CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - WEDNESDAY, DECEMBER 4, 2024

Bridge pillars deterioration

An expert from CAC Specialty gives his insight into insuring bridge construction projects before, during and after natural disaster.

Deterioration of Bridge Infrastructure Is Increasing Insurance Needs

December 3, 2024
Grace Calengor - Construction Executive

As the world is taken by storm—literally, with increasing hurricanes, tornadoes, wildfires and more—insuring construction projects and infrastructure is becoming more complicated yet more necessary. Sean Pender, senior vice president of construction and development at CAC Specialty, is a leading specialty insurance broker and advisor. As major-storm season for the Northern hemisphere rounds out, he speaks with Construction Executive about the potential risk and insurance implications to the process of ensuring proper repairs, replacements and other forms of maintenance to one of the country’s most pivotal pieces of infrastructure: bridges.

What does insurance coverage look like for building bridges in various environments throughout the country?
Insurance is essential to protect the entity that owns the bridge during construction. Bridges under construction are at the highest risk of collapse because they are not yet fully stabilized and are exposed to severe weather and natural disasters, which could cause significant damage to the structure or injury to workers and civilians. Therefore, comprehensive liability insurance programs—typically with coverage limits of $50 to $100 million or higher—are crucial, especially with activities on or over waterways.

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

Read the full story…

CDJ NEWS THIS WEEK



Bid blocks with notebooks and magnifying glass

A general contractor preparing its overall bid for a public project in Jefferson Parish relied in the process on the defendant masonry subcontractor’s bid.

Slow Down?

December 3, 2024 — Daniel Lund III - Lexology

Absolutely not, said the Louisiana Fifth Circuit Court of Appeal to a masonry subcontractor being sued for allegedly improperly refusing to honor a subcontract bid.

A general contractor preparing its overall bid for a public project in Jefferson Parish relied in the process on the defendant masonry subcontractor’s bid. After a public bid process and receiving the award of the project, the general contractor was informed by the subcontractor that it believed that the unit price form that had been supplied to the sub “contained inaccuracies.” Notwithstanding offers by the GC to endeavor to address the purported “inaccuracies” during the project, most likely by a change order, the subcontractor refused to execute its subcontract. The general contractor then awarded the masonry work to another subcontractor for $368,222 more than the original sub’s bid.

The GC filed suit – for recovery of $368,222 – against the defendant subcontractor during the course of the public project. The defendant sub objected, arguing to the court that the lawsuit was “premature.” At the heart of the prematurity argument: the sub urging that the general contractor filed suit before its right to recover damages had accrued.

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

Reprinted courtesy of Daniel Lund III, Phelps

Read the full story…

Court interior

BRE Hotels & Resorts LLC (BRE) owned the Grand Wailea Resort on Maui and the Turtle Bay Resort on Oahu. Both hotels were damaged by a rainstorm on March 9, 2021.

Hawaii Federal District Court Compels Appraisal

December 3, 2024 — Tred R. Eyerly - Insurance Law Hawaii

The Hawaii federal district court denied the insurers' motion to dismiss on forum non convenient grounds and granted the insured's motion to compel arbitration. BRE Hotels and Resorts LCC, et al. v. Ace Am Ins. Co., et al., 2024 U,.S. Dist. LEXIS 163852 (D. Haw. Sept. 11, 2024).

BRE Hotels & Resorts LLC (BRE) owned the Grand Wailea Resort on Maui and the Turtle Bay Resort on Oahu. Both hotels were damaged by a rainstorm on March 9, 2021. Estimated losses exceeded $55 million. BRE filed a claim with its sixteen insurers. BRE sought $46 million in four categories: business interruption losses at the Grand Wailea ($29.6 million); damaged tiles at the Grand Wailea ($8.3 million); furniture, fixtures, and equipment at Turtel Bay ($6.2 million); and an assortment of ancillary issues at both properties ($1.9 million).

The insurers investigated and took issued with BRE's estimates. The insurers contended that most of the tiles suffered from an independent defect and were not damaged by the storm, that the insurance policies did not cover the replacement of undamaged furniture, and that the claimed business interruption losses were too high. The insurers paid $4 million.

