CLE Bootcamp

October 11, 2021
Beverley BevenFlorez – CDJ Staff

The 20th annual CLE Bootcamp is a “way to earn a lot of CLE Credits in a unique and entertaining format.” It includes “timely and relevant issues in the law covering a wide span of specialties” such as Real Estate and Housing, Climate Change, Insurance Law, Construction Defects, and three hours of Ethics.

December 7th-8th, 2021
Washington Athletic Club
1325 6th Avenue
Seattle, WA 98101


Corps Releases Final Report on $29B Texas Gulf Coast Hurricane Defense Plan

Person signing paperwork

The study recommends “multiple lines of defense for the Texas coast.”

October 11, 2021
James Leggate - Engineering News-Record

A $28.87 billion plan to protect the Texas Gulf Coast’s residents and infrastructure against hurricanes and storm surge with a series of coastal storm risk management and ecosystem restoration projects took a step closer to reality Sept. 10 with the release of a final feasibility report and final environmental impact statement from the U.S. Army Corps of Engineers and Texas General Land Office (GLO).

Reprinted courtesy of James Leggate, Engineering News-Record

Mr. Leggate may be contacted at https://www.enr.com/leggatej@enr.com

Read the full story...


Broken Buildings: Legal Rights and Remedies in the Wake of a Collapse

Sun sets over old ruined building

It is imperative that construction industry professionals be aware of the legal issues that are raised by such ill-fated events.

October 11, 2021
David J. Pfeffer - Construction Executive

A tragedy transpired on June 24 in Surfside, Florida, when the Champlain Towers South suddenly fell, becoming one of the country’s most deadly unintentional building collapses. It is imperative that construction industry professionals be aware of the legal issues that are raised by such ill-fated events.

Who Is Held Responsible?

Who can be held responsible for such disasters lies among several possible parties:

  • The building’s design professionals, particularly its architects and structural engineers. They are charged with ensuring that the building’s design is safe. They must take many factors into account, including, but not limited to, the materials that are used, the foundation, the weight and the height.
  • General contractors and the subcontractors. General contractors implement the design created by the architects and engineers and are responsible for appropriate materials. The general contractor also supervises the subcontractors aiding with multiple areas of the building’s construction and which also share the responsibility of executing the design and maintaining the building’s structural integrity.

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

Mr. Pfeffer may be contacted at dpfeffer@tarterkrinsky.com


Register and Watch Partner John Toohey Present on the CLM Webinar Series!

Businessman in front of multiple tech devices

John Toohey and his industry peers recently presented on the topic Handling Construction Defect Cases in Arbitration: The Good and the Bad.

October 11, 2021
Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

Bremer Whyte Brown & O’Meara is proud to announce that Partner John Toohey was invited to speak on a panel for the CLM Webinar Series alongside Attorney Rembold Hirschman, and Senior Claims Examiner Brett Reuter. John and his industry peers recently presented on the topic Handling Construction Defect Cases in Arbitration: The Good and the Bad.

About the webinar: Unfortunately, many construction projects end in dispute and the parties frequently find themselves in the middle of uncharted territory – arbitration! Subscribe and watch as they explore the pitfalls, debunk the myths, and discuss the benefits of arbitration in construction disputes.

About John Toohey: John H. Toohey is a Partner for Bremer Whyte Brown & O’Meara, LLP. Mr. Toohey is an A.V. Preeminent rated attorney with a practice focused on contract negotiation and litigation, complex product liability, and construction. He has successfully represented hundreds of clients in alternative dispute resolution and trial, including multiple cases to jury verdict.


Pile Test Likely for Settling Millennium Tower

3D Design Concept of Building Model

Soil removal and vibrations from drilling caused 1 in. of settlement during the upgrade.

October 4, 2021
Nadine M. Post - Engineering News-Record

A pilot pile program to prove the efficacy of a less-disruptive method for the paused foundation fix at the ailing Millennium Tower in San Francisco could begin the week of Oct. 4. Accelerated settling and tilt—caused by a pile upgrade intended to correct settlement of the 645-ft-tall residential condominium—ceased after Aug. 20, when the engineer-of-record halted the $100-million fix.

