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For plaintiff’s claims to be subject to the arbitration provision in the purchase contract, they must not only arise from the purchase contract, but also have a significant relationship to the purchase contract.

Disputes Will Not Be Subject to Arbitration Provision If There Is No “Significant Relationship”

Monday, November 29, 2021 — David Adelstein - Florida Construction Legal Updates

As you know from prior articles, arbitration is a creature of contract. This means if you want your disputes to be resolved by binding arbitration, as opposed to litigation, you want to make sure there is an arbitration provision in your contract. If there are certain types of disputes you do not want subject to arbitration, you want to specify those types of disputes/claims in your arbitration provision. If you are not sure, make sure to discuss the pros and cons of arbitration with your counsel when drafting and negotiating the contract. However, even with a broad arbitration provision, there are times where a dispute may still fall out of the scope of the arbitration provision, i.e., the dispute is not arbitrable. If this occurs, such dispute will be resolved by litigation. Parties that have buyer’s remove and do not want to arbitrate their dispute may try to make this argument that the dispute is not subject to the scope of the arbitration provision. There are times this argument carries weight because the dispute has no significant relationship to the agreement with the arbitration provision, as shown below.

In Deweees v. Johnson, 46 Fla. L. Weekly D2356b (Fla. 4th DCA 2021), a plaintiff purchased a home in a private residential community. The purchase contract with the developer contained a broad arbitration provision that materially provided that, “all post-closing claims, disputes, and controversies…between purchaser and seller will be resolved by binding arbitration except those arising under section G.5 and G.6 above.” Dewees, supra. Sections G.5 and G.6 provided that the purchaser will not interfere in the sales process with other purchasers and will not interfere with workmen during the construction process. There was also a workmanship and structural defect warranty for the dwelling that also contained an arbitration provision.

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

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

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Businesswoman holding hands up in stop gesture

The landowner sued for trespass, nuisance, takings, and inverse condemnation.

Georgia Local Government Drainage Liability: Nuisance and Trespass

Monday, November 29, 2021 — David R. Cook Jr. - Autry, Hall & Cook, LLP

A long-running dispute between a landowner and a municipality has escalated to the Georgia Court of Appeals and in the federal court for the Northern District of Georgia.[1] The municipality maintained a stormwater system that discharged on property uphill from the landowner’s property. The uphill property was used as an illegal dump, and debris washed downhill from the dump to the landowner’s property. The debris clogged the landowner’s surface water drainage system, which caused flooding of the property and a building.

State Case
The landowner sued for trespass, nuisance, takings, and inverse condemnation. While the other claims were barred by the four-year statute of limitations, the court addressed the plaintiff-landowner’s claim for continuing nuisance.

Municipalities may be liable when they negligently construct or maintain a sewer or drainage system that causes repeated flooding of property, such that it results in a continuing, abatable nuisance.[2] For a municipality to be liable for maintenance of a nuisance:

the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and, if the municipality did not perform an act creating the dangerous condition, . . . the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.[3]

Reprinted courtesy of David R. Cook Jr., Autry, Hall & Cook, LLP

Mr. Cook may be contacted at cook@ahclaw.com

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This article introduces general background of the Act, identifies subcontractors who may qualify for protections under the Act, and suggests ways to preserve the rights as prime contractors.

Miller Act CLAIMS: Finding Protections and Preserving Your Rights

Monday, November 29, 2021 — Diana Lyn Curtis McGraw - ConsensusDocs

The Miller Act (the “Act”), which requires the prime contractor to furnish a performance bond and a payment bond to the government, protects “all persons supplying labor and materials carrying out the work provided for in the contract.”[1] Despite its broad language, courts have limited the parties who may actually assert a claim under the Act. This article introduces general background of the Act, identifies subcontractors who may qualify for protections under the Act, and suggests ways to preserve the rights as prime contractors.

Brief Background of the Miller Act

Under the Miller Act, there are two types of bonds the prime contractor furnishes to the government in a federal construction contract of more than $100,000[2]

1. Performance Bond

A performance bond protects the United States and guarantees the completion of the project in accordance with the contract’s terms and conditions.[3] This bond must be with a surety that is satisfactory to the officer awarding the contract and in the amount the officer considers adequate for government protection.[4] If a contractor abandons a project or fails to perform, the bond itself will cover the government’s cost of substitute performance. Thus, the performance bond disincentivizes contractors from abandoning projects and provides the government with reassurance that an abandonment will not create delays or additional expenses.