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

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

Read the full story…

Supreme Court sign with woman walking by

So far, 40 cases have been selected for oral argument in the new term.

The 2023 Term of the Supreme Court: Administrative and Regulatory Law Rulings

December 3, 2024 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog

It is instructive to review the Supreme Court’s record in its most recent term, concentrating on regulatory and administrative law cases, which are usually back-burner issues. But not this term.

The Supreme Court began the current term on October 7, 2024. The Court has already chosen many cases to review in the new term, and it promises to be as interesting as the 2023 term, which produced several significant rulings affecting regulatory and administrative law, chiefly the Loper Bright Enterprises ruling. Loper Bright overturned the Court’s landmark administrative law ruling of Chevron, USA v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

The Background to Loper Bright
In 1984, the Supreme Court decided Chevron USA, Inc. v. National Resource Defense Council. (See 467 U.S. 839 (1984).) The unanimous decision, written by Justice Stevens, reversed then-D.C. Circuit Judge Ruth Bader Ginsburg’s ruling that set aside EPA’s Clean Air Act “bubble policy,” which was intended to provide regulatory relief from certain EPA permitting requirements.

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

Reprinted courtesy of Anthony B. Cavender, Pillsbury

Read the full story…

Know the rules sign

California’s complex saga of long-tail injury coverage under general liability policies took an interesting turn in the California Supreme Court’s recent decision in Truck Ins. Exch. v. Kaiser Cement.

Historical Long-Tail Claims in California Subject to a Vertical Exhaustion Rule

December 3, 2024 — Will S. Bennett - Saxe Doernberger & Vita, P.C.

California’s complex saga of long-tail injury coverage under general liability policies took an interesting turn in the California Supreme Court’s recent decision in Truck Ins. Exch. v. Kaiser Cement.1 In Truck, the court made it clear that Insureds can access excess policy limits without first exhausting all triggered underlying primary coverage, provided the underlying limits for the same policy period have been exhausted.

A Brief Summary of the History of Coverage for Long-Tail Claims in California2

Understanding the contextual significance of Truck requires a brief survey of California’s gradually developed case law with respect to long-tail progressive injury and damage claims. A “long-tail claim” typically involves progressively manifesting damage, injury, or disease that develops over a period of multiple years. Because general liability insurance is traditionally triggered based on the timing of when bodily injury or property damage occurs, the progressive nature of these claims has led many courts to analyze when injury or damage occurs in these claims. In doing so, California courts have generally found that these injuries occur across numerous years, thereby triggering numerous policies.3

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

Reprinted courtesy of Will S. Bennett, Saxe Doernberger & Vita, P.C.

Read the full story…

Top 10

Marissa L. Down's top 10 take-aways from the 2024 Fall Meeting in Pittsburgh.

Top 10 Take-Aways from the 2024 Fall Forum Meeting in Pittsburgh

December 3, 2024 — Marissa L. Downs - The Dispute Resolver

Over 500 construction law attorneys and consultants convened last week at the confluence of three rivers in what became the first-ever meeting in Pittsburgh, Pennsylvania of the ABA Forum on Construction Law. The Steel City was a fitting backdrop for a meeting focused on issues of design in construction. Thanks to the hard work of many, most notably the newly minted Forum Chair Keith Bergeron and Meeting Coordinators Kendall Woods and Michael Clark, the meeting's attendees brought home new connections and a host of new lessons learned. Read on for my top 10 take-aways from the 2024 Fall Meeting in Pittsburgh and feel free to share yours in the comments below.

10. An architect's standard of care does not require perfection. A common refrain across many of the meeting's plenary sessions was that any design that is produced by human hands will never be perfect. In recognition of our own fallibility, the legal standard to which design professionals will be held to account does not require that their designs be error-free. A design professional must generally exercise the degree of care and skill ordinarily exercised by professionals performing similar services under similar circumstances. Establishing what that means in each locality will vary and will most likely need to be supported by the expert opinion of another practicing design professional.

