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CONSTRUCTION DEFECT NEWS
Bridge with cars in traffic

Meeting attendees at contractor's office offered modest suggestions and questions to FIGG Bridge Engineers hours prior to collapse.

Spreading Cracks On FIU Bridge Failed to Alarm Project Team

Monday, May 20, 2019 — Scott Judy & Richard Korman - Engineering News-Record

On the morning of last year’s Florida International University pedestrian bridge collapse, when the engineer of record assured project team members that there were no safety risks related to cracks propagating across a part of the unusual single-truss structure, other project team members voiced mild concern, but no alarm. In hindsight, considering that the bridge had no inherent structural redundancy as it sat, incomplete, straddling a busy highway—and would suffer a sudden, catastrophic and deadly collapse just hours later—the team’s lack of urgency remains puzzling, say engineering experts contacted by ENR for comment.

Reprinted courtesy of Scott Judy, ENR and Richard Korman, ENR
Mr. Judy may be contacted at mailto:judys@enr.com
Mr. Korman may be contacted at kormanr@enr.com


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Three contractors repairing roof

Punch list work should be treated as “ongoing operations” and the policy period should be extended to accommodate it.

"Repair Work" Endorsements and Punch List Work

Monday, May 20, 2019 — Jeremiah M. Welch - Saxe Doernberger & Vita, P.C.

The recent white paper on Repair Work Endorsements by Jeremiah Welch, drew a storm of responses. Most were appreciative and included follow up questions, but there were those that lamented along the lines of: “How can that be? We’ve been doing it this way for years…”. For the skeptics, the best approach to test the premise of the paper (that most “repair work endorsements” are at best redundant with the PCO extension and at worst restrictive) is to try to formulate a scenario where coverage would be available under a “repair work endorsement” but not under a PCO extension.

Several folks asked about the impact of PCO extensions and repair work endorsements on “punch list” work. “Punch list” work presents a related but different problem. The first issue is understanding what is meant by the term “punch list”. You won’t find that term in an ISO CGL policy. You may find it defined in a construction contract and a Google search will yield several similar definitions. In general, our industry uses the term “punch list” to describe items identified toward the end of a project (often after the contractually defined point of “substantial completion”) which must be completed in order to fully comply with the contract requirements/scope. In short, “punch list” items are items necessary to complete the work.

Reprinted courtesy of Jeremiah M. Welch, Saxe Doernberger & Vita, P.C.

Mr. Welch may be contacted at jmw@sdvlaw.com

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How 3D Text with question mark

What to do when a lower-tier entity files a lien against a property then disappears.

How to Mitigate Lien Release Bond Premiums with Disappearing Lien Claimants

Monday, May 20, 2019 — Scott MacDonald - Ahlers Cressman & Sleight PLLC

It is one of those dreaded business situations that plagues the construction industry, especially in times of economic downturn—what to do when a lower-tier entity files a lien against a property then disappears. It has happened to countless owners, general contractors, subcontractors, and even some particularly unlucky sub-tier subcontractors and suppliers. Here is how it arises: a project is moving along, then performance or payment issues arise, and a company that is over extended or unwilling to continue work stops performance, walks off the job, and files a lien against the property for whatever amounts were allegedly unpaid. Often, the allegedly unpaid sums were legitimately withheld due to a good faith dispute over payment/performance, and it is not unusual for the defaulting entity to not be entitled to any of the sums claimed in the lien. Regardless, the lien stays on the property, and pressure is applied from the “upstream” entities to the party who contracted with the defaulting entity to “deal” with the lien.

Oftentimes, a contract will require the parties to “deal” with a lien by obtaining a lien release bond (“release bond”). For those lucky enough to not have encountered this issue, a release bond is a nifty statutory device whereby a surety agrees to record a release bond for the full claimed amount of the lien, with the release bond substituting in for the liened property, effectively discharging the property from liability under the lien. In other words, the lien is released from the property and attaches to the release bond. If the lien claimant recovers on its lien, it is technically satisfied by the surety providing the release bond (or the party who agrees to indemnify and defend the release bond). In exchange for delivering the release bond, the surety demands yearly premiums be paid on the release bond amount

Reprinted courtesy of Scott MacDonald, Ahlers Cressman & Sleight PLLC

Mr. MacDonald may be contacted at scott.macdonald@acslawyers.com

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The Intersection of Risk Management, Safety, Technology and the Workforce

May 20, 2019 — Sean Martell - Construction Executive

The construction space looks attractive in 2019, given its solid economic position, consistent job growth expectancy, and the promises made to boost infrastructure spending in the United States.