Reprinted courtesy of Diana Lyn Curtis McGraw, Fox Rothschild LLP

Ms. McGraw may be contacted at dmcgraw@foxrothschild.com

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Input Prices Decline in September but Remain Higher on a Yearly Basis

November 29, 2021 — ABC - Construction Executive

Construction input prices declined 0.5% in September, according to an Associated Builders and Contractors analysis of U.S. Bureau of Labor Statistics’ Producer Price Index data. Nonresidential construction input prices fell 0.4% for the month.

Despite the monthly decline, construction input prices are 18.9% higher than in September 2020. Nonresidential construction input prices increased 20.2% over that span. Steel mill products experienced the largest year-over-year increase, rising 134.2%, while iron and steel prices nearly doubled, rising 96.3%. All three energy subcategories experienced significant price increases. Natural gas prices were up 120.9% compared to last year, while crude petroleum and unprocessed energy materials prices increased 89.1% and 84.8%, respectively.

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

For All of Modular Construction’s Appeal, Beware of Risks and Insurance Complications

November 29, 2021 — Kirk Chamberlain - Construction Executive

There are good reasons modular and prefabricated construction has been undergoing a low-velocity explosion for the last decade.

Quality is boosted when components from plumbing to wall panels to entire rooms are assembled in a controlled environment versus onsite. Safety is improved as controlled conditions cut down on slips, falls and other risks on a jobsite exposed to the elements. Productivity gains of 30% to 50% are a factor too, given the greater output possible for the same man hour as traditional construction. And modular construction delivers on sustainability as there is less materials waste.

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

Meritage Homes Awards Mortgage-Free Home to Navy Petty Officer First Class and His Family in Time for Veterans Day

November 29, 2021 — Meritage Homes

SCOTTSDALE, Ariz., Nov. 10, 2021 (GLOBE NEWSWIRE) -- Meritage Homes (NYSE:MTH) and Operation Homefront have partnered to thank a military family for their service by presenting them with a brand new, mortgage-free and energy-efficient Meritage home as part of the Permanent Homes for Veterans program. Prior to Veteran's Day, Navy Petty Officer First Class Garfield Johnson, his wife, Tia, and their two young children received the keys to their 1,840 square-foot, single-story home located in the new Bristol Meadows community in Zephyrhills near Tampa, Florida.

The Permanent Homes for Veterans program has placed more than 700 military families in mortgage-free homes and deeded over $90 million in home equity. This is the fourteenth new home Meritage Homes has constructed and donated to military families.

For more information about Meritage Homes Corporation visit www.meritagehomes.com.  
For more information about Operation Homefront visit www.OperationHomefront.org.  
For more information about Start Strong, Stay Strong visit www.operationhomefront.org/startstrongstaystrong. 

AGC Construction Safety and Health Conference

November 29, 2021 — Beverley BevenFlorez – CDJ Staff

The Associated General Contractors of America (AGC) presents a three-day seminar focusing on Safety and Health in the Construction Industry. Attendees of the 2022 conference will have the following opportunities:

  • Reconnect with their peers in the construction industry
  • Expand their knowledge and skills while earning continuing education credits
  • Keep up with the regulatory and legislative issues impacting construction
  • Find solutions to their company’s greatest challenges
  • Catch up on the latest construction safety products and innovations
  • January 12th-14th, 2022
    Renaissance Phoenix Glendale Hotel & Spa
    9495 W. Coyotes Blvd.
    Glendale, AZ 85305

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

Construction Standard of Care Expert Witness area areaarea

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

Question mark in maze

By limiting allowed delays in payment to the deadline for initiation of litigation of construction claims, litigation can be avoided in some cases and more quickly resolved in others.

Contractual “Pay if Paid” and “Pay when Paid” Clauses? What is a California Construction Subcontractor to Do?

Monday, November 29, 2021 — William L. Porter - Porter Law Group

The Situation California Construction Subcontractors Face in Obtaining Payment:

California construction subcontractors find themselves faced with a significant payment issue every time they are asked to sign a subcontract on a major project. Invariably, the subcontract the prime contractor presents to the subcontractor for signature will contain a clause by which the prime contractor imposes a condition on payment from the prime contractor to the subcontractor. The condition will be either one or the other of two general types. Either the prime contractor will specify that it never has to pay the subcontractor if the prime contractor itself is not paid by the owner (a “pay-if-paid” clause), or the prime contractor will pay the subcontractor only after the prime contractor has first exhausted all its efforts to obtain payment from the owner through litigation, arbitration or otherwise, possibly delaying payment to subcontractors by months or even years (a “pay-when-paid” clause).