Ms. Downs may be contacted at mdowns@lauriebrennan.com

Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP

Read the full story…

Testifying Construction and Building Industry Standard of Care Expert Witness

General Construction Investigation - Licensed General Building Contractor CA, AZ, UT, FL

Certified Professional Estimator (ASPE) American Society of Professional Estimators

Extensive testimony experience attendant to numerous commercial and residential construction defect and claims related expert witness designations

Request CVConsultation

(800) 482-1822

www.berthowe.com

Wrigley Field

An agreement between the U.S. Dept. of Justice and Chicago Cubs calls for the team to improve and add wheelchair seating at Wrigley Field.

Chicago Cubs Agree to Make Wrigley Field ADA Improvements to Settle Feds' Lawsuit

December 3, 2024 — James Leggate - Engineering News-Record

Major League Baseball’s Chicago Cubs have entered into a settlement with the U.S. Dept. of Justice over renovations to Wrigley Field, federal and Cubs officials announced Oct. 31. As part of the settlement, the team agreed to update Wrigley Field with more accessibility options for people with disabilities.

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

Reprinted courtesy of James Leggate, ENR

Read the full story…

Submit Article For Publication in CDJ

Share your firm’s publications, events, CLEs, seminars, and articles relevant to construction defect and claims matters. Enhance your firm's visibility and promote your expertise by reaching our highly targeted audience of decision-makers, including construction attorneys, builders, owners, and claims professionals.

Submit
Gold star on gold lights

Alexander Giannetto is an AV-rated attorney by Martindale-Hubbell who has been voted Best of the Bar in San Diego as well as a Top Lawyer in San Diego.

Congratulations to Partner Alex Giannetto for Being Named to San Diego Business Journal’s Top 100 Leaders in Law List

December 3, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

Congratulations to Partner Alexander Giannetto for being selected as a “2024 Leaders of Influence in Law” by the San Diego Business Journal! To read and download the SDBJ publication, please click here.

Alex Giannetto is a managing partner with Bremer, Whyte, Brown & O’Meara LLP’s San Diego office. He has extensive experience in all aspects of civil litigation handling liability matters including slip and falls, catastrophic injuries, wrongful death, traumatic brain injuries, landslides, and construction claims. He has obtained favorable trial results defending clients on personal injury and premises matters in San Diego and Los Angeles. He also has appellate experience. He is an AV-rated attorney by Martindale-Hubbell who has been voted Best of the Bar in San Diego as well as a Top Lawyer in San Diego.

Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Read the full story…

Texas sign

Construction contractors often have to deal with classification of employees, and a recent court decision affects the wage protection of employees under the FLSA.

A Game of Texas Hold’em: How Texas Stopped Wage Increases for Salaried Exempt Employees Nationwide

December 3, 2024 — Matthew DeVries - Best Practices Construction Law

Construction contractors often have to deal with classification of employees, particularly those who work in the home office. Today’s guest post by Alexandra Shulman and Leah Lively addresses a recent court decision affecting the wage protection of employees under the the Fair Labor Standards Act (FLSA).

On November 15, 2024, a federal court in Texas vacated a U.S. Department of Labor (DOL) rule (the “2024 Rule”) that increased the minimum salary threshold for employees classified as exempt from overtime and minimum wage protections under the FLSA. The Texas court’s decision nullifies the 2024 Rule nationwide, effective immediately.

Mr. DeVries may be contacted at mdevries@buchalter.com

Reprinted courtesy of Matthew DeVries, Buchalter

Read the full story…

People applauding showing recognition

Best Lawyers rankings are published in leading local, regional, and national publications across the globe.

Payne & Fears Recognized by Best Lawyers in 2025 Best Law Firms®

December 3, 2024 — Payne & Fears LLP

Payne & Fears LLP has been named to the 2025 Best Lawyers “Best Law Firms” list. This recognition highlights firms that demonstrate professional excellence, receiving outstanding ratings from both clients and peers.

