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Ripple in water

A Cumulative impact claim is commonly referred to as the unforeseeable ripple effect of changes, i.e., the death by a thousand cuts.

Cumulative Impact Claims and Definition by Certain Boards

Friday, June 21, 2024 — David Adelstein - Florida Construction Legal Updates

What is a cumulative impact claim? This is commonly referred to as the unforeseeable ripple effect of changes, i.e., the death by a thousand cuts. Cumulative impact claims refer to a disruption on productivity based on the cumulative impact of changes and their impact on unchanged work. Cumulative impact claims are difficult claims to prove, particularly based on the causation standpoint (and argument they could be released based on change order language). If pursuing or considering a cumulative impact claim, you will need to work with a consultant(s) and lawyer that understand the dynamic of these claims to best maximize your arguments and recovery from a causation and damages standpoint. Cumulative impact damages are real. They occur. But they are not damages you can just throw out there or use loosely and expect to develop traction on compensation.

Below is how cumulative impact claims are defined by certain Boards of Contract Appeals. The definitions are important.

In Appeal of Centex Bateson Construction, Co., Inc., 9901 BCA P 30153, VABCA 4613 (VABCA 1998), the Board explained:

Direct impact, as the immediate and direct effect of a change on unchanged work, is considered foreseeable.

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

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

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Golden key on payment and other words

Chipping away at the federal law claims – the claims forming the asserted basis for federal court jurisdiction for the case – the court first dispensed with the Prompt Payment Act claim.

Construction Litigation Roundup: “A Less Than Valiant Effort”

Friday, June 21, 2024 — Daniel Lund III - Lexology

A Miller Act claimant in federal court in New Jersey in relation to a VA medical center project found itself on the wrong end of the law and was sent packing by the court.

The claimant had supplied products for the project to general contractor Valiant Group, LLC, pursuant to a purchase order from the GC. The general contractor allegedly refused to pay the supplier, leading to the claim against the GC and its payment bond surety in the amount of $126,900. The supplier also sought recovery under the federal Prompt Payment Act, 31 U.S.C. §§ 3901-07. State law claims were asserted as well.

Chipping away at the federal law claims – the claims forming the asserted basis for federal court jurisdiction for the case – the court first dispensed with the Prompt Payment Act claim. According to the court, allegations that the general contractor had “wrongfully and improperly withheld remuneration… despite [having] ‘received payment from the U.S. Department of Veterans Affairs’" – whether or not accurate – did not trigger the Act. The court wrote:

“The Prompt Payment Act was enacted ‘to provide the federal government with an incentive to pay government contractors on time by requiring agencies to pay penalties . . . on certain overdue bills . . . [and] was later amended to include provisions applicable to subcontractors.’… Absent from the Act, however, are ‘any explicit provisions for subcontractor enforcement if the prime contractor fails to make timely payment.’… This is because the Act ‘merely requires that the prime contractor's contract with the subcontractor include the specified payment clause. [It] does not require the prime contractor to actually make payments to the subcontractor[.]’… The Act, therefore, does not ‘give subcontractors an additional cause of action for an alleged breach by a general contractor of a subcontract.’”

Reprinted courtesy of Daniel Lund III, Phelps

Mr. Lund may be contacted at daniel.lund@phelps.com

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Question marks on black background red in circle

Designers and engineers can create bridges that also serve as monumental artworks and civic landmarks. Why do new spans in the US so often fall short?

Can Baltimore Get a Great Bridge?

Friday, June 21, 2024 — James S. Russell - Bloomberg

When the Francis Scott Key Bridge collapsed after being struck by a massive container ship early in the morning on March 26, six highway workers were killed, a segment of the Baltimore Beltway was severed, the Port of Baltimore was largely shut down for two months — and the city lost an important piece of its identity.

Before its destruction made it famous, the Key Bridge was not really a landmark like San Francisco’s Golden Gate Bridge or other charismatic spans that serve as symbols for their host cities. Built in 1977, it was a more utilitarian structure, with brawny trusswork that evoked the city’s industrial past, and an important job to do: It could carry the fuel-hauling tanker trucks that are prohibited from traveling through two nearby tunnels. Its visibility at the mouth of Baltimore’s harbor marked it as a prominent link between the modest communities that line the blue-collar waterfront and the glass apartment and office towers that now define the downtown skyline.

