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CONSTRUCTION DEFECT NEWS
Ruin

Tred R. Eyerly discusses the case Coonce v. CSSA Fire & Cas. Ins. Co.

Collapse Claim Dismissed

Tuesday, December 4, 2018 — Tred R. Eyerly - Insurance Law Hawaii

The complaint alleged collapse, but the claimed cause of the collapse was not a covered cause under the insured's policy, mandating a dismissal of the complaint. Coonce v. CSSA Fire & Cas. Ins. Co., 2018 U.S. App. LEXIS 25010 (10th Cir. Sept. 4, 2018).

The ceiling in the insured's living and dining areas caved in. An engineering survey determined that the nails used in the construction had failed to hold. The insured made a claim on her policy issued by CSAA. Coverage was denied and the insured sued.

The insured was given two opportunities to amend her complaint by the district court, but the motion to dismiss for failure to state a claim was eventually granted.

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

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

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Three contractors on roof doing repairs

An arbitration provision included in a product-purchase limited warranty agreement on the package of every roofing shingles binds a homeowner to arbitrating disputes with the manufacturer.

Owners Bound by Arbitration Clause on Roofing Shingles Packaging

Tuesday, December 4, 2018 — David Adelstein - Florida Construction Legal Updates

In today’s age, you are probably familiar with terms such as a shrinkwrap contract (terms and conditions), which is a boilerplate contract included with a retained product, or a clickwrap contract (terms and conditions), which is generally a boilerplate contract that is digitally accepted when purchasing software or an electronic product. These are are boilerplate terms from manufacturers or vendors of products or software. Arbitration provisions in these types of agreements have generally found to be enforceable.

In the recent ruling by the Eleventh Circuit Court of Appeals in Dye v. Tamko Building Products, Inc., 2018 WL 5729085 (11th Cir. 2018), the court held that an arbitration provision included in a product-purchase limited warranty agreement on the package of every roofing shingles binds a homeowner to arbitrating disputes over the opened and retained product with the manufacturer, irrespective of whether the shingles were purchased by an owner’s roofer. The shingles do not have to be purchased and opened by the owner for the arbitration provision to apply. If the roofer uses or retained the shingles for purposes of the owner’s home, such knowledge of the product-purchase limited warranty agreement on the packaging of the shingles is imputed to the owner (end-user of the shingles).

Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

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

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Legal books on bookshelves

Tred Eyerly practices law in Honolulu, Hawaii, and focuses on insurance coverage issues.

Relying Upon Improper Exclusion to Deny Coverage Allows Bad Faith Claim to Survive Summary Judgment

Tuesday, December 4, 2018 — Tred R. Eyerly - Insurance Law Hawaii

The insurer was successful on summary judgment in establishing it correctly denied coverage for collapse, but its motion was denied regarding the insureds' bad faith claim. Jones v. State Farm Fire & Cas. Co., 2018 U.S. Dist. LEXIS 153102 (W.D. Wash. Sept. 7, 2018).

The insureds' retaining wall collapsed. They tendered to State Farm under their homeowners policy. An engineer retained by State Farm determined that the wall buckled due to "excessive lateral earth pressure from retained soils behind the wall." The parties agreed that the soil, saturated by water from frequent rain, grew too heavy for the retaining wall to bear, causing the collapse.

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

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

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Amazon To Build Headquarters in New York City and Washington, DC

December 4, 2018 — Jim Parsons, Engineering News-Record

As Amazon’s decision to split its second headquarters between New York City and metropolitan Washington, D.C., draws plaudits and criticism regarding incentives used to lure the e-commerce giant, contractors are weighing the impacts of major new construction programs in what are already the nation’s top two construction markets.

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

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Top 10 List of Scariest Insurance Policy Terms

December 4, 2018 — Theresa A. Guertin - Saxe Doernberger & Vita, P.C.

SDV attorneys spend a lot of time reviewing insurance policies for our construction industry clients. From analyzing policies that are meant to provide additional insured coverage to our general contractor clients, to parsing through OCIP and CCIP placements sent to us by our broker colleagues, we’ve seen it all. Sometimes coverage can be a scary thing, so in honor of Halloween, here is our “Top 10 List of Scariest Insurance Policy Terms” we’ve seen over the past year.

1. Complete bodily injury exclusions. Especially in markets where subcontractor insurance costs are high and profit margins are low, subcontractor policies contain bodily injury exclusions for employees at an alarming rate. Exclusions this broad can mean no coverage when an injured employee brings a claim against an additional insured, thereby exposing the additional insured’s corporate program to a loss which otherwise should be transferred downstream.

Ms. Guertin may be contacted at tag@sdvlaw.com

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OSHA Releases Final Crane Rule

December 4, 2018 — Jeff Rubenstone - Engineering News-Record

The Occupational Safety and Heath Administration published the final version of its new crane rule on Nov. 9, which covers training and certification for crane operators. The rule is a revision of a draft version published in May 2018, and it removes the need to certify operators by crane capacity rather than just type of crane.