However, according to McKinsey Global Institute’s 2018 research report, “Reinventing Construction Through a Productivity Revolution,” the industry is slow to adopt technology, and has been struggling with stagnant productivity levels for decades. One reason for this is companies continue to use various older systems instead of integrating technologies to consolidate methods and increase overall efficiency.

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

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Wisconsin Tests Breadth of Duty to Defend: Declines to Strip Wholesaler of Defense

May 20, 2019 — William S. Bennett - Saxe Doernberger & Vita, P.C.

Wisconsin’s Supreme Court recently held that even where a complaint generally alleges a company acted wrongfully and with intent to defraud, a single potentially covered claim still triggers the duty to defend. The case is yet another in a long line of state high court decisions finding that the duty to defend is exceedingly broad and applies where there is a single potentially covered claim.

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

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Case Study: Ritz-Carlton Hotel, Paradise Valley, AZ

May 20, 2019 — Engineering News-Record

Located in the aptly-named Paradise Valley, AZ, the Ritz-Carlton residences is set to combine a luxury hotel with high-end living. The project encompasses 200-room Ritz-Carlton resort that will be surrounded by 91 single-level villas and 45 single-family homes. The hotel will also be home to the longest pool in North America, spanning 400 feet, and a 30,000 square-foot spa featuring indoor and outdoor treatment areas. Guests will also be able to take advantage of a state-of-the-art health and fitness center, indoor and outdoor meeting and event space, a citrus orchard, a garden that will have seasonal produce harvested by on-site restaurants, walking paths and a grand lawn.

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

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Save the Date: PLI’s 21st Annual Commercial Real Estate Institute

May 20, 2019 — Beverley BevenFlorez - CDJ Staff

The Practicing Law Institute returns with its annual two-day seminar regarding commercial real estate this November. Haight Brown & Bonesteel LLP Partner Steven Cvitanovic will be presenting, “Ethical Issues Facing Real Estate Attorneys” on November 8, 2019.

November 8th-9th, 2019
San Francisco, California

Read More about PLI Seminar…
Read More about Steven Cvitanovic’s Presentation…

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Post its on cork board

Attorney David Adelstein explains lis pendens.

Quick Note: Lis Pendens Bond When Lis Pendens Not Founded On Recorded Instrument Or Statute

Monday, May 20, 2019 — David Adelstein - Florida Construction Legal Updates

If a lis pendens is recorded and the lis pendens is NOT founded on a duly recorded instrument (e.g., mortgage) or a statute (e.g., construction lien), a lis pendens bond should be recorded. The lis pendens bond should cover prospective damages associated with the wrongful / unjustified recording of a lis pendens that were suffered by the property owner. The reason being is that the lis pendens has an effect on the title to the property as long as the lis pendens is recorded. Damages could stem from a decline in the market value of the property, continued upkeep and maintenance of the property, and there may also be (and, really, should be) consideration for loss of investment return associated with the equity in that property.

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

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

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Firefighters with fire in background

Proving a fire loss claim premised on ignition requires proof by a qualified consultant of origin and cause.

Fire Consultants Cannot Base Opinions on Speculation

Monday, May 20, 2019 — Christopher Konzelmann - The Subrogation Strategist

Larsen v. 401 Main St. Inc., 302 Neb. 454 (2019), involved a fire originating in the basement of the Quart House Pub (Pub) in Plattsmouth, Nebraska that spread to and damaged Plattsmouth Chiropractic Center, Inc., a neighboring business. Fire investigators could not enter the building because the structure was unsafe and demolished. The chiropractic center nevertheless sued the Pub alleging that its failure to maintain and replace basement mechanical equipment caused ignition.

To prove its claim, the plaintiff retained a mechanical engineer who reviewed documents and concluded that the fire “originated from a failure of one of the items of mechanical equipment located in the area of the [basement] boiler.” Importantly, however, the consultant could not determine the root cause of the fire, could not eliminate the possibility that the fire originated in a compressor, and could not rule out the building’s electrical service as the ignition source because it was outside his area of expertise. The consultant nevertheless found that the fire most likely would not have occurred if the Pub had regularly serviced and replaced the equipment when needed.

Reprinted courtesy of Christopher Konzelmann, White and Williams LLP

Mr. Konzelmann may be contacted at konzelmannc@whiteandwilliams.com

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Environment green puzzle

President Trump issued 2 EOs relating to the revision of some aspects of federal energy policy and development.