Goal of the Article:

The goal of this article is to draw a distinction between the pay-if-paid and pay-when-paid clauses, discuss the legality of these clauses in California, the problems these clauses create for subcontractors, advise the reader of helpful recent legal developments in this area of law, address the possibility of a further legislative remedy to address the issue, and discuss what the subcontractor might do to protect itself while awaiting a legislative remedy that may or may not ever arrive.

Reprinted courtesy of William L. Porter, Porter Law Group

Mr. Porter may be contacted at bporter@porterlaw.com

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Law book open on desk in front of bookshelf

A hailstorm damaged three buildings owned by BonBeck.

Tenth Circuit Finds Appraisal Can Decide Causation of Loss Under Colorado Law

Monday, November 29, 2021 — Tred R. Eyerly - Insurance Law Hawaii

The Tenth Circuit determined that the Colorado Supreme Court would agree with other state courts that appraisers can decide the causation of a loss. Bonbeck Parker, LLC v. The Travelers Indem. Co. of Am., 2021 U.S. App. LEXIS 29607 (10th Cir. Oct. 1, 2021).

A hailstorm damaged three buildings owned by BonBeck. A claim was submitted to Travelers under BonBeck's commercial property policy. Travelers acknowledged that some hail damage occurred to all the buildings except for the roofs. Travelers paid $34,200 for damage to the buildings. Coverage for the roof damage was denied because it resulted not from the hail damage but from uncovered events like wear and tear, deterioration, and improperly installation.

BonBeck requested an appraisal. Travelers insisted that the appraisal would only determine the amount of loss of covered claims. BonBeck rejected these conditions and Travelers filed suit.

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

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

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Judges standing behind bench

Home Insurance Company v. Cornell-Dubilier Electronics Incorporated, et al., has a unique and convoluted procedural history.

NJ Supreme Court Declines to Review Decision that Exxon Has No Duty to Indemnify Insurers for Environmental Liability Under Prior Settlement Agreement

Monday, November 29, 2021 — Patricia B. Santelle & Laura Rossi - White and Williams

On November 1, 2021, in a single-sentence Order, the Supreme Court of New Jersey denied a request for review of a decision that ExxonMobil Corporation (Exxon) did not have to indemnify certain of its insurers over environmental liabilities as required by a previous settlement agreement. The case, entitled Home Insurance Company v. Cornell-Dubilier Electronics Incorporated, et al., has a unique and convoluted procedural history but, in short, the denial of review leaves standing a holding by the intermediate appellate court that the insurers’ “untimely notice actually prejudiced Exxon, violated the no-prejudice rule, and breached the covenant of good faith and fair dealing.” The court declined to consider the question framed by the insurers: whether the importance of enforcing settlement agreements outweighs New Jersey’s entire controversy doctrine.

The matter dated back almost thirty years, when the New Jersey Department of Environmental Protection notified the Appearing London Market Insurers (ALMI) of the potential liability of Cornell-Dublier Electronics (CDE), a former indirect subsidiary of Exxon, for pollution at a site in New Jersey. Coverage litigation followed in New Jersey, which ALMI defended under policies issued to CDE. Exxon was not named in the CDE suit nor were the policies which ALMI issued to Exxon at issue in that case; Exxon instead had its own pollution coverage case pending in New York. In June 2000, Exxon and its insurers, including ALMI, entered into a settlement agreement which (a) required Exxon to indemnify the insurers for any environmental liability claims involving its subsidiaries, and (b) provided for application of New York substantive law and litigation in New York City court for any dispute between the parties under it.

Reprinted courtesy of Patricia B. Santelle, White and Williams and Laura Rossi, White and Williams
Ms. Santelle may be contacted at santellep@whiteandwilliams.com
Ms. Rossi may be contacted at rossil@whiteandwilliams.com


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Trophy sitting on hill with green background (illustration)

“The attorneys we honor this year in our Women’s Justice Awards are trailblazers. Glass-ceiling breakers . . . . who have improved Missouri’s legal community.” - Liz Irwin, Publisher of Missouri Lawyers Media

Alexus Williams Receives Missouri Lawyers Media 2021 Women’s Justice Pro Bono Award

Monday, November 29, 2021 — Alexus Williams - Lewis Brisbois

St. Louis, Mo. (October 19, 2021) - St. Louis Associate Alexus Williams has received the Missouri Lawyers Media 2021 Women’s Justice Pro Bono Award, which honors women attorneys who have contributed significant effort and time to pro bono work.

