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CONSTRUCTION DEFECT NEWS
Businesswoman sitting in front of committee

An expert who did not rely on a publication in forming his or her opinion can nevertheless be questioned on a publication because the publication is a “reliable authority.”

Expert Can be Questioned on a Construction Standard, Even if Not Relied Upon

Sunday, August 7, 2022 — Garret Murai - California Construction Law Blog

It’s not uncommon in construction defect litigation for each side retain one or more experts to give their opinion as to whether something was constructed in accordance with the standard of care. This usually results in what we legal practitioners call a “battle of the experts.”

The California Code of Civil Procedure and Evidence Code include specific provisions applicable to experts including when they must be disclosed, when and how they can be deposed, and what opinions they can render. When attempting to challenge an expert it is not uncommon for one side to argue that the other side’s expert did not consider a certain fact or certain standard in reaching his or her opinion, therefore, allowing that party to argue at trial that the expert’s opinion is somehow flawed.

However, there are also certain limitations, including a limitation restricting a party from cross-examining an expert on any scientific, technical, or professional test, treatise, journal or similar publication if the witness did not rely on such publication in arriving at or forming his or her opinion. The next case, Paige v. Safeway, Inc. (2021) 74 Cal.App.5th 1108, involved a case of first impression: Namely, whether an expert who did not rely on a publication in forming his or her opinion can nevertheless be questioned on a publication (in this case an ASTM standard) because the publication is a “reliable authority.”

Reprinted courtesy of Garret Murai, Nomos LLP

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

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Stadium overview

Cubs owners claim they made many improvements at Wrigley Field.

US Attorney Alleges ADA Violations in Chicago Cubs Stadium Renovation

Sunday, August 7, 2022 — Annemarie Mannion - Engineering News-Record

The friendly confines of Wrigley Field are not so friendly to wheelchair users, according to federal prosecutors who filed a civil lawsuit July 14 alleging that the Chicago Cubs’ multi-year renovation of the baseball stadium eliminated prime wheelchair seating and did not include other accessible features required under the Americans with Disabilities Act.

Reprinted courtesy of Annemarie Mannion, Engineering News-Record

Ms. Mannion may be contacted at manniona@enr.com

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Illustration of judge sitting behind bench

The insured alleged that a hail storm damaged his roof.

Fifth Circuit Certifies Questions to Texas Supreme Court on Concurrent Causation Doctrine

Sunday, August 7, 2022 — Tred R. Eyerly - Insurance Law Hawaii

The Fifth Circuit certified unanswered questions on the concurrent causation doctrine to the Texas Supreme Court. Overstreet v. Allstate Vehicle & Prop, Ins. Co., 2022 U.S. App. LEXIS 13582 (5th Cir. May 19, 2022).

The insured alleged that a hail storm damaged his roof. The roof was three years old when he purchased a policy from Allstate. An adjuster sent by Allstate valued the loss at $1,263.123, less than the policy deductible. Allstate contended that the roof damage was due to uncovered causes, namely a combination of wear and tear and earlier hail storms that hit the roof before the insured purchased the policy. The insured disagreed because the roof had never leaked before the hail storm, but only after the storm. The insured's expert inspected the roof and determined it had been damaged by hail. The district granted Allstate's motion for summary judgment because the insured had not carried his burden of proving how much damages came from the hail storm alone.

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

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

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Kwant Expands Its Connected Construction Solution

August 7, 2022 — Aarni Heiskanen - AEC Business

Kwant, the New York-based construction software company, has announced a product expansion that supports Lean Construction-based waste reduction. The expansion provides digital transparency for construction sites by connecting each data node to improve safety and productivity.

As construction projects become more challenging, the need for fully connected jobsites and data-driven decisions becomes critical. Kwant solves the complex challenges by connecting every workforce, forklift, crane, sheet of drywall, and ton of steel to a centralized platform. Based on the millions of data points, decision-makers can take proactive actions to improve safety and productivity on and off a construction site.

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

The Blame Game: Georgia Updates Its’ Apportionment of Fault Statute to Apply to Single-Defendant Lawsuits

August 7, 2022 — William L. Doerler - The Subrogation Strategist

For all cases filed after May 13, 2022, Georgia has amended its apportionment of fault statute, O.C.G.A. § 51-12-33. The amendment affects subsection (b), which formerly stated that in actions brought against “more than one person for injury to person or property,” the amount of damages awarded, after taking a reduction for the plaintiff’s percentage of fault, shall be apportioned among the person or persons liable according the each person’s percentage of fault. It also eliminated joint liability and the right of contribution. The amended subsection (b) now applies to actions brought “against one or more persons,” thus allowing courts to apply the statute to single-defendant lawsuits.

Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

Builders Are Slashing Prices to Sell Homes in Fast-Cooling US Markets

August 7, 2022 — Prashant Gopal - Bloomberg

On the edges of US Sun Belt suburbia, the wait lists for new houses are gone. And homebuilders are doing something they haven’t done in years: slashing prices.

The fastest-rising mortgage rates in decades have cooled demand so abruptly in many hotspots that it took the industry by surprise. Builders that were artificially limiting sales and auctioning houses to the highest bidder now have inventory to move.

Greenbuild International Conference + Expo

August 7, 2022 — Beverley BevenFlorez – CDJ Staff

On its 20th anniversary, the event will celebrate “with an expanded take on what it means to build green and” will explore “the history of the green building movement.” This three-day conference is relevant for architects, consultants, sustainability managers, designers, engineers, educators, real estate agents and builders in the green building industry.

November 1st-3rd, 2022
Moscone Center
747 Howard St
San Francisco, CA 94103

714.701.9180
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Hurricane damage

Tribal officials worry an equally bad season could put their people in the crosshairs again.

In Louisiana, Native Americans Struggle to Recover From Ida

Sunday, August 7, 2022 — The Associated Press (Rebecca Santana) - Bloomberg

Along Bayou Pointe-Au-Chien, La. (AP) -- Driving through her village along a southeastern Louisiana bayou, tribal official Cherie Matherne points out the remnants of house after house — including her own — wrecked nine months ago when Hurricane Ida roared through the Pointe-au-Chien Indian Tribe community.

Beige trailers from the Federal Emergency Management Agency and travel campers sit next to pilings that elevated homes 14 feet (4.3 meters) off the ground to protect them from flooding. But it was the wind that got them this time. For hours, the Category 4 hurricane tore off roofs and siding, ripped out insulation and scattered treasured belongings. It destroyed shrimp boats and tossed crab traps.

“It’s going to take years before people can get back to their lives. The majority of people are still at a standstill,” said Matherne, the tribe’s cultural heritage and resiliency coordinator.

Reprinted courtesy of Bloomberg
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Businessman with clock

A multi-year construction project could be longer than the applicable statute of limitations.

Overtime! – When the Statute of Limitations Isn’t Game Over For Your Claim

Sunday, August 7, 2022 — Bradley E. Sands, Jones Walker LLP - ConsensusDocs

Statutes of limitations establish the period of time within which a claimant must bring an action after it accrues. An action can be filing a lawsuit and, in some instances, filing a demand for arbitration. But a multi-year construction project could be longer than the applicable statute of limitations. For example, under Delaware or North Carolina law, the statute of limitations for a breach of contract is only three years.1 So a claim for breach of a construction contract that occurred (i.e. accrued) at the beginning of a four-year project under Delaware or North Carolina law may expire before the project is completed.

Generally, a claim accrues at the time of the breach (however, it is important to note that this is not always the case and claim accrual could be the subject of an entirely different article). During the course of a multi-year construction project, proposed change orders or claims for additional compensation can sit, unanswered or unpursued, for months. Or, the parties may informally agree as part of regular project communications to put off dealing with a claim head-on until the end of the project. On certain projects, slow-walking a claim is understandable, as a contractor may be hesitant to sue an owner in the middle of a multi-year project and risk upsetting an otherwise good working relationship. But a delay in formally asserting a put-off claim after it accrues could result in the claim falling subject to a statute of limitations defense.

Reprinted courtesy of Bradley E. Sands, Jones Walker LLP (ConsensusDocs)

Mr. Sands may be contacted at bsands@joneswalker.com

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Woman holding umbrella

hen it comes to insurance coverage, generally, insurance coverage is not created by an estoppel argument.

Narrow Promissory Estoppel Exception to Create Insurance Coverage

Sunday, August 7, 2022 — David Adelstein - Florida Construction Legal Updates

There is an affirmative claim known as promissory estoppel. (Whereas equitable estoppel is used an affirmative defense, promissory estoppel is used as an affirmative claim.)