President Trump Issued Two New EOs on Energy Infrastructure and Federal Energy Policy

Monday, May 20, 2019 — Anthony B. Cavender - Gravel2Gavel

1. The first EO is very comprehensive, affecting many federal agencies and departments, and is entitled “Promoting Federal Infrastructure and Economic Growth.” The EO emphasizes its concern with the need for infrastructure that “ is capable of safely and efficiently transporting these plentiful resources to end users.” To that end, the EO:

  • (A) states the general policy that the U.S. Government is to promote private investment in the Nation’s infrastructure by establishing efficient permitting processes and procedures that avoid duplication and result in increased regulatory certainty;
  • (B) reviews and revises existing federal guidance and regulations regarding Section 401 of the Clean Water Act (CWA), with particular emphasis on EPA’s guidance document, CWA Section 401 Water Quality Certification, and actions will be taken in accordance with a regulatory schedule set forth in the EO which has as its objective a notice of proposed rulemaking on the Environmental Protection Agency’s (EPA) Section 401 regulations to be published in 12 months, with the final rules to be issued by May 2020;
Reprinted courtesy of Anthony B. Cavender, Pillsbury

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


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CONSTRUCTION DEFECT NEWS
Man in radiation protective suit with nuclear power background

The case stems from an incident at Xytex Tissue Services, LLC’s warehouse, where Xytex stored biological material at low temperatures.

Georgia Federal Court Says Fact Questions Exist As To Whether Nitrogen Is An “Irritant” or “Contaminant” As Used in Pollution Exclusion

Monday, May 20, 2019 — Lawrence J. Bracken II, Michael S. Levine & Alexander D. Russo - Hunton Andrews Kurth

The Southern District of Georgia recently ruled that Evanston Insurance Company is not entitled to summary judgment on whether its policies’ pollution exclusion bars coverage for the release of nitrogen into a warehouse. The case stems from an incident at Xytex Tissue Services, LLC’s warehouse, where Xytex stored biological material at low temperatures. Xytex used an on-site “liquid nitrogen delivery system” to keep the material properly cooled. This system releases liquid nitrogen, which would vaporize into nitrogen gas and cool the biological material. On February 5, 2017, a Xytex employee, Deputy Greg Meagher, entered the warehouse to investigate activated motion detectors and burglar alarms. Deputy Meagher was overcome by nitrogen gas and died as a result. Following Deputy Meagher’s death, his heirs filed suit against Xytex and other defendants. Evanston denied coverage based on the pollution exclusion in its policy. Evanston then brought a declaratory judgment action to confirm its coverage position.

In denying Evanston’s summary judgment motion, the Southern District of Georgia reasoned that the type of injury sustained is essential in analyzing whether the pollution exclusion applies. Specifically, Xytex argued, and the court agreed, that the underlying lawsuit alleged that the bodily injury was caused by a lack of oxygen, not exposure to nitrogen. The court also distinguished prior decisions, explaining that injury caused by a lack of oxygen is not a contamination or irritation of the body in the same way as injury resulting from exposure to carbon monoxide or lead. The court also found that Xytex “reasonably expected that liability related to a nitrogen leak would be insured.”

Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Lawrence J. Bracken II, Michael S. Levine and Alexander D. Russo
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Russo may be contacted at arusso@HuntonAK.com


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Woman sitting before panel

Eight declared candidates made their pitches to members of the North America’s Building Trades Unions.

White House Hopefuls Make Pitches to Construction Unions

Monday, May 20, 2019 — Bruce Buckley - Engineering News-Record

As the 2020 presidential election draws nearer, many Democratic hopefuls are beginning to seek construction unions’ support. Eight declared candidates made their pitches to members of the North America’s Building Trades Unions at the group’s legislative conference April 9-10 in Washington, D.C. Several promised a major infrastructure package of $1 trillion or more, which aligns with the trades’ legislative agenda. But many seeking endorsement will wrestle with balancing calls for a green economy and unions’ demand for traditional oil and gas sector jobs.

Reprinted courtesy of Bruce Buckley, ENR

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

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Red white and blue star with banner

Christopher G. Hill has been selected for the 3rd straight year to the Virginia Super Lawyers.

Thanks for the Super Lawyers Nod for 2019!

Monday, May 20, 2019 — Christopher G. Hill - Construction Law Musings

It is with humility and a sense of accomplishment that I announce that I have been selected for the third straight year to the Virginia Super Lawyers in the Construction Litigation category for 2019. Add this to my recent election to the Virginia Legal Elite in Construction and I’ve had a pretty good year. As always, I am thrilled to be included on these peer elected lists.