Reprinted courtesy of Nadine M. Post, Engineering News-Record

Ms. Post may be contacted at postn@enr.com

Read the full story...


Recommendations for Property Owners After A Hurricane: Submit a Claim

Senior couple looking at hurricane damage

The best practice is to submit the claim to ensure no opportunities for coverage are missed.

October 4, 2021
Kelly A. Johnson, Stephanie A. Giagnorio & Gregory D. Podolak - Saxe Doernberger & Vita, P.C.

If you suffered damage as a result of a hurricane, you should submit a claim under any insurance policy you have that might apply. This includes:

  • Flood insurance
  • Homeowner’s insurance
  • Renter’s insurance
  • Condo insurance
  • Auto insurance

Steps for Handling Your Hurricane Insurance Claim

  1. Submit Your Claim. As soon as possible, provide a written notice of claim to your insurer according to the notice provision of your policy. Keep a copy for your records. If you don’t have a copy of your policy, call the insurance company, ask them how to submit your claim, and request a copy of your policy.

Reprinted courtesy of Kelly A. Johnson, Saxe Doernberger & Vita, Stephanie A. Giagnorio, Saxe Doernberger & Vita and Gregory D. Podolak, Saxe Doernberger & Vita

Ms. Johnson may be contacted at KJohnson@sdvlaw.com
Ms. Giagnorio may be contacted at SGiagnorio@sdvlaw.com
Mr. Podolak may be contacted at GPodolak@sdvlaw.com


Delaware District Court Finds CGL Insurer Owes Condo Builder a Duty to Defend Faulty Workmanship Claims — Based on the Subcontractor Exception to the Your Work Exclusion

Lawyer talking to judge illustration

The Delaware District Court denied an insurer’s motion seeking a declaration that it neither needed to defend nor indemnify an insured-builder under a commercial general liability policy.

October 4, 2021
Anthony L. Miscioscia & Laura Rossi - White and Williams

On September 7, 2021, in one of the few decisions addressing the scope of coverage for faulty workmanship under Delaware law, the Delaware District Court denied an insurer’s motion seeking a declaration that it neither needed to defend nor indemnify an insured-builder under a commercial general liability policy.

In this declaratory judgment action, Pennsylvania National Mutual Casualty Insurance Company v. Zonko Builders, the insurer argued that the ongoing underlying action failed to properly plead an “occurrence” in a case alleging damages to a condominium caused by faulty workmanship involving subcontractors.* Zonko Builders (Zonko) served as the general contractor, supervising subcontractors. The Condominium Association sued Zonko for damages allegedly resulting from design and construction deficiencies. The motion was opposed by the Condominium Association, which cross-moved for partial judgment on the pleadings.

In AE-Newark Associates, L.P. v. CNA Insurance Companies, 2001 Del. Super. LEXIS 370 (Del. Super. Ct. Oct. 2, 2001), the Delaware Superior Court found that an insured was entitled to coverage for damages arising from a faulty roof system installed by a subcontractor on behalf of the insured general contractor.

Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Laura Rossi, White and Williams

Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Ms. Rossi may be contacted at rossil@whiteandwilliams.com


Builders Association Seeks to Cut Down Grassroots Green Building Program (Guest Post)

Green leaves after rain

This is, in my opinion, a tragic move in the wrong direction for everyone; builders and homeowners alike. Michael Anschel

October 4, 2021
Christopher G. Hill - Construction Law Musings

For this week’s year end Guest Post Friday here at Musings, we welcome Michael Anschel. Michael is the owner of Otogawa-Anschel Design-Build, a member of BATC, lead the development of and serves as a board member to MN GreenStar, the CEO of Verified Green, Inc., and writes the green blog for Remodeling Magazine Online.

If you have been following the sad state of affairs in Minnesota recently (no not the elections) you might be scratching a bald spot on your head in amazement. To my knowledge it is the only state in which the local builders association [ www.batconline.org ] has actually sued the local Green building program (MN GreenStar [ www.mngreenstar.org ]; going as far as filing a restraining order to keep them from certifying any new homes in the state.

This is, in my opinion, a tragic move in the wrong direction for everyone; builders and homeowners alike.

