CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - FRIDAY, JANUARY 3, 2025

Money changing hands

Ambiguous provisions may lead to additional litigation over their interpretation—specifically, whether one party has truly “prevailed.”

Contractual Fee-Shifting in Litigation: Who Pays the Price?

December 31, 2024
Caitlin Kicklighter - ConsensusDocs

When disputes on a construction project escalate to litigation, general contractors may find themselves entangled in a costly and time-consuming legal battle. One important concept to understand is contractual fee-shifting under a “prevailing party” provision, which can significantly impact damages recovered in litigation. The general rule, known as the “American Rule,” requires each party to pay its own legal costs, including attorney’s fees, expert witness expenses, and other court-related costs. This differs from other legal systems where the losing party typically pays the winning party’s fees. One exception to the American Rule is contractual fee-shifting, specifically through “prevailing party” provisions, which allows for the award of attorney’s fees and costs when explicitly provided for in a contract.

This article explores this exception to the American Rule, delves into the challenges posed by prevailing party provisions, and shares tips to consider for drafting these clauses to improve clarity and minimize uncertainty in the face of litigation.

Ms. Kicklighter may be contacted at ckicklighter@joneswalker.com

Reprinted courtesy of Caitlin Kicklighter, Jones Walker LLP

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CDJ NEWS THIS WEEK

Law books in library

Odedeyi argued that the damage was covered under the contractor's policy and they were liable for the judgment.

Third Circuit Vacates Judgment for Insurer on Alleged Construction Defect Claim

December 31, 2024 — Tred R. Eyerly - Insurance Law Hawaii

The Third Circuit vacated and remanded to the district court the judgment in favor of the insurer on a construction defect claim. Odedeyi v. AmTrust Financial Services Inc., 2024 U.S. App. LEXIS 24729 (3d Cir. Oct. 1, 2024).

Mr. Odedeyi hired a contractor, who was insured by Security National, to perform work on his property. After the property was damaged during the renovations, Odedeyi filed suit against the contractor. Odedeyi was awarded a default judgment against the contractor.

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

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

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Jury trial

Glas believes that jurors have changed in the last twenty years, with modern jurors being more reluctant than ever to be seen as a lawyer’s puppet.

Toolbox Talk Series Recap - The New Science of Jury Trial Advocacy

December 31, 2024 — Douglas J. Mackin - The Dispute Resolver

In the November 21, 2024 edition of Division 1's Toolbox Talk Series, John Jerry Glas discussed how construction lawyers should adjust their trial strategies in response to shifts in juror attitudes. Glas believes that jurors have changed in the last twenty years, with modern jurors being more reluctant than ever to be seen as a lawyer’s puppet. Instead, they simply want a lawyer to help them organize and wade through evidence without spinning it and without spoon-feeding it. Essentially, Glas believes that lawyers achieve better jury trial results if they acknowledge the paradigm shift in jury psychology and reinvent themselves in response by influencing jury deliberations without directly telling a jury what to do. Glas refers to this as the “Waiter Pivot” and recently published a book on the topic.

Throughout his presentation, Glas discussed how construction lawyers can embrace the Waiter Pivot throughout a jury trial:

  • Voir Dire: Lawyers make their first impressions on a jury during voir dire. As such, lawyers should avoid questions that make jurors feel judged or stereotyped. Instead, give the jurors credit and make use of the opportunity to begin framing their case. For example, Glas once repeated the word “specifications” or “specs” in every question during voir dire where his product liability case turned on whether or not the product deviated from specifications.

Mr. Mackin may be contacted at dmackin@cozen.com

Reprinted courtesy of Douglas J. Mackin, Cozen O’Connor

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Highlighter on Requirement in Dictionary

The rule has enjoyed support from both industry and labor.

OSHA Finalizes PPE Fitting Requirement for Construction Workers

December 31, 2024 — Jonathan H. Schaefer - Construction Law Zone

On December 11, 2024, the Occupational Safety and Health Administration (OSHA) announced it finalized a revision to the personal protective equipment (PPE) standard for the construction industry. The final rule adds specific language to the existing standard requiring employers to provide properly fitting PPE for construction industry workers. This change aligns the construction industry with the standards in place for the general industry.

According to OSHA, many types of PPE must properly fit workers. Improperly sized PPE can ineffectively protect workers, creating new hazards for them, such as oversized gloves or protective clothing being caught in machinery and discouraging use because of discomfort or poor fit. OSHA stated that the longstanding issue with improperly fitting PPE particularly impacted women, as well as physically smaller or larger workers.