In connection with this honor, Ms. Williams was interviewed by Missouri Lawyers Media for its 2021 Women’s Justice Awards (WJA) supplement. In the article featuring Ms. Williams, the publication explained that she has “developed a reputation for helping others” and “has continually found ways to level disparities to make the system work for everyone.” For example, as a member of the Bar Association of Metropolitan St. Louis Executive Committee’s Young Lawyers Division, Ms. Williams co-chaired a committee on racial equity during the civil unrest of 2020.

Ms. Williams told Missouri Lawyers Media, “When I was looking at grad programs, law school was one that seemed like it kind of aligned with what I was passionate about, which was helping people, counseling people, being able to be of assistance in different kinds of situations.” She further noted, “Everyone has to play their part but also everyone needs the opportunity to play their part.”

Reprinted courtesy of Alexus Williams, Lewis Brisbois

Ms. Williams may be contacted at Alexus.Williams@lewisbrisbois.com

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Businessman crossing finish line

Mr. Guldalian secured summary judgment in Pinellas County Circuit Court on behalf of a Homeowner who invited an acquaintance to his house to assist him with hanging a gutter on his roof.

Traub Lieberman Partner Bradley T. Guldalian Wins Summary Judgment in Pinellas County Circuit Court

Monday, November 29, 2021 — Bradley T. Guldalian - Traub Lieberman

On September 20, 2021, Traub Lieberman Partner Bradley T. Guldalian secured summary judgment in Pinellas County Circuit Court in St. Petersburg, Florida, on behalf of a Homeowner who invited an acquaintance to his house to assist him with hanging a gutter on his roof. While he was assisting the Homeowner installing the gutter, the Plaintiff fell from a ladder and sustained a comminuted left intertrochanteric (hip) fracture. The Plaintiff was taken to the hospital, where he underwent open reduction, internal fixation of his left hip fracture. He was hospitalized for five days and released in wheelchair. He incurred more than $70,000 in medical bills and was confined to a wheelchair for two months.

The Plaintiff filed a negligence action against the Homeowner alleging he improperly set up the ladder causing it to become unstable, thereby creating a dangerous condition on the premises which proximately caused his fall. The Plaintiff claimed the Homeowner breached the duty he owed the Plaintiff to provide safe and stable equipment for his use. After engaging in discovery, Mr. Guldalian moved for summary judgment arguing that because the Plaintiff could not explain in his deposition why he fell from the ladder, the Plaintiff could not establish—as a matter of law—the Homeowner was negligent, did anything, or failed to do something, that proximately caused his injury. In support of his argument, Mr. Guldalian submitted the affidavit of an investigator who inspected the ladder after the Plaintiff’s fall and found no defect in, on, or about the ladder, and affirmed that the area where the ladder was set up had no raised or defective areas which could have caused the ladder to become unstable.

Reprinted courtesy of Bradley T. Guldalian, Traub Lieberman

Mr. Guldalian may be contacted at bguldalian@tlsslaw.com

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Businessman signing document

What’s a contractor to do when it is acquired/merged with another firm, is restructured or goes through a variety of other types of corporate transaction?

Novation Agreements Under Federal Contracts

Monday, November 29, 2021 — Hal Perloff - Construction Executive

A unique aspect of doing business with the federal government is the built-in limits on a contractor’s right to assign the contract or the right to payment under the contract to third parties. The Anti-Assignment Act (41 U.S.C. § 6305) prohibits the transfer of a government contract or interest in a government contract to a third party. An assignment of a contract in violation of this law voids the contract except for the government’s right to pursue a breach of contract remedies.

What’s a contractor to do when it is acquired/merged with another firm, is restructured or goes through a variety of other types of corporate transaction? The Federal Acquisition Regulations recognize that firms involved in government contracts get bought and sold from time to time and includes procedures for the novation of contracts in certain situations to avoid a potential violation of the Anti-Assignment Act.

What Is a Novation?

A novation is a three-party agreement between the United States, the original contractor and the new contractor offering to assume the government contract. The purpose the novation is to allow the government to recognize a new contractor as the successor-in-interest to a government contract and avoid a violation of the Anti-Assignment Act.