The builders group widely know for The Parade of Homes claims to have no interest in using the program or the brand MN GreenStar, so why seek to shut the program down? Even the lawyers have been scratching their heads trying to make sense of this bizarre and highly aggressive move. And things just get more bizarre from there.

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


Vermont and New Hampshire Request $7M+ in Federal Disaster Relief for Infrastructure Storm Damage

October 4, 2021
Johanna Knapschaefer - Engineering News-Record

Vermont and New Hampshire have requested more than $7 million in federal disaster relief from the Biden Administration for major infrastructure damage that resulted from a severe storm and flood event in late July and early August.

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


Tips to Identify and Mitigate Risks on Construction Sites

October 4, 2021
Zachary Perecman - Construction Executive

Construction sites are full of dangers—tall heights, sudden drops, distracting noises, heavy equipment and machinery. On a worksite, the safety of the workers is of utmost importance, and accidents can only be avoided if employers, general contractors, site owners and laborers remain vigilant to potential hazards, learn and follow protocols, conduct and reinforce training, and proactively maintain equipment.

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


Court Reminds Insurer that the Mere Possibility Of Coverage at the Time of Tender Triggers a Duty to Defend in a Defect Action

Woman lying next to clock

The Court was asked to assess whether a tender of defense by a concrete masonry subcontractor to its insurer for a construction defect action required a defense.

October 4, 2021
Jatin Patel - Newmeyer Dillion

It has long been the law in California that an insurer’s duty to defend is broader than the duty to indemnify and that the mere possibility of coverage triggers a duty to defend. Nevertheless, insurers still periodically ignore this clear principle and attempt to narrow the scope of the duty to defend. Recently, a Federal District Court issued a reminder to a wayward insurer.

In Pacific Bay Masonry, Inc., v. Navigators Specialty Insurance Company, (N.D. Cal., Sept. 16, 2021, No. C 20-07376 WHA, 2021 WL 4221747 (“Pacific”)), the Court was asked to assess whether a tender of defense by a concrete masonry subcontractor to its insurer for a construction defect action required a defense. Pacific Bay Masonry, Inc. (“PBM”) installed concrete masonry units (also known as “CMUs”) at a new retail shopping center in Oakland, California. The subsequent owner of the retail center filed suit against the general contractor for alleged construction defects, including “efflorescence of roof deck at CMU wall” and “improper waterproofing and flashing of the CMU block wall." The general contractor filed a cross-complaint against PBM.

PBM tendered the defense of the case to Navigators Specialty Insurance Company (“Navigators”) along with copies of a preliminary defect list, a description of defects, interrogatory responses and an expert witness damage analysis. Navigators denied coverage and a duty to defend citing to the work product exclusion of the policy. PBM asked Navigators to reconsider. Navigators held firm on its denial. Two years later, PBM filed suit.

Mr. Patel may be contacted at jatin.patel@ndlf.com


California’s Smart Plan to Let Homeowners Be Homebuilders

October 4, 2021
Virginia Postrel - Bloomberg

California just gave single-family homeowners more control over their property and, for those in high-demand cities, the potential for a big financial windfall. Eight time zones away in the U.K., the Conservative government is revising its planning bill in ways that could give homeowners a similar boon.

The details and contexts differ, but both approaches recognize a political reality. The way to relieve housing shortages is to build more homes, and it’s easier to legalize construction if existing homeowners realize benefits.


NYC Supertall Tower Condo Board Sues Over Alleged Construction, Design 'Defects'

Urban skyline blue background

At 1,396 ft, 432 Park Avenue was the tallest residential building in the Western Hemisphere when it was built, according to its project team.

October 4, 2021
James Leggate - Engineering News-Record

The condominium board at a 1,396-ft-tall residential tower on New York City’s Billionaires’ Row has sued the building’s developers, claiming to have identified more than 1,500 construction and design defects in common areas alone.

Reprinted courtesy of James Leggate, Engineering News-Record

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

Read the full story...


Flawed Welding Faulted in Mexico City Subway Collapse

Grand central terminal

Mexico City's Line 12 collapsed because of faulty structural welds, according to a report issued Sept. 7 by DNV.

October 4, 2021
Jim Parsons - Engineering News-Record

Faulty structural welds have been blamed for the deadly May 3 collapse of an elevated section of Mexico City’s Line 12 subway, according to a report issued Sept. 7 by Norwegian risk management firm DNV.

