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Laughing woman under umbrella

Approximately 25% of the building's slab floor, the section beneath the walk-in cooler, collapsed into the crawl space below.

Coverage for Collapse Ordered on Summary Judgment

Monday, November 21, 2022 — Tred R. Eyerly - Insurance Law Hawaii

A collapsed floor in a restaurant was found to be covered. J&J Fish on Center Street, Inc. v. Crum & Forster Spec. Ins. Co., 2022 U.S. Dist. LEXIS 163661 (D. Wis. Sept. 12, 2022).

J&J Fish rented property from Vision. Vision was obligated to keep the premises insured under an all-risk policy. Vision was also responsible for maintaining and repairing the property "including the slab flooring exterior walls of the premises." Vision never obtained insurance on the building, but J&J Fish secured a commercial property policy from Crum & Forster.

On May 29, 2020, approximately 25% of the building's slab floor, the section beneath the walk-in cooler, collapsed into the crawl space below. Dr. Daniel Wojnowski inspected the crawl space and observed overall dampness as well as a pool of water in the space. He concluded that the collapse occurred because the steel support beams and steel elements of the floor corroded after prolonged exposure to moisture. Based on this report, Crum & Forster denied coverage. J&J Fish sued and the parties moved for summary judgment.

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

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

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Businessman looking at money worried

The Court of Appeals of Texas considered whether the lower court erred in refusing to enforce an arbitration clause in a construction contract between the parties.

Too Costly to Be Fair: Texas Appellate Court Finds the Arbitration Clause in a Residential Construction Contract Unenforceable

Monday, November 21, 2022 — Gus Sara - The Subrogation Strategist

In Cont’l Homes of Tex., L.P. v. Perez, No. 04-21-00396-CV, 2022 Tex. App. LEXIS 7691, the Court of Appeals of Texas (Appellate Court) considered whether the lower court erred in refusing to enforce an arbitration clause in a construction contract between the parties. The Appellate Court considered the costs of the arbitration forum required by the contract in the context of the plaintiffs’ monthly household income. The court also compared the arbitration cost to the estimated cost of litigating the dispute. The court held that the arbitration clause was substantively unconscionable on the grounds that the arbitration costs were not affordable for the plaintiffs and not an “adequate and accessible substitute to litigation.” The Appellate Court affirmed the lower court’s decision denying the defendant’s motion to compel arbitration.

The plaintiffs, Giancarlo and Krystle Perez (collectively, the Perezes), hired the defendant, Continental Homes of Texas, LP d/b/a Express Home (Express Homes), to build a new home in San Antonio. Express Homes provided its standard contract, which included a binding arbitration clause. The clause stated that every potential dispute between the parties occurring before and after the closing of the purchase of the home was subject to binding arbitration, to be administered and conducted by the American Arbitration Association (AAA). The clause also stated that the costs of the arbitration were to be split by the parties.

Reprinted courtesy of Gus Sara, White and Williams LLP

Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Green house with leaf out of chimney

Ecological matters affect almost all levels of real estate development.

Sustainability Is an Ever-Increasing Issue in Development

Monday, November 21, 2022 — Scott L. Baker - Los Angeles Litigation Blog

Businesses must be open to change. It is essential to survive in the business world, regardless of the industry. This goes hand-in-hand with the necessity to change along with consumer needs and values as well.

With the increasing emphasis on sustainability across industries, many businesses have had to make their processes and products more environmentally friendly. However, in terms of real estate construction, there are some challenges.

SUSTAINABILITY IN NEW CONSTRUCTION IS NOW A MATTER OF LAW – NOT JUST A PREFERENCE

The push to become greener comes from many fronts. Property owners, potential buyers and even lawmakers all expect the real estate industry to go greener. For example, homeowners and businesses often want their properties to meet their personal values of sustainability.

Reprinted courtesy of Scott L. Baker, Baker & Associates

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

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New Technologies for Reduced-Carbon Concrete Are On the Horizon

November 21, 2022 — Nadine M. Post, Jeff Yoders, Emell D. Adolphus, Scott Judy - Engineering News-Record

Startups and more established suppliers of products that reduce the carbon footprint of concrete are developing systems to capture and sequester carbon dioxide. Some are even seeking ways to produce the material and its ingredients without creating huge carbon footprints.