Mr. Rubenstone may be contacted at rubenstonej@enr.com

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ABA Webinar: Additive Manufacturing in Construction: Impacts and Emerging Issues

December 4, 2018 — Beverley BevenFlorez - CDJ STAFF

This American Bar Association live webinar discusses the advancing technology and new uses for AM in construction, as well as the emerging legal issues for the industry. Topics to be covered include the construction industry’s expanding interest in AM technology, the core issues with new uses for AM in construction, and potential benefits of advancing technology for AM in construction.

January 16th, 2019
Webinar

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Contract on typewriter

English won the prior battle, but lost the war.

English v. RKK. . . The Rest of the Story

Tuesday, December 4, 2018 — Christopher G. Hill - Construction Law Musings

Back in February, I discussed a case relating to indemnity and ambiguity. The opinion in that case, W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP et al., allowed a breach of contract and indemnity claim to move forward despite the fact that conflicting term sheets between the plaintiff and defendant could have been read to violate Virginia law by requiring indemnity for English’s own negligence. In other words, the ambiguity worked in English’s favor (though that is not something to count on). The Court did not however address whether there was any negligence on English’s part and if there was, what was the contractual effect.

I’ll bet you were wondering what happened later in that case. Well, here’s the answer. In a subsequent opinion, the Court looked at the same ambiguous and conflicting term sheets between and among those defendants that were required to provide quality assurance services for the construction of a bridge in western Virginia. For the full procedural and factual analysis, be sure to read the full memorandum opinion linked above.

Reprinted courtesy of Law Office of Christopher G. Hill

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

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Globe lying on grass

Jurisdictions in 15 states and Washington, D.C., have adopted part or all of the IgCC, integrated in the new release with ASHRAE’s sustainability standard.

ICC/ASHRAE/USGBC/IES Green Model Code Integrates Existing Standards

Tuesday, December 4, 2018 — Nadine M. Post - Engineering News-Record

The release this month of the 2018 edition of the International Green Construction Code marks the first time two sustainability standards developers have joined to foster green buildings and streamline code adoption. The model IgCC is now integrated with ASHRAE’s standard for high-performance buildings. And to reduce green-standard confusion even further, the 2018-IgCC is aligned with the LEED rating system program.

Reprinted courtesy of Nadine M. Post, ENR

Ms. Post may be contacted at postn@enr.com

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Businessman holding justice scale

The Amerisure case should act as notice to all subrogation professionals that the relief afforded in a spoliation claim may not be available until after the trial of the underlying action.

Florida Court of Appeals Holds Underlying Tort Case Must Resolve Before Third-Party Spoliation Action Can Be Litigated

Tuesday, December 4, 2018 — Lian Skaf - The Subrogation Strategist

In Amerisure Ins. Co. v. Rodriguez, 43 Fla. L. Weekly 2225 (Fla. Dist. Ct. App., Sept. 26, 2018), the Third District Court of Appeals of Florida addressed whether a third-party spoliation claim should be litigated and tried at the same time as the plaintiff’s underlying tort case. The court held that since the third-party spoliation claim did not accrue until the underlying claim was resolved, the spoliation cause of action could not proceed until the plaintiff resolved his underlying claim.

The underlying matter in Amerisure involved a personal injury claim by plaintiff Lazaro Rodriguez. While working as an employee for BV Oil, Inc. (BV), Mr. Rodriguez was knocked from the top of a gasoline tanker he was fueling at a gasoline storage warehouse owned by Cosme Investment (Cosme). Mr. Rodriguez filed a personal injury lawsuit against Cosme. He also collected worker’s compensation benefits from Amerisure Insurance Company (Amerisure), BV’s worker’s compensation carrier, while his lawsuit was pending.

Reprinted courtesy of Lian Skaf, White & Williams LLP

Mr. Skaf may be contacted at skafl@whiteandwilliams.com

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CONSTRUCTION DEFECT NEWS
Mine

Is an insured mining company’s unauthorized removal of minerals from a neighboring property an “occurrence”?

KY Mining Accident Not a Covered Occurrence Under Commercial General Liability Policy

Tuesday, December 4, 2018 — Phillip A. Perez - Saxe Doernberger & Vita, P.C.

In Am. Mining Ins. Co. v. Peters Farms, LLC,1 the Kentucky Supreme Court ruled that a mining error was not a covered accident under a commercial general liability insurance policy. The central issue was whether an insured mining company’s unauthorized removal of minerals from a neighboring property was an “occurrence” that unintentionally caused “property damage” as defined by the mining company’s commercial general liability policy (“CGL Policy”).

Reprinted courtesy of Phillip A. Perez, Saxe Doernberger & Vita, P.C.

Mr. Perez may be contacted at pap@sdvlaw.com

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Young woman touching her temples

At present AB 219 appears to be the law of the land, or at least the law of the Golden State.