Mr. Schaefer may be contacted at jschaefer@rc.com

Reprinted courtesy of Jonathan H. Schaefer, Robinson+Cole

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Arbitration meeting over contract

Arbitrators, as well as the parties which arbitrate before them, understand that the form of an arbitration award may be as simple as “calling balls and strikes” to as complicated as a fully “reasoned” award.

“Over? Did you say ‘over’?”

December 31, 2024 — Daniel Lund III - Lexology

The United States Seventh Circuit Court of Appeals recently held that under the Federal Arbitration Act, an arbitrator – and not a court – is to determine the preclusive effect of an arbitrator’s earlier ruling.

In the case, insurers engaged in three reinsurance agreements had previously arbitrated concerning one of the insurer’s billing methodologies. When a similar dispute occurred years later, the victors in the first arbitration – rather than pursuing arbitration – filed in federal court in Chicago seeking to have the court declare that the prior arbitration award precluded re-arbitration of the latest dispute. The insurer on the other side of the dispute moved to compel arbitration, a motion granted by the district court. The plaintiff insurers appealed.

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

Reprinted courtesy of Daniel Lund III, Phelps

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Workers removing asbestos from roof

In the first asbestos matter to go to trial in Rhode Island in close to 40 years, Plaintiffs requested nearly $25 million in compensatory damages for the death of Mrs. Bonito from her alleged exposure to asbestos through the work clothes of her husband.

Providence Partner Monica R. Nelson Helps Union Carbide Secure Defense Verdict in 1st Rhode Island Asbestos Trial in Nearly 40 Years

December 31, 2024 — Lewis Brisbois Newsroom

Providence, R.I. (November 22, 2024) - On November 21, 2024, a Providence County jury returned a unanimous defense verdict for Union Carbide Corporation after a nine-day trial presided over by Associate Justice Richard A. Licht. Tim McGowan of Kelley Jasons McGowan Spinelli Hanna & Reber LLP, Eric Cook of Willcox Savage, and Monica R. Nelson of Lewis Brisbois Bisgaard & Smith LLP represented Union Carbide at trial. Elliott Davis of Shook Hardy & Bacon was Union Carbide’s appellate counsel.

The plaintiffs’ lawyers, Vincent L. Greene IV, Nathan D. Finch, and Ashley Hornstein of Motley Rice LLC, represented the family of Mrs. Bonnie Bonito in the first asbestos matter to go to trial in Rhode Island in close to 40 years and requested nearly $25 million in compensatory damages for the death of Mrs. Bonito from her alleged exposure to Union Carbide’s asbestos, among many other asbestos-containing products, through the work clothes of her husband. The plaintiffs’ proffered theory of liability against Union Carbide Corporation is known as a “take-home” exposure claim.

Reprinted courtesy of Lewis Brisbois

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Technology bridge

Denis explores how AI tools are already enhancing design and supply chains and shares his vision for AI’s eventual integration across every facet of the industry.

Let’s Get Surety Podcast – #126 Building the Future: AI, Construction and Law

December 31, 2024 — Denis Serkin - Peckar & Abramson, P.C.

Denis Serkin, partner in P&A’s New York and New Jersey offices, joins the latest episode of the NASBP podcast “Let’s Get Surety” to delve into the transformative impact of AI on the construction industry and construction law.

In this insightful discussion, Denis explores how AI tools are already enhancing design and supply chains and shares his vision for AI’s eventual integration across every facet of the industry.

Mr. Serkin may be contacted at dserkin@pecklaw.com

Reprinted courtesy of Denis Serkin, Peckar & Abramson, P.C.

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Thank You

The 18 consecutive years of election to the Legal Elite in the Construction Category span Mr. Hill's nearly 15 years as a solo construction attorney.

Thank You for 18 Straight Years in the Virginia Legal Elite in Construction Law

December 31, 2024 — Christopher G. Hill - Construction Law Musings

Thank you once again to those in the Virginia legal community who elected me to the Virginia Business Legal Elite in the Construction Law category for the 18th consecutive year. The 18 consecutive years of election to the Legal Elite in the Construction Category span my nearly 15 years as a solo construction attorney. The fact that you all have continued to elect “100%” of the lawyers at The Law Office of Christopher G. Hill, PC for the last 14 years is most gratifying and only confirms that my decision to “go solo” over 14 years ago was a good one. To be included in this list of top construction attorneys is both humbling and gratifying. For the complete list of the Virginia construction lawyers who were elected along with me, see the 2024 Virginia Business Legal Elite in Construction Law.