Reprinted courtesy of Nadine M. Post, ENR, Jeff Yoders, ENR, Emell D. Adolphus, ENR and Scott Judy, ENR

Ms. Post may be contacted at postn@enr.com
Mr. Yoders may be contacted at yodersj@enr.com
Mr. Adolphus may be contacted at adolphuse@enr.com
Mr. Judy may be contacted at judys@enr.com

Is New Jersey's Unfair Claim Settlement Practices Act Obsolete?

November 21, 2022 — Bethany L. Barrese - Saxe Doernberger & Vita

Most states have some version of an Unfair Claim Settlement Practices Act (UCSPA), which is intended to prohibit insurers from engaging in unfair claims settlement practices. While the UCSPA is based off a model act, there are differences from state to state. For example, New Jersey’s UCSPA does not allow a private cause of action against an insurer – instead, the Commissioner of Banking and Insurance retains sole enforcement authority under the UCSPA. In comparison, Nevada’s version of the UCSPA creates a private cause of action for damages incurred as a result of a statutory violation.

The question this article addresses is whether counsel representing policyholders should consider the merits of pursuing a claim under New Jersey’s UCSPA, especially since a private cause of action is not permitted under the statute. Is the UCSPA obsolete from the standpoint of policyholders? This author believes the answer is “not entirely” and that coverage counsel should still consider the statute when contemplating a bad faith claim against an insurance company.

Ms. Barrese may be contacted at BBarrese@sdvlaw.com

Woodside Homes Received the Building Industry Association's Highest Accolade of "Build Of The Year" on November 10th

November 21, 2022 — Woodside Homes

RIVERSIDE, CA, Nov. 19, 2022 (GLOBE NEWSWIRE) -- Woodside Homes, one of the top 35 homebuilders in the U.S. and a wholly owned subsidiary of Sekisui House, Ltd., has earned the top accolade of "Builder of the Year" by the BIA Riverside County Chapter. The association formally recognized Woodside Homes as the recipient of this honor on November 10, 2022, at the Chapter Awards and Installation, "Celebrating an Industry Built on Resilience," to held at the Riverside Mission Inn.

"Resilience is a driving force of our industry – and more than ever, it defines the strength, determination, and passion behind every Woodside Homes employee and our many consultants and trade partners," said Chris Chambers, President of Woodside Homes, Southern California. "We are deeply honored to be recognized by our homebuilding peers at this year's annual event, where we acknowledge and embrace the power of resiliency within our noble industry."

About Woodside Homes
In 2022 Woodside Homes begins its 45th year in the business of designing and building homes for move-up and entry-level buyers. The company has sold more than 45,000 new homes since its inception and is the 34th largest homebuilder in the United States. Woodside Homes is dedicated to delivering an exceptional experience to every customer and acting as a trustworthy, knowledgeable guide throughout home buying, building, and ownership process.

Construction General Counsel Talk About A Tipping Point of Risk

November 21, 2022 — ConsensusDocs

ConsensusDocs’ Coalition Executive Director Brian Perlberg will be moderating a panel of construction general counsel at this year’s Construction Superconference. This session will provide practical information and describe real-world scenarios in which builders are increasingly getting stuck with design liability, even in design-bid-build projects.

The session “Designing a Way to Manage Design, Supply, and Subcontractor Risk as GCs Face a Tipping Point of Risk” will feature prominent general counsel from leading construction companies. Speakers include Ryan Lamb from Weitz, Matt Sanchez from Jaynes Corporation, and Steve Cvitanovic from Build Group. These experienced in-house attorneys will explain why some top-75 ENR general contractors have left the design-build market due to unreasonable contracts as well as contract administrative maneuvering that can amount to death by 10,000 cuts. The panel will also share insights on how defective construction from stretched trade partners and supply chain delays continue to wreak havoc in today’s challenging construction market.

Construction Superconference
December 6th-8th, 2022
MGM Grand
3799 Las Vegas Blvd S.
Las Vegas, NV, 89109

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Walking on a tightrope

This article reviews several considerations (although it is not an exhaustive list) for avoiding one-sided contracts, including some of the benefits created through the use of equitable contract clauses.