It’s Getting Harder and Harder to be a Concrete Supplier in California

Tuesday, December 4, 2018 — Garret Murai - California Construction Law Blog

In 2015, the California state legislature passed AB 219, which amended the state’s prevailing wage law to add Labor Code section 1720.9, which requires the payment of prevailing wages to “ready-mixed concrete” drivers on state and local public works projects.

Ready-mixed concrete suppliers filed suit in Allied Concrete and Supply Co. v. Baker (September 20, 2018) U.S. Court of Appeals for the Ninth Circuit, challenging the law on the ground that, because AB 219 singled out ready-mixed concrete drivers but not other drivers of materials on state and local public works projects, the law violated the Equal Protection Clause of the U.S. Constitution.

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

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

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Blurred highway

After Democrats’ House wins, Pelosi pledges “transformational” infrastructure bill in 2019.

After Elections, Infrastructure Talk Stirs Again

Tuesday, December 4, 2018 — Tom Ichniowski - Engineering News-Record

In the wake of Democrats’ House takeover and Republicans widening their Senate majority in the midterm elections, talk has quickly revived about taking on infrastructure legislation in the new Congress. Construction industry officials welcome the pro-infrastructure rhetoric from congressional leaders and President Trump. But it remains to be seen whether the words will spark a bill that can make it through a divided 116th Congress. Funding the package remains the high hurdle.

Reprinted courtesy of Tom Ichniowski, ENR

Mr. Ichniowski may be contacted at ichniowskit@enr.com

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New Fires Erupt in California

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Race track

There is a renewed interest in transportation infrastructure projects, and recent legislation is intended to accelerate required environmental reviews.

Department of Transportation Revises Its Rules Affecting Environmental Review of Transportation Projects

Tuesday, December 4, 2018 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog

On October 29, the U.S. Department of Transportation (DOT) published a final rule in the Federal Register which amends and revises the environmental National Environmental Policy Act (NEPA) procedures rules employed by the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA). There is a renewed interest in transportation infrastructure projects, and recent legislation is intended to accelerate required environmental reviews.

Reprinted courtesy of Anthony B. Cavender, Pillsbury

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

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Finger touching hologram symbolizing internet

Walter Andrews was interviewed earlier this week by ABC 7 (WJLA) concerning the need for cyber insurance and the benefits that it can provide to government contractors and others.

Hunton Insurance Head Interviewed Concerning the Benefits and Hidden Dangers of Cyber Insurance

Tuesday, December 4, 2018 — Michael S. Levine - Hunton Insurance Recovery Blog

The head of Hunton Andrews Kurth’s insurance practice, Walter Andrews, was interviewed earlier this week by ABC 7 (WJLA) concerning the need for cyber insurance and the benefits that it can provide to government contractors and other businesses that are impacted by a cyber event. Andrews explains the diverse spectrum of benefits that are available through cyber insurance products, but cautions that a serious lack of uniformity exists among today’s cyber insurance products, making it crucial that policyholders carefully analyze their cyber insurance to ensure it provides the scope and amount of insurance they desire.

Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth

Mr. Levine may be contacted at mlevine@HuntonAK.com

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Flames

The wildfires sweeping Southern California in the past week threaten some of the priciest real estate in the country.

‘Like a War Zone’: Malibu Fire Ravages Multimillion-Dollar Homes

Tuesday, December 4, 2018 — John Gittelsohn, Anousha Sakoui, & Christopher Palmeri - Bloomberg

Malibu resident Lance Schultz was jolted awake at 2 a.m. Friday with word that he needed to evacuate. With a roaring fire approaching the coastal community, he gathered his girlfriend, dog and 8-month-old son and headed to nearby Zuma Beach.

He returned Sunday to survey the damage. His home was saved after his girlfriend’s 82-year-old father returned to hose down the property he had built years before. But Schultz estimates about one-fifth of the houses in the neighborhood are gone, including a mansion down the block that was on sale for $16 million. Much of the rest of the area is covered in black soot.

Reprinted courtesy of John Gittelsohn, Anousha Sakoui, & Christopher Palmeri, Bloomberg
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Businessman pointing to tablet

SkenarioLabs was one of the Top-25 PropTech European startups exhibiting and pitching at the most important European industry event, EXPO REAL 2018, in Munich, Germany.

SkenarioLabs Uses AI for Property Benchmarking

Tuesday, December 4, 2018 — Aarni Heiskanen - AEC Business

AI continues to be a hot topic across industries. The PropTech startup SkenarioLabs has a data analytics solution that utilizes AI. The results have been successful from the perspective of property owners: reliable technical surveys that contribute to making smart investment decisions.

Topi TiihonenWhile automatic valuation is not a recent invention for property owners and investors, there has not previously been an available service that combines it with technical surveying. SkenarioLabs has been building a system that digitizes technical surveys in order to help property owners manage their properties. The algorithm extracts a property’s technical risk from the market value.

Reprinted courtesy of Aarni Heiskanen, AEC Business

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

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