Federal Accessibility Standards, and the Americans with Disability Act. The Plans do not encroach over, across or upon any such easements, rights-of-way, or subsurface rights and the like. Allie further certifies that the load bearing capacity of the soil is adequate to support the plans. The Bank of Barbara shall rely upon Allie the Architects certification in loaning money to Danny the Developer for Greenacre.”

Reprinted courtesy of Jacob Goodelman, Gordon Rees Scully Mansukhani

Mr. Goodelman may be contacted at jgoodelman@grsm.com

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Two businessmen working late

Brian Margolies of Traub Lieberman Straus & Shrewsberry LLP discusses the case Evanston Ins. Co. v. Yeager Painting, LLC.

Alabama Court Upholds Late Notice Disclaimer

Monday, August 20, 2018 — Brian Margolies - TLSS Insurance Law Blog

In its recent decision in Evanston Ins. Co. v. Yeager Painting, LLC, 2018 U.S. Dist. LEXIS 130316 (N.D. Ala. Aug. 3, 2018), the United States District Court for the Northern District of Alabama had occasion to consider an insured’s reporting obligations under a general liability policy.

Evanston’s insured, Yeager, was hired to sandblast water tanks, and in turn, subcontracted out the work to a third party. On May 19, 2012, an employee of the subcontractor was severely injured in connection with a work-site accident. It is not entirely clear when Yeager provided notice of occurrence to Evanston, although Evanston advised by letter dated January 30, 2013 that it would be further investigating the matter subject to a reservation of rights. Evanston subsequently denied coverage by letter dated April 10, 2013, the disclaimer based on a subcontractor exclusion on the policy. Notably, Evanston’s letter advised that Yeager should immediately contact Evanston if any facts changed or if it had any additional information concerning the matter.

Reprinted courtesy of Brian Margolies, Traub Lieberman Straus & Shrewsberry LLP

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

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Rushing water

This is a significant CWA and Endangered Species Act (ESA) decision involving the operation of major industrial facilities requiring the daily use of large amounts of water taken from adjacent bodies of water.

Second Circuit Denies Petitions for Review of EPA’s Final Regulations to Establish Requirements for Cooling Water Intake Structures

Monday, August 20, 2018 — Anthony B. Cavender - Gravel2Gavel

On July 23, 2018, the U.S. Court of Appeals for the Second Circuit decided the case of Cooling Water Intake Structure Coalition v. EPA. Environmental conservation groups and industry associations petitioned for review of a final rule promulgated by the U.S. Environmental Protection Agency (EPA) pursuant to section 316(b) of the Clean Water Act (CWA), establishing requirements for cooling water intake structures at existing facilities. Denying the petitions for review, the Court of Appeals summarized:

“Because we conclude, among other things, that both the Rule and the biological opinion are based on reasonable interpretations of the applicable statutes and sufficiently supported by the factual record, and because the EPA 3 gave adequate notice of its rulemaking, we DENY the petitions for review.”

This is a significant CWA and Endangered Species Act (ESA) decision involving the operation of major industrial facilities requiring the daily use of large amounts of water taken from adjacent bodies of water.

Reprinted courtesy of Anthony B. Cavender, Pillsbury

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

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CONSTRUCTION DEFECT NEWS
Dust from demolition

Health department data released last year showed elevated blood lead levels among children living in several areas where the dilapidated structures have been knocked down.

Health Officials Concerned About Lead-Tainted Dust Created by Detroit Home Demolitions

Monday, August 20, 2018 — Engineering News-Record

DETROIT (AP) — The nation's largest home-demolition program, which has torn down more than 14,000 vacant houses across Detroit , may have inadvertently created a new problem by spreading lead-contaminated dust through some of the city's many hollowed-out neighborhoods.

Reprinted courtesy of Engineering News-Record

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

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Three stick figures holding hands and reaching to another stick figure

Join is a smart platform that helps project teams collaborate more efficiently and effectively, whether as part of a project optimization process or throughout the entire project lifecycle.

Join: Computer Science Meets Construction

Monday, August 20, 2018 — Aarni Heiskanen - AEC Business

Increasingly, projects need to be optimized to create the most value for their clients and users. With the fragmented nature of project teams, decisions can be lost, communication sporadic, and information disjointed. In addition, the rapid pace of innovation means that it’s difficult – if not impossible – for architects and engineers to be aware of all the latest construction products and materials.

It is these problems that inspired the creation of Join. Join is a smart platform that helps project teams collaborate more efficiently and effectively, whether as part of a project optimization process or throughout the entire project lifecycle. The platform connects construction teams, pulls together different types of project information, and integrates manufacturing into construction.