Reprinted courtesy of James S. Russell, Bloomberg

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New York City Nabs Stretch of Brooklyn Coastline to Redevelop

June 21, 2024 — Stephen Lee - Bloomberg

New York City will take control of 120 acres of Brooklyn’s coastline, intending to develop a rugged patch of land into housing, retail, green space, and a modern, environmentally friendly port.

The no-cash deal, which will be announced Tuesday, represents the city government’s biggest real estate transaction in terms of physical size in at least two decades. The redevelopment zone stretches more than a mile, from the southern edge of Brooklyn Bridge Park down to the Red Hook neighborhood, and in some places a block inland. Most of that land is currently controlled by the Port Authority of New York and New Jersey.

Only A Few Insurance-Related Bills Enacted By The Hawaii Legislature

June 21, 2024 — Tred R. Eyerly - Insurance Law Hawaii

Several insurance-related bills were introduced by the Hawaii Legislature, but only a few were passed before the session ended on May 3, 2024. Here are the bills that were passed by the Legislature and sent to the Governor for signature.

HB 1686 - Increases the reimbursement rate for chiropractic treatments for personal injury protection benefits under motor vehicle insurance from $75 to $100.

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

Builder Toll Brothers Boosts Guidance as Orders Beat Estimates

June 21, 2024 — Prashant Gopal - Bloomberg

Toll Brothers Inc. raised its fiscal full-year outlook as the luxury builder reported stronger-than-expected orders with buyers, starved for inventory of previously owned properties, flocking to newly built homes.

  • For the three months through April, purchase contracts rose 30% from the same period a year earlier to 3,041, the company said Tuesday in a statement. Analysts in a Bloomberg survey expected 3,004 orders on average.

Unlocking the Advantages of Arbitration Over Litigation: Optimizing Time and Cost Savings

June 21, 2024 — Beverley BevenFlorez – CDJ Staff

ConsensusDocs presents a webinar discussing the value of Arbitration. The event will cover how to “opt into rules to limit discovery or the number of panelists hearing your case to reduce costs.” Attendees “will also gain insights into how arbitration decisions do not imply split-the-baby in decisions which is commonly perceived.” In addition, the seminar will provide direction on “how to choose a panel with both industry expertise and who will follow appropriate legal standards in conducting a binding decision.”

July 18th, 2024
Virtual Event

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Pillsbury's Real Estate & Construction Team discusses recent industry news.

Real Estate & Construction News Roundup (5/29/24) – Megaprojects on the Rise, Agency Guidance for CRE, and an Upbeat Forecast for Commercial Real Estate Investment

Friday, June 21, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

In our latest roundup, summer travelers seek alternative lodging options, purpose-built wellness real estate investments grow, bonds backed by CRE debt hit are hit with losses, and more!

  • Across all property types, purpose-built wellness real estate investment has grown dramatically in recent years, including properties with wellness features as a focus. (Mary Salmonsen, Multifamily Dive)
  • The travelers on the road this summer will have different demographics, budgets and reasons for travel and different preferences on accommodations, with more travelers opting for alternative housing options. (Noelle Mateer, Hotel Dive)
  • Megaprojects are on the rise, with massive projects, from rail tunnels to computer chip factories, having myriad stakeholders and lengthy timelines that span political administrations. (Julie Strupp, Construction Dive)
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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Two businessmen shaking hands

Consent decree includes cleanup as well as health and environmental monitoring for the affected community of East Palestine, Ohio.

Norfolk Southern Agrees to $310M Settlement With Feds Over 2023 Ohio Derailment

Friday, June 21, 2024 — James Leggate - Engineering News-Record

Norfolk Southern Corp. has agreed to pay more than $310 million and implement safety improvements as part of a settlement with the U.S. Environmental Protection Agency and U.S. Dept. of Justice over the disastrous February 2023 train derailment in East Palestine, Ohio, officials and the company announced May 23.

Reprinted courtesy of James Leggate, Engineering News-Record

Mr. Leggate may be contacted at leggatej@enr.com

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Denied red stamp

Lam suffered a loss to her home due to Hurricane Ian.

Insurer's Motion to Dismiss "Redundant Claims" Denied

Friday, June 21, 2024 — Tred R. Eyerly - Insurance Law Hawaii

The insurer's motion to dismiss was more appropriate for an eventual summary judgment motion and was consequently denied. Sivan Lam v. Scottsdale Ins. Co., 2024 U.S. Dist. LEXIS 81262 (M.D. Fla. April 12, 2024).

Lam suffered a loss to her home due to Hurricane Ian. When only a portion of the claim was paid, Lam sued his insurer, Scottsdale, for breach of contract (Count I) and declaratory relief (Count II).

