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Mountains and plains

This article will briefly survey the “right to repair” statutes in Colorado, Montana, North Dakota and South Dakota. In Nebraska, New Mexico, Utah and Wyoming there is no right to repair or notice-of claim statue.

The “Right to Repair” Construction Defects in the Rocky Mountain and Plains Region

Tuesday, October 16, 2018 — Jean Meyer & Sheri Roswell - Colorado Construction Litigation Blog

In excess of 30 states have enacted tort reform legislation requiring property owners to notify construction professionals of the presence of alleged construction defects prior to the commencement of a lawsuit. These statutes also often permit construction professionals to make an offer of repair within a statutorily defined period of time after receipt of a notice of claim letter. Undoubtedly, the notice-of-claim process has played a meaningful part in bringing construction professionals and claimants to timely resolutions of construction defect concerns in isolated instances.

However, while these statutes are commonly referred to as “right of repair” legislation, their practical effect is often reduced to little more than procedural empty gestures serving as a prelude to litigation. This article will briefly survey the “right to repair” statutes in Colorado, Montana, North Dakota and South Dakota. In Nebraska, New Mexico, Utah and Wyoming there is no right to repair or notice-of claim statue.

Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell LLC and Sheri Roswell, Higgins, Hopkins, McLain & Roswell LLC
Mr. Bracken, may be contacted at meyer@hhmrlaw.com 
Ms. Russo may be contacted at roswell@hhmrlaw.com


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Illustration man mask chemical spill

This decision highlights the importance of burden shifting in duty to defend situations.

Massachusetts Judge Holds That Insurer Breached Its Duty To Defend Lawsuit After Chemical Spill

Tuesday, October 16, 2018 — Lawrence J. Bracken, II & Alexander D. Russo - Hunton Insurance Recovery Blog

A District Court Judge for the District of Massachusetts recently ruled that Ace Property and Casualty Insurance Co. breached its duty to defend its insured in a lawsuit brought by Plaistow Project, LLC, after a family owned laundromat leaked chemicals onto Plaistow Project’s property. Plaistow Project, LLC v. ACE Prop. & Cas. Ins. Co., No. 16-CV-11385-IT, 2018 WL 4357480, (D. Mass. Sept. 13, 2018). Plaistow Project sued State Line Laundry Services in state court, and ACE denied coverage under the pollution exclusion in State Line Laundry’s insurance policy. Plaistow Project then settled with State Line Laundry. Under the settlement terms, Plaistow Project was assigned State Line Laundry’s rights against ACE.

In the subsequent coverage litigation, Plaistow Project alleged that ACE had breached its duty to defend State Line Laundry under its insurance policy. ACE argued that (1) the burden was on the policyholder to demonstrate that the policy’s “sudden and accidental” exception applied to the policy’s pollution exclusion; and (2) the policyholder could not show the “sudden and accidental” exception applied based on the complaint.

Reprinted courtesy of Lawrence J. Bracken, II, Hunton Andrews Kurth and Alexander D. Russo, Hunton Andrews Kurth
Mr. Bracken, may be contacted at lbracken@HuntonAK.com
Mr. Russo may be contacted at arusso@HuntonAK.com


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In Deutsche Bank National Trust Co. v. Pheasant Grove LLC, the Court of Appeals addressed the question of what statute of limitations was applicable to a declaratory judgment claim.

Arizona Court Determines Statute of Limitations Applicable to a Claim for Reformation of a Deed of Trust (and a Related Claim for Declaratory Judgment)

Tuesday, October 16, 2018 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog

In a recent Arizona Court of Appeals case, Deutsche Bank National Trust Co. v. Pheasant Grove LLC, 798 Ariz. Adv. Rep. 15 (August 23, 2018), the Court of Appeals addressed the question of what statute of limitations was applicable to a declaratory judgment claim. In that case, a bank’s deed of trust inadvertently omitted one of the lots that was supposed to secure that bank’s loan. The deed of trust should have covered lots 8 and 9, but by its terms covered only lot 8. A different bank subsequently recorded a deed of trust that encumbered lot 9. In connection with the second bank’s foreclosure of its deed of trust, the first bank sought reformation and a declaratory judgment with regard to its deed of trust, seeking to have that deed of trust cover both lots 8 and 9, as intended. The trial court determined that the first bank’s reformation claim was filed too late, and also determined that the declaratory judgment claim was filed too late, beyond the applicable statute of limitations.