Re-Thinking the One-Sided Contract: Considerations for a More Balanced Approach to Contracting

Monday, November 21, 2022 — William Underwood - ConsensusDocs

Construction projects can be inherently risky – often there are multiple parties (owners, architects, engineers, contractors, subcontractors, consultants, vendors, government officials, sureties, insurers, and many others), unforeseen site conditions, tangled supply chains, acts of God, inadequate funding, site safety matters, and a whole host of other issues that can make even a relatively straight-forward job complex. Parties necessarily want to minimize their individual risk to the greatest extent possible on construction projects. And to do so, they may seek to push as much risk as possible onto the other side through one-sided terms in their construction contract.  

But is an entirely one-sided contract the best way to mitigate risk? In many instances, the answer is no. Every contract is different – and many considerations should be taken into account when drafting and negotiating contracts – but entirely one-sided can often have unintended consequences and create risks that otherwise might not exist in a contract that allocates and balances risk more equally across the parties.

This article reviews several considerations (although it is not an exhaustive list) for avoiding one-sided contracts, including some of the benefits created through the use of equitable contract clauses. And for context, some examples of one-sided contract clauses include no relief for other contractor/owner-caused delays; no relief for force majeure events; no relief for unforeseen site conditions; and broad form indemnification clauses (i.e. one party assumes the obligation to pay for another party’s liability even if the other party is solely at fault). Again, this is a non-exhaustive list, and many other standard contract provisions can be altered to become one-sided. But the general premise of a “one-sided contract clause” is that it shifts all risk, obligation, and liability to one party. And this article examines why that might not be the best idea.  

Reprinted courtesy of William Underwood, Jones Walker LLP

Mr. Underwood may be contacted at wunderwood@joneswalker.com

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Three business people talking

Liquidated damages provisions alleviate the need for potentially expensive litigation associated with proving damages.

Liquidated Damages: Too High and It’s a Penalty. Too Low and You’re Out of Luck.

Monday, November 21, 2022 — Christian Fernandez - Snell & Wilmer Real Estate Litigation Blog

Liquidated damages provisions in commercial and residential real estate contracts play a vital role when a transaction goes south, and should be given careful consideration when negotiating a real estate contract. Liquidated damages may be referred to in a variety of ways, such as “earnest money,” a “good-faith deposit,” or a “non-refundable deposit,” but each typically denote a negotiated amount of money that a seller is entitled to retain should a buyer breach a purchase and sale agreement. The purpose of liquidated damages is to provide the parties with certainty when actual damages arising from a breach of contract may be difficult to calculate. Accordingly, liquidated damages provisions alleviate the need for potentially expensive litigation associated with proving damages.

While parties are free to negotiate the amount of liquidated damages, the amount must approximate the loss anticipated at the time of contracting, or the loss that actually occurs as a result of a breach. Arizona courts have held that where the amount of liquidated damages is unreasonably large when compared to the anticipated loss or actual loss, the liquidated damages provision is unenforceable as a penalty. A breaching party faced with high liquidated damages will often seek to invalidate the provision as a penalty. If a court agrees, the non-breaching party may still recover damages, but must go through the process of proving such damages. Therefore, when negotiating a real estate contract, consideration should be given as to whether a liquidated damages amount is arbitrarily high when compared to an anticipated loss in the event of a breach.

Reprinted courtesy of Christian Fernandez, Snell & Wilmer

Mr. Fernandez may be contacted at cfernandez@swlaw.com

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Gavel

Sherwin-Williams highlights how insurers may try to narrow the meaning of undefined terms in their insurance policies.

Court Finds That $400 Million Paid Into Abatement Fund Qualifies as “Damages” Under the Insured’s Policies

Monday, November 21, 2022 — Lorelie S. Masters & Yaniel Abreu - Hunton Insurance Recovery Blog

In Sherwin-Williams Co. v. Certain Underwriters at Lloyd’s London, et al., the Court of Appeals for Ohio’s Eighth District reversed the lower court, finding that money paid by the insured into an abatement fund was “damages” as that undefined term was used in the policyholder’s insurance policies. 2022-Ohio-3031, ¶ 1. Sherwin-Williams is a cautionary tale about how insurers may try to narrow the meaning of undefined terms in their insurance policies.