Scottsdale argued that Lam's request for declaratory relief was redundant of her breach of contract claim. The court noted that Rule 12 (b)(6), Fed. R. Civil P., was a vehicle to challenge a claim's sufficiency. Redundancy was not insufficiency, and it was not a ground for dismissal under Rule 12 (b)(6).

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

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

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Lawyer talking to judge illustration

Traub Lieberman Partner Michael Logan and Associate Christian Romaguera achieved a voluntary dismissal in favor of their Client, a construction company.

Traub Lieberman Partner Michael Logan and Associate Christian Romaguera Obtain Voluntary Dismissal in Favor of Construction Company Under the Vertical Immunity Doctrine

Friday, June 21, 2024 — Christian Romaguera - Traub Lieberman

In a lawsuit filed in Orange County, Traub Lieberman Partner Michael Logan and Associate Christian Romaguera achieved a voluntary dismissal in favor of their Client, a construction company. The Plaintiff claimed that he was seriously and permanently injured, and demanded $1,000,000.00. The Plaintiff turned out to be an employee of our Client’s subcontractor, and the Plaintiff received worker’s compensation benefits from his employer, the subcontractor. Under Florida Statute § 440.11(1), “The liability of an employer . . . shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee . . .” When a subcontractor provides workers’ compensation benefits to its injured employee, workers’ compensation immunity would not only apply to the subcontractor but to the general contractor as well. This is also known as “vertical immunity.” The Traub Lieberman team filed a detailed motion and memorandum of law to argue its case, and the Plaintiff voluntarily withdrew the claim against the Client just before that motion was set to be argued before the Judge.

Reprinted courtesy of Christian Romaguera, Traub Lieberman

Mr. Romaguera may be contacted at cromaguera@tlsslaw.com

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Construction worker pinning something to uniform

This post will explain the levels of protection that a company can seek under the SAFETY Act.

SAFETY Act Part II: Levels of Protection

Friday, June 21, 2024 — Lorelie S. Masters, Kevin W. Jones & Charlotte Leszinske - Hunton Insurance Recovery Blog

Part I of this series, SAFETY Act is Powerful Protection Against Emerging Liabilities, addressed the benefits of obtaining SAFETY Act coverage, including:

  • From a reputational perspective, SAFETY Act protection provides benefits even absent a security incident: it demonstrates that a knowledgeable federal agency has examined the relevant technology and determined that it is both safe and effective.
  • SAFETY Act protection can benefit companies taking steps to enhance the security of their physical premises and operations, or their cybersecurity defenses, to reduce their potential liability and enhance their reputation.
  • Other benefits include—depending on the level of protection—powerful liability protections including exclusive federal jurisdiction and choice of law for the venue where the incident occurred, caps on liability, prohibitions on punitive damages, and government contractor immunity.

This post will explain the levels of protection that a company can seek under the SAFETY Act.

Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth, Kevin W. Jones, Hunton Andrews Kurth and Charlotte Leszinske, Hunton Andrews Kurth

Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Jones may be contacted at kjones@HuntonAK.com
Ms. Leszinske may be contacted at cleszinske@HuntonAK.com


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Welcome to Las Vegas Sign

This personal injury claim arose from an incident whereby Plaintiff allegedly tripped and fell in front of the client’s business and sustained a traumatic brain injury.

Las Vegas Team Obtains Complete Dismissal of a Traumatic Brain Injury Claim

Friday, June 21, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

Congratulations to Partner, Jeffrey W. Saab and Associate, Shanna B. Carter on their successful Motion to Dismiss!

This personal injury claim arose from an incident whereby Plaintiff allegedly tripped and fell in front of the client’s business and sustained a traumatic brain injury. Initially, a default was entered against the client, and BWB&O was retained to unwind the same, and then defend against the claim. However, during the initial investigation, Shanna uncovered a defect in the service of the Complaint which invalidated not only the default, but more importantly service of the Complaint itself. Working as a team, Shanna performed the research and writing, and Jeff argued the Motion to Dismiss which was granted dispensing of the entire claim.

Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
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Construction Worker Dies, Another Hurt After Fall from Scaffold on Chicago's South Side

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White and Williams practice groups and attorneys have been ranked in this year's Chambers USA 2024 Guide.

White and Williams Celebrates Chambers 2024 Rankings

Friday, June 21, 2024 — White and Williams LLP

White and Williams practice groups and attorneys have been ranked in this year's Chambers USA 2024 Guide. Among the rankings, the firm has been recognized in the areas of Insurance and Real Estate: Finance in Pennsylvania, and Construction in Maryland.