To prove promissory estoppel, a plaintiff must plead and prove the following three elements: “(1) a representation as to a material fact that is contrary to a later-asserted position; (2) a reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon.” Romo v. Amedex Ins. Co., 930 So.2d 643, 650 (Fla. 3d DCA 2006) (citation and quotation omitted). Stated differently: “A party will be estopped from denying liability under the principle of promissory estoppel when the party makes ‘[a] promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance…[and] injustice can be avoided only by enforcement of the promise.’” Criterion Leasing Group v. Gulf Coast Plastering & Drywall, 582 So.2d 799, 800 (Fla. 1st DCA 1991).

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

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

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Finger on digital hologram

CFAS tried to recover the funds it had been tricked into giving up, but it was too late.

Don’t Put All Your Eggs in the Silent-Cyber Basket

Sunday, August 7, 2022 — William P. Sowers, Jr. & Michael S. Levine - Hunton Insurance Recovery Blog

The Eastern District of Pennsylvania recently gave another reminder why cyber insurance should be part of any comprehensive insurance portfolio. In Construction Financial Administration Services, LLC v. Federal Insurance Company, No. 19-0020 (E.D. Pa. June 9, 2022), the court rejected a policyholder’s attempt to find coverage under its professional liability insurance for a social engineering incident that defrauded over $1 million.

Construction Financial Administrative Services, which goes by CFAS, disburses funds to contractors. One of its clients, SWF Constructors, was hacked, and a bad actor posing as the client asked CFAS to distribute $600,000 to a sham third party. John Follmer, an executive at CFAS and the only person authorized to approve distribution of funds, approved it. The next day, the bad actor, again posing as the client, asked Follmer to transfer an additional $700,000. Follmer approved that distribution too.

Reprinted courtesy of William P. Sowers, Jr., Hunton Andrews Kurth and Michael S. Levine, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com


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Business person standing with arms up in triumph

The award recognizes persons making particularly significant contributions to the Excess and Surplus Industry and to the IACP through their exemplary professionalism in claims management, leadership and overall business endeavors.

Traub Lieberman Chair Emeritus Awarded the 2022 Vince Donohue Award by the International Association of Claim Professionals

Sunday, August 7, 2022 — Richard K. Traub - Traub Lieberman

Traub Lieberman is pleased to announce that firm Chair Emeritus Richard Traub has been awarded the 2022 Vince Donohue Award by the International Association of Claim Professionals (IACP).

The IACP provides a forum for senior Claim leaders from across the globe to build relationships with their peers, enhance their knowledge of strategic claim issues and trends, freely exchange views and ideas in order to improve the development, leadership and professionalism of its members and foster goodwill and better business among insurance organizations worldwide. Attorneys at Traub Lieberman have been longstanding members and Diamond Sponsors of the IACP.

Reprinted courtesy of Richard K. Traub, Traub Lieberman

Mr. Traub may be contacted at rtraub@tlsslaw.com

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Businessman with hands up in stop gesture

The US District Court for the District of New Jersey held that Amazon is a “seller” under New Jersey’s product liability statute and can thus face strict liability for damages caused by products sold on its platform.

Amazon Can be Held Strictly Liable as a Product Seller in New Jersey

Sunday, August 7, 2022 — Michael L. DeBona - The Subrogation Strategist

On June 29, 2022, in N.J. Mfrs. Ins. Grp. a/s/o Angela Sigismondi v. Amazon.com, Inc., 2022 U.S. Dist. LEXIS 115826 (Sigismondi), the United States District Court for the District of New Jersey held that Amazon.com, Inc. (Amazon) is a “seller” under New Jersey’s product liability statute and can thus face strict liability for damages caused by products sold on its platform. Although the analysis is state-specific, Sigismondi may serve as an important decision for allowing product defect claims to proceed against Amazon when so often the third-party vendor that lists the product is unlocatable, insolvent, or not subject to the jurisdiction of United States courts.

In recent years, Amazon has been fighting product liability claims across the country. Amazon argues it is not a “seller” under states’ product liability laws but is merely an online marketplace that facilitates the sale of products by third-party vendors. What constitutes a “seller” in a particular state must be evaluated state-by-state, but various courts have accepted Amazon’s argument that it is not a “seller.” These decisions are based on Amazon’s level of control in the product sale and often focus on a finding that Amazon did not convey possession of the product or transfer its title.

Reprinted courtesy of Michael L. DeBona, White and Williams

Mr. DeBona may be contacted at debonam@whiteandwilliams.com

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Luxury Skyscraper Is Sinking But People Live There

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Coffee cup sitting on top of news

Pillsbury's Construction & Real Estate Law Team discusses how the Biden administration will use infrastructure funds to upgrade 85 airports across the U.S., the Affordable New York tax provision expires, homebuyers in China refuse to pay mortgages, and more.