The dispute in Sherwin-Williams focused on coverage for $400 million that the policyholder and other defendants were ordered to pay into an abatement fund to be used by California cities and counties to mitigate the hazards caused by lead paint in homes. Id. ¶ 1. Although the underlying litigation proceeded in California, Ohio law governed coverage, which raised issues of first impression in Ohio. Id. Among other things, the insurers argued that the money paid into the abatement fund did not qualify as “damages” under the policies. Id. ¶ 57. The insured argued that, because the insurers did not define “damages” in the policies, the term had to be given its ordinary meaning. Id. ¶ 56.

Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth and Yaniel Abreu, Hunton Andrews Kurth

Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Abreu may be contacted at yabreu@HuntonAK.com


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Open law book

Workers compensation immunity provides immunity to an employer by workers compensation insurance becoming the exclusive form of liability.

Value In Being Deemed “Statutory Employer” Under Workers Compensation Law

Monday, November 21, 2022 — David Adelstein - Florida Construction Legal Updates

When it comes to workers compensation law, as a contractor, there are a couple of important considerations. One, you will be deemed a statutory employer. And two, you want your subcontractors (and, of course, yourself) to have workers compensation insurance so that you can enjoy the protection of workers compensation immunity. Workers compensation immunity provides immunity to an employer (i.e., a statutory employer) by workers compensation insurance becoming the exclusive form of liability. 

A recent non-construction case, Bar-Harbour Tower Condominium Association, Inc. v. Bellorin, 47 Fla.L.Weekly D2114a (Fla. 3d DCA 2022), illustrates the importance of these considerations. Here, a condominium association per its governing documents (i.e., declaration of condominium) was authorized to contract for valet parking services for its unit owners. An employee of the valet company (hired by the association) got hurt and sued the association. The association argued it should be deemed a statutory employer under workers compensation law and, as such, entitled to workers compensation immunity. The trial court disagreed, and the association appealed. The Third District Court of Appeal held the association was the statutory employer and, thus, workers compensation immunity did apply.

Reprinted courtesy of David Adelstein, Kirwin Norris

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

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Best practice puzzle piece

The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process.

Haight has been named a Metropolitan Los Angeles Tier 1 “Best Law Firm” and Tier 2 for Orange County by U.S. News – Best Lawyers® “Best Law Firms” in 2023

Monday, November 21, 2022 — Haight Brown & Bonesteel

Haight Brown & Bonesteel LLP is listed in the U.S. News – Best Lawyers® (2023 Edition) “Best Law Firms” list with metro rankings in the following areas:

Los Angeles

  • Metropolitan Tier 1
    • Insurance Law
    • Product Liability Litigation – Defendants

Orange County

  • Metropolitan Tier 2
    • Product Liability Litigation – Defendants
Reprinted courtesy of Haight Brown & Bonesteel
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Blue question mark

The regulations also require that developers and the entities funding these projects perform the following actions before, during and after the completion of their projects.

Certain Private Projects Now Fall Under Prevailing Wage Laws. Is Yours One of Them?

Monday, November 21, 2022 — Nancy Cox - Construction Executive

For the last few years, New York State Labor Law has required that all contractors overseeing public development projects pay their workers the prevailing wage rate, which includes a regulated hourly rate for wage and benefits. Fast forward to 2022, the requirements of Section 224-A are extending to private projects costing more than $5 million where 30% or more of the financing for the construction costs was obtained from public sources like state or local funding.

There are a number of forms of financing that qualify as public funding, and its important for developers to understand exactly how these are defined under the new law. Public funding includes any indirect or direct payment from government authorities, savings from fees, tax credits or payments in lieu of taxes, loans from public entities and more.

In order to provide further clarity, the law also clearly defined certain project exemptions to the new rule. First, affordable housing projects will not be affected, along with historic rehabilitation projects or small renewable energy projects. Also, projects for established non-profit companies receive an exemption as long as the company reports gross annual revenues less than $5 million. Other exemptions include projects for schools under 60,000 square feet and those funded by the Urban Development Corporation’s Restore New York's Communities Initiative.

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


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The Best fireworks

Lewis Brisbois has once again been ranked Tier 1 nationally by U.S. News & World Report/Best Lawyers.