Reprinted courtesy of Kevin J. Parker, Snell & Wilmer

Mr. Parker may be contacted at kparker@swlaw.com

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Embedding Digital Readiness Into Corporate Culture

October 16, 2018 — Jay Snyder, Alyssa Menard & Sabine Hoover - Construction Executive

Engineering and construction leaders need to think about how they will change processes, systems and operations in preparation for the industry’s inevitable digital transformation. Done right, it can be a game-changer. But companies must ensure that their change management plan addresses both technology and culture, or they will be doomed to fail.

“For us, digital transformation is really that intersection of technology innovation and business innovation,” stated Mark Peacock, principal and global IT transformation practice leader with The Hackett Group, in a 2017 CIO article. “It’s how you’re taking digital technologies and, as a company, fundamentally changing the way you’re delivering products and services. It’s about applying technology innovation to come up with new business models, which really drive new revenue above the line and new ways to deliver products and services.”

Reprinted courtesy of Jay Snyder, Alyssa Menard & Sabine Hoover, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

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Florida Supreme Court’s Application of Insurance Bad Faith in Third-Party Context

October 16, 2018 — David Adelstein - Florida Construction Legal Updates

What happens when an insured receives a judgment in excess of his/her insurance policy limits when the matter could have been resolved within the insured’s policy limits? Think of a personal injury scenario where the insured received a claim by an injured party and tenders the claim to his/her insurer. What if that matter could get resolved within policy limits but it does not and exposes the insured to a judgment in excess of the policy limits? This could be where insurance bad faith comes into play in the third-party liability insurance context based on the totality of circumstances—the insurer acted in bad faith in failing to settle this third-party claim and exposed the insured to a judgment in excess of the insured’s policy limits.

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

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Five Steps to Make Your Home More Cyber Secure

October 16, 2018 — Michael Jervis - White and Williams LLP

October has been designated National Cyber Security Awareness Month by the Department of Homeland Security, and in the first week of the month we are focusing on developing good cybersecurity habits in our most personal spaces – our homes. Most of us are aware that in the age of nearly ubiquitous WiFi, as well as the near-constant presence of mobile phones, the cyber world extends into our living rooms, bedrooms and kitchens. Anywhere the internet reaches, so do the cyber threats. The seemingly constant stream of news about cyber threats and attacks can seem daunting, but there are several things we can all do in as little as a few hours that will go a long way to staving off many of the most common threats.

Mr. Jervis may be contacted at jervism@whiteandwilliams.com

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39th Annual Construction Law and Public Contracts Seminar

October 16, 2018 — Beverley BevenFlorez - CDJ STAFF

This two-day seminar will include networking opportunities with colleagues, judges, and construction industry professionals, as well as review and analysis of significant federal and state decisions and legislative changes. Attendees will receive a year’s worth of Virginia MCLE credit, including two hours of ethics. Topics will include design-build issues, mechanic’s liens, delay and loss of productivity evidence, pass-through claims, environmental considerations, judicial perspectives of a construction case, and navigating the confusing world of licensing.

November 2nd & 3rd, 2018
Boar's Head Resort
200 Ednam Dr
Charlottesville, VA 22903

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A recent case out of the Eastern District of Virginia Federal District Court examined a provision in a contract between a designer/architect and a contractor or owner on a project.

Uniwest Rides Again (or, Are Architects Subject to Va. Code Section 11-4.1?)

Tuesday, October 16, 2018 — Christopher G. Hill - Construction Law Musings

In 2010, the Virginia Supreme Court held in Uniwest Const., Inc. v. Amtech Elevator Servs., Inc., that Va. Code Sec. 11-4.1 renders completely void and unenforceable any indemnification provision in a construction contract between a contractor and subcontractor that seeks to indemnify the indemnified party from its own negligent acts. In short, the Virginia Supreme Court stated that such overly broad provisions violate Section 11-4.1.

A recent case out of the Eastern District of Virginia Federal District Court examined a provision in a contract between a designer/architect and a contractor or owner on a project. In Travelers Indem. Co. of Conn. v. Lessard Design Inc. the Court examined the application of Section 11-4.1 to the following provision of a design contract where Lessard, the indemnitor, agreed to:

[i]ndemnify, defend and hold the Owner, Owner’s Developer, and Owner’s and Owner’s Developer’s wholly owned affiliates and the agents, employees and officers of any of them harmless from and against any and all losses, liabilities, expenses, claims, fines and penalties, costs and expenses, including, but not limited to reasonable attorneys’ fees and court costs relating to the services performed by the Architect hereunder . . .

Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill

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

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Ultimately, new and established contractors offering design-build services in Washington State must plan ahead and consider whether they need to structure or restructure their business in order to avoid costly technical violations of the local statute.

Contractor Beware: Design-Build Firms Must Review Washington’s Licensing Requirements

Tuesday, October 16, 2018 — John Krawczyk - Ahlers Cressman & Sleight PLLC

Design-build contracting is a method of project delivery where the contractor provides both architectural/design and building services to the owner. Yet rarely do firms perform both design and building work in equal measure. Rather, in many instances, firms perform the vast majority of their work on the building side while advertising and providing design services for smaller projects using in-house architects.

Regardless of the volume of design-build contracting a firm performs, any firms practicing this method of project delivery must be aware of Washington State’s registration requirement under RCW 18.08.420(1), and specifically the condition that a “designated architect” must serve as a partner, manager or director of the firm’s governing structure.

Reprinted courtesy of John Krawczyk, Ahlers Cressman & Sleight PLLC

Mr. Krawczyk may be contacted at john.krawczyk@acslawyers.com

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Businesswoman and businessmen speculating on issue

Economic damages are those routinely seen in a construction dispute. These damages cannot be based on conjecture or guesswork and need to be supported by competent substantial evidence.

Economic Damages Cannot be Based On Speculation

Tuesday, October 16, 2018 — David Adelstein - Florida Construction Legal Updates

Economic damages, unlike non-economic damages (such as those in personal injury disputes), need to rest on a reasonable basis. Economic damages are those routinely seen in a construction dispute. These damages cannot be based on conjecture or guesswork and need to be supported by competent substantial evidence. Otherwise, the economic damages will be deemed too speculative because they are not reasonably quantifiable. I recently discussed a case involving the professional boxer Canelo Alvarez that was sued by a former promoter for unjust enrichment. Although the promoter recovered a jury verdict for unjust enrichment damages against Canelo Alvarez, the verdict was reversed because the methodology utilized by the promoter to demonstrate damages was speculative. This is definitely not what a plaintiff wants to happen after prevailing at the trial level!

Reprinted courtesy of David Adelstein, Kirwin Norris

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

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CONSTRUCTION DEFECT NEWS
Prison cell background

Garret Murai analyzes the case West Coast Air Conditioning Company, Inc. v. California Department of Corrections.

California Department of Corrections Gets Hit With the Prison Bid Protest Blues

Tuesday, October 16, 2018 — Garret Murai - California Construction Law Blog

“I’m breakin’ rocks in the hot sun . . . I fought the law and the law won . . . I needed money ’cause I had none . . . I fought the law and the law won” – The Clash, I Fought the Law (1978)

In the recent case, West Coast Air Conditioning Company, California Department of Corrections and Rehabilitation, Case No. D071106 (February 22, 2018), those lyrics could be aptly revised to, “the law fought the courts and the courts won.”

West Coast Air Conditioning Company, Inc. v. California Department of Corrections
In February 2015, the California Department of Corrections and Rehabilitation (CDCR) published an invitation for bids for a new central air conditioning plant for the Ironwood State Prison in Blythe, California. West Coast Air Conditioning Company, Inc., Hensel Phelps Construction Co., and four other companies submitted bids.

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

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

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Hurricane Michael was the most powerful hurricane to hit the continental U.S. in nearly 50 years.

URGENT: 'Catching Some Hell': Hurricane Michael Slams Into Florida

Tuesday, October 16, 2018 — Associated Press (Jay Reeves & Brendan Farrington) - Bloomberg

Panama City, Fla. (AP) -- Powerful Hurricane Michael slammed into the Florida Panhandle with terrifying winds of 155 mph Wednesday, splintering homes and submerging neighborhoods before continuing its destructive march inland across the Southeast. It was the most powerful hurricane to hit the continental U.S. in nearly 50 years and at least one death was reported during its passage.

Supercharged by abnormally warm waters of the Gulf of Mexico, the Category 4 storm crashed ashore in the early afternoon near Mexico Beach, a tourist town about midway along the Panhandle, a 200-mile (320-kilometer) stretch of white-sand beach resorts, fishing towns and military bases. After it ravaged the Panhandle, Michael entered south Georgia as a Category 3 hurricane — the most powerful in recorded history for that part of the neighboring state.