Chambers recognized Tim Davis, Managing Partner of the Firm, and Nancy Frantz, Chair of the Real Estate Finance Group, both of whom were recognized for Real Estate: Finance. Chambers also ranked Steven Coury, Managing Partner of the Stamford, CT Office, for Real Estate, as well as Randy Maniloff, Partner, and Patricia Santelle, Chair Emeritus/Former Managing Partner and Chair of the Executive Committee, for Insurance. David Marion, Senior Counsel and Chambers’ Senior Statespeople (22-years ranked) was recognized for Litigation: General Commercial. Partner David Gilliss, Managing Partner of the Maryland office, was recognized for Construction and Amy Vulpio, Co-Chair of the Financial Restructuring and Bankruptcy Practice, was recognized for Bankruptcy/Restructuring.

In one review of Tim Davis, a client described, "He's been around a long time; he's seen it all and has an instinctive feel for getting to the right outcome." Davis has been listed for the past four years and was described by Chambers as, “experienced in representing clients, including insurance companies, banks and investments funds, in a wide variety of real estate finance transactions.”

Reprinted courtesy of White and Williams LLP
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Construction equipment

In the wake of the recent bridge collapse in Baltimore, Construction Angels did what it was founded to do: stepped up to serve the families devastated by the loss of six road-crew workers.

Angels Among Us

Friday, June 21, 2024 — Maggie Murphy - Construction Executive

In the early morning hours of March 26, 2024, an outbound cargo ship in the Port of Baltimore unexpectedly lost power as it churned toward the Francis Scott Key Bridge. Authorities had just minutes to stop vehicular traffic before the massive vessel—985 feet long and 157 feet wide, nearly as tall as the Eiffel Tower if stood on end—crashed headlong into one of the bridge’s support piers. Quick-acting dispatchers were able to stop the flow of traffic in time, but overnight work crews filling potholes on the bridge didn’t have enough warning. Six workers lost their lives when the bridge collapsed.

On top of bringing immense grief, construction fatalities can be financially devastating to the surviving families. Enter Construction Angels, a nonprofit that provides financial assistance, grief counseling and scholarships to families of fallen construction workers. When founder Kristi Ronyak first heard news of the Key Bridge collapse, she immediately jumped into action. “We started getting calls just hours after the crash,” Ronyak says. “When I first heard the news, my heart sank, and I just started crying.

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



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Red pin in Fraud

Bloomberg reports on Homeowners of America Insurance Company v. China Construction Bank Corporation.

China Construction Bank Sued in US Over Reinsurance Fraud Losses

Friday, June 21, 2024 — Robert Burnson - Bloomberg

China Construction Bank Corp., the nation’s third-largest commercial lender, was accused in a US lawsuit of enabling a massive fraud in the reinsurance industry that left companies with “monumental losses” and sinking stock prices.

The bank allowed employees to conspire with Israeli insurance startup Vesttoo Ltd. to sell reinsurance policies that weren’t real, according to a complaint filed late Thursday by the Porch Group in Manhattan federal court.

Vesttoo filed for Chapter 11 bankruptcy in August after it was accused of using some $2 billion of fraudulent letters of credit.

The Porch Group said that its unit Homeowners of America Insurance Co. lost tens of millions of dollars when its purported $300 million letter of credit proved worthless.

“Not only did HOA incur colossal losses, but news of its exposure to the fraud perpetrated by Vesttoo and CCB shocked the market and imposed severe losses on Porch Group’s shareholders as its stock price plummeted,” according to the suit.

Reprinted courtesy of Robert Burnson, Bloomberg
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Haight Brown & Bonesteel's San Diego office expanded to include two new attorneys.

Haight’s San Diego Office is Growing with the Addition of New Attorneys

Friday, June 21, 2024 — Haight Brown & Bonesteel LLP

The San Diego office has recently added two attorneys to the team.

Amanda McKechnie has joined the Construction Law Practice Group. Amanda has extensive experience representing national developers, owners, general contractors, design professionals and subcontractors in complex construction litigation.

Arash Yahyai has joined the Construction Law and General Liability Practice Groups. Arash focuses on defending actions involving complex construction defect, insurance defense, premises liability, product liability, catastrophic personal injury and other general liability related cases.

Reprinted courtesy of Haight Brown & Bonesteel LLP
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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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