Real Estate & Construction News Round-Up (07/13/22)

Sunday, August 7, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

The Biden administration will use infrastructure funds to upgrade 85 airports across the U.S., The Affordable New York tax provision expires, homebuyers in China refuse to pay mortgages, and more.

  • Hines, a Houston-based real estate giant, set a target of its 1,530 properties in 28 countries being net-zero operational carbon by 2040. (John Egan, Innovation Map)
  • The Biden administration announced it will spend roughly $1 billion from the infrastructure package to upgrade 85 airports across the country, including terminals and other facilities. (Jeff Mordock, The Washington Post)
  • The Affordable New York tax provision, which offered a property tax exemption for housing projects that include a percentage earmarked for lower-income renters, expired in June, creating an unsettled future for the city’s multifamily development. (Rebecca Picciotto, The Wall Street Journal)
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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Chain links

This post provides guidance to contractors, subcontractors, suppliers, and others to ensure compliance with contractual change order requirements in the event work on a construction project is impacted by supply chain delays.

Supply Chain Delay Recommendations

Sunday, August 7, 2022 — Denise Motta - Gordon & Rees Construction Law Blog

This Bulletin provides guidance to contractors, subcontractors, suppliers, and others to ensure compliance with contractual change order requirements in the event work on a construction project is impacted by supply chain delays.

Contract Protection Tips:
The construction industry is being impacted substantially by inability to obtain necessary construction products due to supply chain issues. Most construction contracts do not accommodate time extensions due to supply chain impacts. To address this gap in contract terms, we recommend including language such as: “lack of or failure of or other inability to obtain necessary transportation, fuel, power, materials, machinery, equipment or facilities, delays caused by other contractors, subcontractors or their subcontractors of any tier, or any materialmen or suppliers” as part of the defined force majeure event under the contract.

This provision can be included in the Change Order section of the contract as well by including a provision such as: “If the Work is delayed by the failure of or other inability to obtain necessary transportation, fuel, power, materials, machinery, equipment or facilities, delays caused by other contractors, subcontractors or their subcontractors of any tier, or any materialmen or suppliers, contractor shall be entitled to a change order for its costs and time associated with the delay.”

Reprinted courtesy of Denise Motta, Gordon Rees Scully Mansukhani, LLP

Ms. Motta may be contacted at dmotta@grsm.com

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Water

Valuable oyster beds off the Kent coast were polluted by illegal discharges.

UK Agency Seeks Stricter Punishments for Illegal Wastewater Discharges

Sunday, August 7, 2022 — Peter Reina - Engineering News-Record

Bosses of U.K. water and wastewater utilities that are responsible for illegal, serious pollution should be jailed, said Emma Howard Boyd, head of the government's Environment Agency. She made the recommendation along with release of the agency’s annual report on the nine major companies, which recorded the worst environmental performance in a decade.

Reprinted courtesy of Peter Reina, Engineering News-Record

Mr. Reina may be contacted at reina@btinternet.com

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Amsterdam boat canal

An idea that was once a fantasy is making progress in Busan, South Korea. The challenge will be to design settlements that are autonomous and sustainable.

Floating Cities May Be One Answer to Rising Sea Levels

Sunday, August 7, 2022 — Adam Minter - Bloomberg

Thanks to climate change, sea levels are lapping up against coastal cities and communities. In an ideal world, efforts would have already been made to slow or stop the impact. The reality is that climate mitigation remains difficult, and the 40% of humanity living within 60 miles of a coast will eventually need to adapt.

One option is to move inland. A less obvious option is to move offshore, onto a floating city.

It sounds like a fantasy, but it could real, later if not sooner. Last year, Busan, South Korea's second-largest city, signed on to host a prototype for the world's first floating city. In April, Oceanix Inc., the company leading the project, unveiled a blueprint.

Representatives of SAMOO Architects & Engineers Co., one of the floating city's designers and a subsidiary of the gigantic Samsung Electronics Co., estimate that construction could start in a "year or two," though they concede the schedule might be aggressive. “It's inevitable,” Itai Madamombe, co-founder of Oceanix, told me over tea in Busan. “We will get to a point one day where a lot of people are living on water.”

Reprinted courtesy of Adam Minter, Bloomberg
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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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