Reprinted courtesy of Jim Parsons, Engineering News-Record

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

Read the full story...


Standard For Evaluating Delay – Directly from An Armed Services Board Of Contract Appeal’s Opinion

Group of business people

The standard for evaluating delay and the burdens imposed on a party cannot be understated and, certainly, cannot be overlooked.

October 4, 2021
David Adelstein - Florida Construction Legal Updates

Sometimes, it is much better to hear it from the horse’s mouth. That is the case here. The Armed Services Board of Contract Appeal’s (ASBCA) opinion in Appeals of -GSC Construction, Inc., ASBCA No. 59402, 2020 WL 8148687 (ASBCA November 4, 2020) includes an informative discussion of a contractor’s burden when it encounters excusable delay and, of importance, the standard for evaluating delay. It’s a long discussion but one that parties in construction need to know, appreciate, and understand. EVERY WORD IN THIS DISCUSSION MATTERS.

Construction projects get delayed and with a delay comes money because time is money. Many claims are predicated on delay. These can be an owner assessing liquidated damages due to a delayed job or a contractor seeking its costs for delay. Either way, the standard for evaluating delay and the burdens imposed on a party cannot be understated and, certainly, cannot be overlooked. For this reason, here is the discussion on evaluating delay directly from the horse’s mouth in the Appeal of-GSC Construction, Inc.:

The critical path is the longest path in the schedule on which any delay or disruption would cause a day-for-day delay to the project itself; those activities must be performed as they are scheduled and timely in order for the project to finish on time. Wilner v. United States, 23 Cl. Ct. 241, 245 (1991). In Yates-Desbuild Joint Venture, CBCA No. 3350 et al., 17-1 BCA ¶ 36,870, our sister board compiled an excellent and very helpful synopsis of the standards for evaluating delay claims, which I adopt nearly verbatim among the discussion that follows.

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


ASCE Statement on House Failure to Pass the Infrastructure Investment and Jobs Act

Legislative building

This comprehensive bill would bring relief to communities facing strained power grids, aging bridges, leaking water pipes, and spotty broadband.

October 4, 2021
Tom Smith - American Society of Civil Engineers

The following is a statement by Tom Smith, Executive Director, American Society of Civil Engineers (ASCE):

WASHINGTON, DC. – Today, American families and businesses are paying the price while the House plays politics and fails to pass the bipartisan Infrastructure Investment and Jobs Act (IIJA), a historic piece of legislation that would have monumental impacts on the economy, public safety, global competitiveness, and each American's well-being. After decades of kicking the can down the road on meaningful infrastructure legislation, Congress is missing an extraordinary chance to reverse this unsustainable trend with passage of the IIJA, instead choosing to allow critical projects to be delayed.

This legislation was passed in a strong vote by the Senate on August 10th, and almost two months later, it sits on the sidelines as the federal program for transit, roads, and bridges expired on September 30th and projects come grinding to a halt. While other countries are making investments in their future, we are letting politics steal this opportunity to move forward.

It does not have to be this way. This comprehensive bill would bring relief to communities facing strained power grids, aging bridges, leaking water pipes, and spotty broadband. American families do not want to have to wonder if their power will stay on in the next storm, if the bridge connecting their community will close for emergency repairs, or if a week of virtual school means their child will miss out.

We urge the House to pass this bipartisan, commonsense legislation today to create jobs, make goods and services move more quickly and reliably, and make American communities more climate-resilient. Our infrastructure bill has come due, and now is the time to act.

ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.


9th International Society of Construction Law Conference

October 4, 2021
Beverley BevenFlorez – CDJ Staff

Next month, the annual International Society of Construction Law conference will be held in New Zealand. Some of the panel topics include Transparency in Dispute Resolution, Construction Arbitration: Is it Still Relevant, and Negligence Divergence: When is a Duty of Care Owed in Construction. Keynote speaker the Honourable Justice David Hammerschlag (Sydney, Australia) will be speaking on Case Managing Building Litigation During COVID 19: Will We Go Back To The Way We Were and the keynote speaker Sarah Grimmer, Secretary General, Hong Kong International Arbitration Centre (Hong Kong) will speak on Chinese outbound investment in the Pacific region and international dispute resolution.