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

Reprinted courtesy of The Law Office of Christopher G. Hill

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Fingers pointing at businessman

The US District Court for the Western District of Louisiana ruled that Amazon could be liable for manufacturer-seller liability under the Louisiana Products Liability Act for a defective product sold by a third-party seller.

Update: Amazon Can (Still) Be Liable in Louisiana

December 31, 2024 — Michael Ciamaichelo - The Subrogation Strategist

On November 25, 2024, in Pickard v. Amazon.com, Inc., No. 5:20-cv-01448, 2024 U.S. Dist. LEXIS 215377, the United States District Court for the Western District of Louisiana (District Court) ruled that Amazon.com, Inc. (Amazon) could be liable for manufacturer-seller liability under the Louisiana Products Liability Act (LPLA) for a defective product sold by a third-party seller through the “Fulfillment by Amazon” program (FBA). The court also dismissed two tort claims against Amazon as follows: (i) Amazon does not qualify as a “seller” for purposes of non-manufacturer seller liability (because passing title is required for that claim); and (ii) there is insufficient evidence to prove the decedent, Archie Pickard (Pickard), relied on Amazon’s safety practices when purchasing the defective product, precluding a claim for negligent undertaking.

Background
Pickard died from injuries sustained in a house fire allegedly caused by a defective battery charger he purchased on Amazon. Jisell, a Chinese company and a third-party seller, manufactured and sold the charger. Amazon never took title to the charger but stored it in its warehouse and delivered it to Pickard through the FBA. Pickard’s children filed a wrongful death lawsuit against Amazon alleging three claims: (i) manufacturer-seller liability under the LPLA; and tort-based claims of (ii) non-manufacturer seller liability and (iii) negligent undertaking. After Amazon moved for summary judgment on all claims, the District Court certified questions to the Supreme Court of Louisiana (Supreme Court) seeking guidance as there was minimal guidance regarding the application of products claims to online marketplaces.

Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com

Reprinted courtesy of Michael Ciamaichelo, White and Williams LLP

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Two business people shaking hands

David manages every phase of litigation, from arguing motions for summary judgment to negotiating settlements.

David Uchida Joins Kahana Feld’s Los Angeles Office as Partner

December 31, 2024 — Linda Carter - Kahana Feld

Kahana Feld is pleased to announce that David M. Uchida recently joined the firm as a partner in the firm’s Los Angeles Office. He is a member of the firm’s General Liability group.

A client-focused and seasoned litigator, David has defended product manufacturers and suppliers in complex toxic tort and environmental litigation. David also has extensive experience defending clients in alleged asbestos, benzene, and silica exposure claims.

Ms. Carter may be contacted at lcarter@kahanafeld.com

Reprinted courtesy of Linda Carter, Kahana Feld

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Las Vegas

The 30,000-seat Major League baseball stadium planned for the Strip in Las Vegas is expected to break ground in the second quarter of next year.

Las Vegas Stadium for Athletics, Now $1.75B Project, Gains Key OK

December 31, 2024 — Doug Puppel - Engineering News Record

Construction start of a new stadium in Las Vegas to host the former Oakland, Calif.-based Athletics Major League Baseball team gained a key approval on Dec. 5, with the municipal stadium authority unanimously greenlighting the now $1.75-billion facility.

Reprinted courtesy of Doug Puppel, ENR

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Postmodern Chicago Skyscraper

The new tower, 1000M, and ongoing work to restore the city’s famed Thompson Center showcase the lasting influence of Helmut Jahn on the Chicago cityscape.

A Chicago Skyscraper Cements the Legacy of a Visionary Postmodern Architect

December 31, 2024 — Mark Byrnes - Bloomberg

A handsome and eclectic stretch of buildings along Michigan Avenue known as “Chicago’s Front Door” offers a view that reflects the city’s status as a destination for serious architecture. Louis Sullivan and Dankmar Adler’s Auditorium Building, where a young Frank Lloyd Wright designed interiors, is right there on Grant Park; so is Daniel Burnham’s Railway Exchange, where he drew up the 1909 Plan of Chicago.