Reprinted courtesy of Aarni Heiskanen, AEC Business

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

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Green facts key on keyboard

The California Contractor’s State License Board has put together a “Fast Facts” sheet to help online home improvement marketplaces navigate the ins and outs of contractor’s license requirements.

CSLB “Fast Facts” for Online Home Improvement Marketplaces

Monday, August 20, 2018 — Garret Murai - California Construction Law Blog

As more and more online home improvement marketplaces like Angie’s List come online, questions have arisen as to whether such online marketplaces must hold a contractor’s license. The California Contractor’s State License Board has put together a “Fast Facts” sheet to help online home improvement marketplaces navigate the ins and outs of contractor’s license requirements, salesperson requirements, and advertising requirements. The short answer is that these marketplaces do not need a contractor’s license as long as the customer is contracting directly with the listed contractors (not the marketplace). Here’s the slightly longer explanation:

July 20, 2018 CSLB #18-10

CSLB Hopes to Clear Up Confusion about License and Contracting Requirements for Online Home Improvement Marketplace Companies
SACRAMENTO
– Over the past few months, the Contractors State License Board (CSLB) has been addressing emerging issues involving online marketplaces and contractor referral websites. In its most basic form, online marketplaces are e-commerce websites that link consumers to products and/or services that are provided by multiple third parties. In these situations the e-commerce operator processes the transactions. Many referral websites charge contractors for leads.

Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP

Mr. Murai may be contacted at gmurai@wendel.com

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Construction Worker Killed in New Home Site

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CONSTRUCTION DEFECT NEWS
Building under construction

The LCA guide comes after the release of the first-of-its-kind benchmarking database of embodied carbon in existing buildings.

Primer Debuts on Life-Cycle Assessments of Embodied Carbon in Buildings

Monday, August 20, 2018 — Engineering News-Record

A recently released primer for the use of a life-cycle assessment approach to analyze the environmental impacts of buildings is considered a small but necessary step toward the ambitious goal of getting to net-zero embodied carbon and operational greenhouse gas emissions in the construction, operation and decommissioning of buildings. The LCA guide comes after the release of the first-of-its-kind benchmarking database of embodied carbon in existing buildings. And another first—a tool to calculate embodied carbon in construction—is on the horizon.

Reprinted courtesy of Engineering News-Record

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

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Summer house

In a market dictated by the whimsy of the grossly rich, parsing real value is tough—but not impossible.

The Cheapest Place to Buy a House in the Hamptons

Monday, August 20, 2018 — James Tarmy - Bloomberg

Figuring out how much a home is worth in a vacation destination is often an uphill battle.

Whereas normal property markets have prices that are tied closely to square footage, size of a lot, quality of a building, and its proximity to basic services, many of those calculations go out the window when it comes to a market comprised of second homes. “Nobody needs anything out here,” says Chris Foglia, a broker at the Hamptons-based Daniel Gale Sotheby’s International Realty. “They all want.”

Reprinted courtesy of James Tarmy, Bloomberg
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Wave crashing

Janus v. AFSCME decision could affect industry professionals represented by labor groups in 22 states.

Public-Employee Union Fees, Water Wars Are Key in High Court Rulings

Monday, August 20, 2018 — Jeff Yoders, Pam Radtke Russell, JT Long, and Debra K. Rubin - Engineering News-Record

Two U.S. Supreme Court rulings on June 27 that wrapped the court’s current case calendar addressed labor relations and water rights issues with construction sector impact. Its 5-4 decision in Janus v. AFSCME that public-sector employees can’t be forced to pay “fair-share fees” to unions could affect industry professionals represented by labor groups in 22 states.

Reprinted courtesy of ENR journalists Jeff Yoders, Pam Radtke Russell, JT Long and Debra K. Rubin
Mr. Yoders may be contacted at yodersj@enr.com
Ms. Russell may be contacted at Russellp@bnpmedia.com
Ms. Debra may be contacted at rubind@enr.com



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Word report on typewriter

A Special Inspector General for Afghanistan Reconstruction (SIGAR) Report finds over $15 billion in waste, fraud and abuse.

SIGAR Report Finds +$15 Billion in “Waste, Fraud and Abuse” in Afghanistan

Monday, August 20, 2018 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel

Today, our colleagues Alex Ginsberg, Glenn Sweatt and Kevin Massoudi published their Client Alert on a recently issued Special Inspector General for Afghanistan Reconstruction (SIGAR) Report that finds over $15 billion in waste, fraud and abuse. In New SIGAR Report Identifies “Waste, Fraud and Abuse” in Afghanistan, our colleagues identify key takeaways from the Report include:

  • The Report reviewed public spending for Afghanistan reconstruction efforts and identified at least $15.5 billion in waste, fraud and abuse.
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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