Lewis Brisbois Ranked Tier 1 Nationally for Insurance Law, Mass Tort/Class Actions Defense by U.S. News/Best Lawyers

Monday, November 21, 2022 — Lewis Brisbois

(November 3, 2022) - Lewis Brisbois has once again been ranked Tier 1 nationally by U.S. News & World Report/Best Lawyers for ‘Insurance Law’ and ‘Mass Tort Litigation / Class Actions – Defendants,’ as well as ranking Tier 1 in 14 different practice areas across 15 metro regions.

In addition to Lewis Brisbois' national ranking, the firm also ranked Tier 1 for ‘Insurance Law’ in the Philadelphia, Reno, and Tampa metro areas, and Tier 1 for ‘Mass Tort Litigation / Class Actions – Defendants’ in the Los Angeles area. The firm was also ranked Tier 1 in the following regional categories:

  • ‘Commercial Litigation’ in Akron;
  • ‘Corporate Governance Law’ in San Francisco;
  • ‘Corporate Law’ in Akron;
  • ‘Environmental Law’ in Washington, D.C.;
  • ‘Litigation - Health Care’ in Portland, Ore. and Roanoke;
  • ‘Litigation – Municipal’ in Wichita;
  • ‘Medical Malpractice Law – Defendants’ in Chicago and Roanoke;
  • ‘Mergers & Acquisitions Law’ in Akron;
  • ‘Personal Injury Litigation – Defendants’ in Chicago, Inland Empire, New York City, Orange County, Roanoke, and Seattle;
  • ‘Product Liability Litigation – Defendants’ in Philadelphia;
  • ‘Tax Law’ in Akron; and
  • ‘Trusts & Estates Law’ in Akron.
Reprinted courtesy of Lewis Brisbois
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Power station

The power station has been dogged by cost overruns, defects, corruption and labor strife, and their completion has run years behind schedule.

Chimney Collapses at South African Utility’s Unfinished $13 Billion Power Plant

Monday, November 21, 2022 — Paul Burkhardt - Bloomberg

South Africa’s newest coal-fired power plant, which has been under construction since 2008 and will cost an estimated 232 billion rand ($12.7 billion), shut one of its six generating units after a duct collapsed.

The unit at the Kusile plant could remain offline “for a few months” although a clearer estimate will be known over coming weeks, state-owned utility Eskom Holdings SOC Ltd. said in a statement late Wednesday. The outage comes as the country endures record blackouts -- locally known as loadshedding.

The duct appeared to have sheared off from the unit’s main structure, a photo posted on Twitter by Anton Eberhard, a professor at the University of Cape Town’s Graduate School of Business, showed. 

Reprinted courtesy of Paul Burkhardt, Bloomberg
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Businessman with finger on digital model

We must engineer the knowledge and information of our buildings.

A Networked World of Buildings

Monday, November 21, 2022 — Pieter Pauwels - AEC Business

Buildings are living things. Buildings change shape every day and every minute. They are used by plenty of people, endlessly. Buildings shape our context and environment, and they impact our well-being to a large extent. Buildings constantly change their behavior under the influence of external conditions and occupants. We have an interest in engineering these buildings and making them as comfortable and pleasant as possible. Instead of treating buildings as static monuments that happen to be in our environment, it makes sense to treat them as living things that change incessantly, with streams of people, streams of materials and goods, and as ever-changing ecosystems of living beings. 

And so, we must engineer the knowledge and information of our buildings! We need to provide our buildings with a set of brains, brains that evolve and continuously track the state of the facility and all of its internals: systems, materials, demountable elements, furniture, and people. The brains hold a snapshot of the building at any moment and allow us to ensure that this living building responds in a useful and likable manner (comfort). And this needs efforts from us human beings, and not only from ‘the AI.’

Reprinted courtesy of Pieter Pauwels, AEC Business

Mr. Pauwels may be contacted at p.pauwels@tue.nl

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Jet taking off

SFO’s $7.5B capital program is nearing the finish line with no claims or lawsuits.

San Francisco International Airport Reaches New Heights in Sustainable Project Delivery

Monday, November 21, 2022 — Aileen Cho - Engineering News-Record

Ten years ago, Geoff Neumayr decided he was tired of “doing design and construction by combat.” San Francisco International Airport had completed a master plan for the complex and the front of the airport facilities doing things the traditional way.

Reprinted courtesy of Aileen Cho, Engineering News-Record

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

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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

714.701.9180
714.701.9180