November 3rd-5th, 2021
Hybrid (Live and Virtual Event)
Cordis Hotel
83 Symonds Street
Auckland 1010
New Zealand


Contractor’s Assignment of Construction Contract to Newly Formed Company Before Company Was Licensed, Not Subject to B&P 7031

Red pencil on Application for license

Attorney Garret Murai discusses Manela v. Stone.

October 4, 2021
Garret Murai - California Construction Law Blog

Add one more to the Business and Profession Code section 7031 archives. In Manela v. Stone, Case No. B302660 (July 1, 2021), the 2nd District Court of appeal held that Section 7031 did not apply to a contractor licensed as a sole proprietor who assigned his contract to his newly formed company although at the time of the assignment the contractor’s individual contractor’s license had not yet been reissued to the incorporated company.

The Manela Case

On January 4, 2015, John Stone doing business as Stone Construction Company entered into a home remodeling contract with Yosef and Nomi Manela. At the time, Stone had held a contractor’s license since 1982.

On February 11, 2015, after work on the project had begun, Stone formed JDSS Construction Company, Inc., and filed a fictitious business name using the same name Stone Construction Company. Stone applied to the Contractors State License Board to have his contractor’s license issued from himself personally to his new corporation. On March 15, 2015, while waiting for the CSLB to reissue his contractor’s license, Stone entered into an assignment agreement between himself and his new company assigning the Manela construction contract. The assignment agreement was signed by Stone in his personal capacity and as President of JDSS Construction. The assignment agreement was not signed by the Manelas.

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


Before and After the Storm: Know Your Insurance Rights, Coverages and Obligations

Dark storm clouds over rural plain

Now is the time to ensure your insurance program is hurricane-ready.

October 4, 2021
Hunton Insurance Recovery Blog

This year, like last, the National Oceanic and Atmospheric Administration predicts an extremely active hurricane season. As we write this alert, the Gulf Coast, Mid-Atlantic, New York, and New England regions are just now realizing the devastation Ida has left in her path.

Now is the time to ensure your insurance program is hurricane-ready. In this client alert, our insurance coverage team provides critical steps that you should take now to ensure that you protect your assets and maximize recovery in the unfortunate event of a hurricane claim.

Know Your Coverage: What Does Your Policy Say and Where Can It Be Found?

Obtain copies of your relevant property insurance forms and read them now. Knowing your coverage, even on a general level, will help you anticipate the immediate steps to take following a loss, including how to notify your insurer of losses to your covered property.


Court of Appeals Affirms Dismissal of Owner’s Claims Based on Contractual One-Year Claims Limitations Period

Businessman with hands up in stop gesture

The Tadych decision is important because it reiterates the strict approach courts will take to a claim limitations clause less than the statutory six years for breach of contract claims prescribed by RCW 4.16.040(1).

October 4, 2021
Cassidy Ingram - Ahlers Cressman & Sleight

In a recent unpublished decision – Tadych v. Noble Ridge Construction, Inc.– the Washington State Court of Appeals, Division One, held that a one-year contractual claim limitations clause was valid and enforceable. The Tadych decision is important because it reiterates the strict approach courts will take to a claim limitations clause less than the statutory six years for breach of contract claims prescribed by RCW 4.16.040(1). In other words, when the parties agree to shorten the limitations period, the agreement will be enforced barring any procedural or substantive unconscionability.

In Tadych, plaintiff owners (the Tadychs) contracted with defendant contractor (Noble Ridge Construction, Inc., or NRC) for the construction of a custom home in 2012. The contract provided a one-year claim limitations clause in which claims could be raised, and that all claims not raised in the one-year period would be waived. In December 2013, as the project neared completion, the Tadychs met with NRC to identify any outstanding project issues. The Tadychs noted several, including rainwater pools at the landing at the bottom of the stairs and several nicks and cracks on the stucco exterior walls.

Ms. Ingram may be contacted at cassidy.ingram@acslawyers.com



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Construction Defect News Channel - The Latest News and Video From The Construction Defect Journal

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UC Greenlights Construction of Student Housing at Berkeley's People's Park

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