So without further ado, thank you to my peers and those on the panel at Virginia Super Lawyers for the great honor. I feel quite proud to be part of the 5% of Virginia attorneys that made this list for 2019.

The full lists of Virginia Super Lawyers will appear in the May edition of Richmond Magazine. Please check it out.

Reprinted courtesy of The Law Office of Christopher G. Hill

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

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Official Statue of Liberty Museum Construction Time-Lapse

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CONSTRUCTION DEFECT NEWS
Retro Thank You graphic

This is the 4th consecutive year the California Construction Law Blog has been recognized.

Thanks for Four Years of Recognition from JD Supra’s Readers’ Choice Awards

Monday, May 20, 2019 — Garret Murai - California Construction Law Blog

A big thank you to the folks at JD Supra and its readers for recognizing us in its Construction category for its 2019 Readers’ Choice Awards! We’re honored to be among the 228 authors recognize for their visibility, engagement and thought leadership out of more than 50,000 who have published articles on JD Supra this past year.

Congratulations as well to the other JD Supra 2019 Readers’ Choice Award recipients whose hard work encourages us to be better authors.

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

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

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Crane over dark blue sky

Radio-controlled tower and mobile cranes easily compromised by researchers.

Study Finds Construction Cranes Vulnerable to Hacking

Monday, May 20, 2019 — Jeff Rubenstone - Engineering News-Record

When securing a jobsite against malicious hackers, most go to protect computer files, and few look up and worry about the tower cranes. But many cranes—whether tower, mobile or industrial—can be remotely run via radio wireless controllers, a useful feature for when operators need a clearer view of the load from the ground. Unfortunately, these wireless signals are vulnerable to hijacking, according to a study released earlier this year by security research firm Trend Micro. It found that the radio signals these crane controllers use are not encrypted over the air in any way, and can be easily intercepted and spoofed using off-the-shelf equipment and a basic knowledge of electronics and radio engineering.

Reprinted courtesy of Jeff Rubenstone, ENR

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

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3D Design Concept of Building Model

The most recent model of the Kalasatama district demonstrates the new state-of-the-art possibilities of this technology.

Helsinki is Building a Digital Twin of the City

Monday, May 20, 2019 — Aarni Heiskanen - AEC Business

The capital of Finland first tested city modeling as long back as 1987. But the most recent model of the Kalasatama district demonstrates the new state-of-the-art possibilities of this technology: creation of a highly accurate digital twin of the city.

My hosts, Helsinki’s city modeling specialists Jarmo Suomisto and Enni Airaksinen, showed me their latest projects. One of them offered a glimpse of history through a lens of the future.

With 3D glasses on, I was able to experience the unrealized city plan made by Eliel Saarinen, the father of the world-renowned architect Eero Saarinen. The virtual model in question was a digitized version of a huge physical model from 1915. Being able to stroll the streets and fly over the roofs of the imagined city really made me understand how awesome the original design was. I had seen a scale model of this same plan while it was laid in the foyer of the Museum of Finnish Architecture many years ago, but this experience was quite different.

Reprinted courtesy of Aarni Heiskanen, AEC Business

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

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Beware Under Construction Black and Yellow Stripes

Social media posts offer glimpses into the methods employed to mitigate fall hazards, and many do not adhere to industry-accepted standards.

Don’t Overlook Leading Edge Hazards

Monday, May 20, 2019 — Baxter Byrd - Construction Executive

Leading edge hazards are often misunderstood and overlooked on today’s highly visible jobsites. Evidence is readily available via images shared on construction-related social media accounts.

In the context of people showing pride for the hard work they do or the extreme conditions under which they work, posts offer glimpses into the methods employed to mitigate fall hazards. Alarmingly, many of these methods do not adhere to industry-accepted standards, especially in the case of leading edge applications.

Mincing Words

The definition of “leading edge” itself has undergone somewhat of a transformation since its introduction by OSHA to its current use by ANSI in the Z359.14-2014 “Safety Requirements for Self-Retracting Devices for Personal Fall Arrest and Rescue Systems” standard. OSHA defines a leading edge as an “unprotected side or edge during periods when it is actively or continuously under construction,” giving many the impression that a leading edge was a temporary condition found only during the construction of a structure.

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


Mr. Byrd may be contacted at info@puresafetygroup.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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