Payne & Fears has been ranked in the following practice areas:
Metropolitan Tier 1

  • Orange County
    • Commercial Litigation
    • Employment Law – Management
    • Insurance Law
    • Labor Law – Management
    • Litigation – Labor and Employment
    • Litigation – Real Estate

Metropolitan Tier 2

  • Las Vegas
    • Commercial Litigation

Metropolitan Tier 3

  • Orange County
    • Litigation – Intellectual Property

Reprinted courtesy of Payne & Fears LLP

Read the full story…

Meter arrow pointing at green

One of the major concerns is how to enforce a bond in a part of the industry where there’s a lot of gray area, especially because green building regulations change so frequently.

Deadline Nears for “Green Performance Bond” Implementation

December 3, 2024 — Christopher G. Hill - Construction Law Musings

For this weeks Guest Post Friday at Musings, we welcome Surety Bonds.com, a leading online surety provider. SuretyBonds.com specializes in educating current and prospective business owners about local surety requirements. To keep up with surety bond trends, follow and Surety Bonds Insider blog and @suretybond on Twitter.

Professionals who work in the construction industry know the laws that regulate the market change constantly. Unfortunately, even government agencies are flawed, which means they sometimes establish nonsensical, arbitrary regulations that leave construction professionals even more confused as to how they’re expected to do their jobs.

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

Reprinted courtesy of The Law Office of Christopher G. Hill

Read the full story…

Hand holding plate of floating stars

Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

Wilke Fleury ranked in Best Lawyers’ Best Law Firms!!

December 3, 2024 — Wilke Fleury LLP

Wilke Fleury is pleased to announce its inclusion in the 2025 edition of ‘Best Law Firms’ ranked by Best Lawyers! Firms included in the 2025 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

Reprinted courtesy of Wilke Fleury LLP

Read the full story…

Woman head down on desk holding help sign

It's invariably beneficial to obtain guidance for legal issues earlier rather than later.

Why Should Businesses Seek Legal Help Early On?

December 3, 2024 — Scott L. Baker - Los Angeles Litigation Blog

Most business owners are natural problem solvers. They assess the issue that lies before them and develop a strategy to overcome it. It’s a critical mindset to have, but do all business owners have the skillset to solve every issue?

While it is understandable that business owners may want to attempt to resolve issues on their own, it is invariably beneficial to obtain guidance for legal issues earlier rather than later.
3 Reasons to Consult an Attorney Sooner than Later

Many people might consider working with an attorney to be a last resort. Typically, this is not the case; rather, getting knowledgeable legal counsel sooner than later can help business owners because:

  1. It’s Cheaper: Early legal intervention can often prevent disputes from leading to litigation, which can be expensive. Working with an attorney to resolve a conflict before it escalates into a larger issue is often a good business decision and wise investment.

Mr. Baker may be contacted at slb@bakerslaw.com

Reprinted courtesy of Scott L. Baker, Baker & Associates

Read the full story…

Consulting Design and Architecture Expert Witness

Forensic Architect CA, AZ, NV, CO, TX, UT, FL, NM, OK - NCARB - National Council of Architectural Registration Boards

California Architectural Registration Board Supplemental Examination Commissioner

Request CVConsultation

(800) 482-1822

www.berthowe.com

House on grass

A Resilient House in Texas Raises the Bar on Home Performance

December 3, 2024 — Green Builder Media

Lake City, Colo., Nov. 26, 2024 (GLOBE NEWSWIRE) -- The VISION House Austin, meticulously designed by internationally renowned architect Peter Pfeiffer and his Austin-based Barley|Pfeiffer Architecture team, has been designed for optimal climate responsiveness using passive solar design to maintain a comfortable indoor environment.

lan Barley and Pfeiffer, co-owners of the firm, are big believers in layering. They start with a deep study of the site they're working with and design a home that complements the location and their client's preferences. Next, they layer in sustainable products and systems that will enhance the performance of a well-designed and carefully built home.

Because this house needs to perform well in a hot climate, the design team selected products that would hold up to the heat. They also leaned on design to achieve performance, such as overhangs to create shade and positioning each house appropriately on its site. They also focus on innovations that have made it easier to build a resilient, sustainable, high-performance house.

About Green Builder Media
Green Builder Media is North America's leading media company focused on green building and sustainable living content. With a comprehensive suite of content marketing, digital, social, and print media options, high-profile demonstration projects, market intelligence, data services, and live events, Green Builder Media offers a blend of visionary and practical information covering a broad spectrum of topics, including decarbonization, electrification, smart home technologies, energy efficiency, intelligent water, indoor air quality, resilient housing, renewables, and clean transportation.