Reprinted courtesy of Bloomberg
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Sign in Field says Risk Reward

George Talarico practices in Sills Cummis & Gross’ Litigation Department. He has represented clients in commercial disputes including toxic torts, products liability and construction. He also has worked in the construction and construction management industries.

A Word to the Wise: The AIA Revised Contract Documents Could Lead to New and Unanticipated Risks - Part II

Tuesday, October 16, 2018 — George Talarico - Construction Executive

Part I addressed general conditions, revised insurance terms, revisions that affect owner’s required insurance and revisions that affect contractor’s required insurance.

REVISIONS THAT AFFECT DISPUTE RESOLUTION

A seemingly minor but noteworthy change is to the definition of “Claim.” Under Section 15.1 a “Claim” is defined to:

  • include a request for a modification of contract time; and
  • exclude any requirement that an owner must file a claim to impose liquidated damages.

Notably, any request relating to contract time must be brought within the specified time period for Notice of Claim and in the prescribed manner. There are at least two traps for the unwary. First, even though email is regularly used for communications among the parties, the revised contract documents do not recognize email as an acceptable form of delivery of a Notice of Claim. Second, an unwary contractor may wrongly assume that an owner’s failure to assert a claim for LDs means that LDs will not be imposed. This may lull the contractor into failing to timely assert its own claim for a time extension and thereby waiving its ability to do so.

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

Mr. Talarico may be contacted at gtalarico@sillscummis.com

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Lightning Hits New Jersey Home, Lighting it on Fire

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CONSTRUCTION DEFECT NEWS
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The program is an update of its 1985 National Emphasis Program on trenching safety.

OSHA Launches Program to Combat Trenching Accidents

Tuesday, October 16, 2018 — Tom Ichniowski – Engineering News-Record

In the wake of a recent rise in fatal trenching cave-ins, the federal Occupational Safety and Health Administration has begun a targeted education and enforcement program to try to reverse the trend.

Reprinted courtesy of Tom Ichniowski, ENR

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

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Indecisive businessman at fork in path

Construction lead programs have positive and negative aspects.

Doing Construction Lead Programs the Right Way

Tuesday, October 16, 2018 — Natalie Craigmile - Construction Informer

Running a construction business takes hard work. When you are working on a job, it can be difficult to find time to spend on marketing and advertising. If you are short on time, buying leads through construction lead programs could be a good way to meet new customers, grow your business, and find your next job. Keep reading to learn more about some of the pros and cons of buying leads.

A construction lead generation service exists solely to connect home owners with local home improvement contractors. They market across different construction specialties and reach customers who are looking for construction companies. Once they capture the ‘lead’, which is essentially the contact information and a few project details of that potential customer, they sell the lead to one or more local contractors in their network.

Reprinted courtesy of Natalie Craigmile, Construction Informer
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Businesswoman interviewed by employers

Regardless of the union that is striking, issues without an amicable resolution will undoubtedly turn into a long legal dispute spanning months.

Rights Afforded to Employees and Employers During Strikes

Tuesday, October 16, 2018 — Wally Zimolong - Supplemental Conditions

One of the most powerful weapons in labor’s arsenal is a strike. Like most powerful weapons there is a dichotomy in a strike. On one hand, it can bring about concessions from management that labor seeks. On the other hand, it can permanently change the relationship between management and labor. However, one thing is certain, strike are – to put it mildly – chaotic.

During this chaotic period, employees and employers may wonder what rights they have during union-initiated strikes. We provide some brief explanations below, along with how union litigation can help enforce your rights.

Reprinted courtesy of Wally Zimolong, Zimolong LLC

Mr. Zimolong may be contacted at wally@zimolonglaw.com

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storm clouds over rural house and field

Communities around the nation are trying to prepare for changes in weather patterns.

North Carolina Learns More Lessons From Latest Storm

Tuesday, October 16, 2018 — Pam Radtke Russell - Engineering News-Record

There’s no big wall planned to protect North Carolina’s coast from storm surge. There’s no massive tunnel system proposed to keep floodwaters away from populated areas. There are no grant-funded resilience competitions to help the state plan to manage water more effectively.

Reprinted courtesy of Pam Radtke Russell, ENR

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

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Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

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