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

Mr. Perloff may be contacted at hal.perloff@huschblackwell.com

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Is Mass Timber the Building Material of the Future?

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Construction workers standing in front of crane

To assure a smooth transition, the immediate priority should be to understand the changes and what it means from a usability standpoint.

What to Expect From the New Self-Retracting Devices Standard

Monday, November 29, 2021 — Andre Pelland - Construction Executive

One of the latest and most anticipated changes to occur this year relevant to fall protection is the publishing of the ANSI/ASSP Z359.14 2021 revision. Although the effective date isn’t until August 2022, this change is prompting the need for end user to prepare for using and understanding the new terminology performance requirements that will ultimately alter equipment selection criteria.

The reason for its relevance is mostly due to its industry dependence and the increasing popularity of these types of devices. This voluntary consensus standard accounts for a vast portion of the fall protection market equipment and has been adopted as the industry standard, even though it is not the legal requirement. To assure a smooth transition, the immediate priority should be to understand the changes and what it means from a usability standpoint. A clear understanding of what changes devices need to comply will allow users to proceed with a comprehensive transition plan.

What Are the Most Relevant Changes for the User?

Classes
The most significant changes are for Class A and B devices used to designate arrest distances and forces and the introduction of the Class 1 and 2 devices. These classes were known as designators for arresting falls at 24 inches and under with higher forces (Class A), and 54 inches and under with lower forces (Class B). Class 1 devices allow anchoring on overhead anchorages only and limitg freefall to no more than two feet.

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


Mr. Pelland may be contacted at andre.pelland@puresafetygroup.com

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Home project

Dave Beck took charge of risk management just weeks before the COVID-19 pandemic struck.

Building Amid the COVID Challenge

Monday, November 29, 2021 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

At longtime client Clark Construction, Dave Beck took charge of risk management just weeks before the COVID-19 pandemic struck.

David Beck made a big career move last year—just how big, he soon learned. In January 2020, Beck became division president for risk management at Clark Construction Group, a major national builder based in Bethesda, Md., with more than 4,000 employees across the U.S. In business since 1906, Clark has grown from a small, local excavator into one of the country’s best-known providers of construction services.

Beck took up his position at Clark shortly before COVID-19 changed life for everyone. We recently reached out to him to learn how his role has evolved since then.

Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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Bridge with cars in traffic

The 1915Çanakkale bridge in Turkey will be the first motorway link across the Dardanelles Strait.

World's Longest Suspension Bridge Takes Shape in Turkey

Monday, November 29, 2021 — Aileen Cho - Engineering News-Record

It was a long-standing dream—not only of Ersin Arıoğlu, but of a nation. Could a suspension bridge someday cross the Dardanelles Strait in Turkey and provide another link between Europe and Asia? “To build a highway suspension bridge over the Çanakkale Strait has been on the agenda of the Turkish Ministry of Public Works for the last 20 years,” Arıoğlu, co-founder of contractor Yapi Merkezi, wrote in a technical paper. That was in 1994.

Reprinted courtesy of Aileen Cho, Engineering News-Record

Ms. Cho may be contacted at choa@enr.com

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Smoke on black background

There is a limit to how much federal taxpayers should have to spend to fight fires and cull trees so that well-off Californians can live near hiking trails.

California’s Wildfire Dilemma: Put Houses or Forests First?

Monday, November 29, 2021 — Jim Hinch - Bloomberg

As record-breaking fires blacken millions of acres in California and elsewhere in the West this year, politicians are mostly sticking to a standard script in response. President Joe Biden’s proposed budget this year includes a $500 million boost to what the White House calls “forest management” and other efforts to reduce wildfire risk. In July, California lawmakers approved $1.5 billion in similar prevention spending.

The funds are in addition to the $2 billion the federal government spends each year fighting fires — a figure twice what it was 10 years ago and roughly five times more than in the 1980s and 1990s. A study last year found that in 2018, wildfires in California caused $148.5 billion in economic damage, including $46 billion outside the state.

Roughly one in three American houses is now in what forest scientists call the wildland-urban interface, where growing cities, remote workers, second-home buyers and commuters priced out of other housing markets are often pushing into fire-prone regions. A 2017 study found that 900,000 homes in the Western U.S. worth a combined $237 billion were “at high risk for fire damage.”

Reprinted courtesy of Jim Hinch, 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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