Construction workers with safety ropes

On the Front Lines: Influencing Construction Site Safety

December 3, 2024 — Nancy Novak - Construction Executive

In the last 16 years, more fatalities have occurred in construction than in any other industry. Not only are workers on construction sites vulnerable to incidents with heavy machinery or working at height, but their exposure to dangerous materials can pose health risks if proper care is not taken. In a recent study of individuals who worked in the construction industry until retirement age, more than 50% of respondents reported hearing impairment.

Of non-fatal on-the-job injuries, nearly 40% cause the injured worker to take time off of work to recover. In 2022, sick or injured construction workers missed a total of 24.2 million hours of work. Absent workers lead to decreased productivity and increased strain on the rest of the crew to accommodate project needs with fewer hands. Not to mention the cost of unsafe practices at construction sites from failed safety inspections: The average OSHA penalty fee per inspection was $2,697 between 2011 and 2020.

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

Read the full story…

Domino collapsing on person

Insured's Failure to Cooperate Dooms Claim

December 3, 2024 — Tred R. Eyerly - Insurance Law Hawaii

The court granted the insurer's motion for summary judgment based upon the insured's failure to allow the insurer to inspect damaged personal property . Ansah v Nationwide Prop. and Cas. Ins. Co., 2024 U.S. Dist. LEXIS 151472 (S. D. Texas Aug. 23, 2024).

The insureds purchased a property policy from Nationwide. The policy imposed duties on the insureds after a covered loss. These included protecting the property from further damage, cooperating with the insured in the investigation of a claim, preparing an inventory of damaged property, and showing the damaged property to the insurer.

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

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

Read the full story…

Women in seminar

Groundbreaking Women in Construction Seminar: New York

December 3, 2024 — Beverley BevenFlorez – CDJ Staff

In 2025, Groundbreaking Women in Construction (GWIC) is adding an East Coast conference to the schedule. Those participating “can enhance leadership skills through specialized workshops, connect with industry leaders and peers, and immerse in an inclusive and supportive environment.” The two-day conference “features inspirational speakers sharing valuable insights, offering attendees access to the latest industry trends and talent development resources.” Attendees include “seasoned leaders in architecture, engineering, and construction to budding apprentices and legal and financial experts, GWIC serves as a melting pot for innovators, decision-makers, and influencers.”

February 24th-25th, 2024
The Westin New York at Times Square
270 West 43rd St.
New York, NY

Read the full story…

Subscribe to CDJ Newsletter

Weekly Construction Defect and Claims News  - Direct to Your Inbox

Subscribe to CDJ

More Than 9000 Construction Defect and Claims Related Expert Witness Engagements

Bert L.. Howe & Associates, Inc., provides construction-related expert witness investigation and trial support services to the nation's most recognized publicly traded builders, commercial general liability carriers, law firms, and construction practice groups. To schedule a no-cost consultation with a construction or design expert possessing the credentials, licensures, and qualifications best suited to your matter, please contact us at 800.482.1822

Arrange Consultation

Good News: First Family Moves Back to Lahaina Neighborhood Destroyed by Fire

After a deadly and devastating fire wiped out much of the Maui town of Lahaina, the first family to rebuild in the neighborhood has moved back. NBC News' Morgan Chesky reports.

CDJ Video Channel

Breakers Hotel in Long Beach Reopens After Years of Renovations

The nearly 100-year-old Breakers Hotel reopened in Long Beach after a seven year, multi-million dollar renovation. Mekahlo Medina reports for the NBC4 News at 5 p.m. on Nov. 22, 2024.

CDJ Video Channel


Consulting General Contractor - Certified Construction Cost Estimating Expert Witness

Certified Professional Estimator (ASPE) American Society of Professional Estimators

Licensed General Contractor (778968), State of California, Licensed General Contractor (072729), State of Nevada

Fire Loss Reconstruction Cost Estimating Expert

Request CVConsultation

(800) 482-1822

www.berthowe.com