Now a glass-and-aluminum apartment tower anchors the southern end of this scene, filling in a rare gap within this landmarked streetwall and putting a bow on the career of another heroic figure in Chicago’s architectural history: Helmut Jahn.

Reprinted courtesy of Mark Byrnes, Bloomberg

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Business people wearing superhero costumes

This shows how their backgrounds in manufacturing, design, and technology led them to tackle inefficiencies in the construction industry.

AI AEC Show: Augmenta Gives Designers Superpowers

December 31, 2024 — Aarni Heiskanen - AEC Business

In this episode of the AI AEC Show, host Aarni Heiskanen interviews Aaron Szymanski and Francesco Iorio, the visionary founders of Augmenta, to explore how generative AI is revolutionizing design. Augmenta’s platform gives designers superpowers by automating complex workflows, doubling productivity, and enabling better, faster decision-making.

Discover the fascinating origin story of Augmenta, born from the intersection of industrial design frustration and cutting-edge AI research.

Aaron and Francesco share how their backgrounds in manufacturing, design, and technology led them to tackle inefficiencies in the construction industry—starting with electrical raceway design. They reveal how their AI-powered tools save time and optimize designs for cost, sustainability, and constructability.

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

Reprinted courtesy of Aarni Heiskanen, AEC Business

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Consulting Design and Architecture Expert Witness

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Rising high percentages

US Home-Purchase Applications Rise to Highest Since February

December 31, 2024 — Michael Sasso - Bloomberg

A gauge of US mortgage applications for home purchases surged to the highest level since February as buyers seized on a small dip in borrowing costs and a greater selection of houses on the market.

The measure of purchase applications jumped 12.4% in the week ended Nov. 22 to 152.9, according to data released Wednesday by the Mortgage Bankers Association. While the percentage gain was the strongest since early 2023, the data are prone to large weekly swings around holidays.

Reprinted courtesy of Michael Sasso, Bloomberg

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Construction workers

Construction Gains 10,000 Jobs in November

December 31, 2024 — Tom Ichniowski - Engineering News-Record

Construction employment continued its recent climb, recording a modest increase of 10,000 in November, the Bureau of Labor Statistics has reported.

Mr. Ichniowski may be contacted at ichniowskit@enr.com

Reprinted courtesy of Tom Ichniowski, ENR

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New York City Skyline

New York Expands Business Interruption Coverage for Policyholders

December 31, 2024 — Janeen M. Thomas & David G. Jordan - Saxe Doernberger & Vita, P.C.

On September 27, 2024, New York Governor Kathy Hochul signed Bill No. A10342 into law, authorizing the issuance of stand-alone business interruption insurance coverage. This bill was introduced and passed in response to the COVID-19 pandemic, which forced many businesses to close temporarily as a result of government shutdown orders.

Many affected businesses submitted insurance claims under business owners or property insurance policies, which included some form of business interruption coverage. The problem was that such coverage was conditioned upon “[direct] physical loss [of] or damage” to covered property. Because of the requisite property damage trigger, most businesses were denied business interruption coverage, often spurning litigation. Courts nationwide have held, almost uniformly, that economic losses due to government-ordered shutdowns, enacted to prevent the spread of the coronavirus, do not constitute “physical loss” or “physical damage” to covered property.

Reprinted courtesy of Janeen M. Thomas, Saxe Doernberger & Vita, P.C. and David G. Jordan, Saxe Doernberger & Vita, P.C.

Ms. Thomas may be contacted at JThomas@sdvlaw.com
Mr. Jordan may be contacted at DJordan@sdvlaw.com

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Seminar

Land Use Law in South Carolina Seminar

December 31, 2024 — Beverley BevenFlorez – CDJ Staff

This two-day event “will present the various legal and regulatory mechanisms used to plan and regulate growth, real estate development, and other impacts from changes in the use of public and private property.” The seminar “includes both a broad overview for general knowledge and more detailed information on specific topics, such as zoning, annexation, environmental issues, and working with regulators.”

January 28th-29th, 2025
Charleston Marriott
170 Lockwood Boulevard
Charleston SC, 29403

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William Stewart’s WDBE 2024 keynote in Tallinn was titled “The Rise of Health and Well-Being within Real Estate and Its Implementation within Business Models.”

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Man Charged for Allegedly Causing More than $1 Million in Damage at Kitsap County Construction Site

The man allegedly gained access to machinery at the construction site for the Newberry Hill Road project and caused damage to a retaining wall and equipment, KING 5 Seattle reported.

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