California Bullet Train Clears Federal Environmental Approval
June 30, 2014 —
Michael B. Marois – BloombergThe U.S. Federal Railroad Administration has approved an environmental review needed to begin building a portion of a $68 billion California high-speed rail line that has been mired in lawsuits.
The agency, part of the Transportation Department, said in a release that it cleared a 114-mile (183-kilometer) stretch of the project in the Central Valley.
The California High-Speed Rail Authority has been blocked from selling bonds to begin construction of the first U.S. bullet train until a court decides whether details of the financing were adequately disclosed.
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Michael B. Marois, BloombergMr. Marois may be contacted at
mmarois@bloomberg.net
Bert L. Howe & Associates Celebrates 21-Year Success Story
July 31, 2014 —
Beverley BevenFlorez-CDJ STAFFJuly 31, 2014 marks the 21st anniversary of Bert L. Howe & Associates, Inc. (BHA). The company commenced operations on this date 21 years ago today. During the last two decades, the landscape of the construction defect industry as a whole has shifted significantly. In the early nineties, the industry consisted substantially of multi-family residential projects, and construction defect litigation was a regional concern focused primarily on Southern California.
In the intervening 21 years, the construction defect industry has become a nationwide concern with the majority of states adopting builders’ right to repair legislation. To mark the 21st anniversary of BHA, we spoke with some of the key personnel to get some insights and impressions of how the industry and the company have evolved throughout the years.
On July 31st, 1993, Bert formed the company after a long career as a general contractor. He had become involved in the construction forensics field in 1988, providing general construction investigation and expert support services to legal professionals handling multifamily residential cases.
James Howe, the firm's current President and Chief Operating Officer, joined the company in November 1993. Previously, he had been recruited by The New York Times and served as operations manager for their Orange County, Los Angeles, and Inland Empire operations.
In January of 1994, operations were relocated to a small, 1,100-square foot, two-story walk-up in Anaheim Hills, California. James stated that they purchased furniture from Plummers, and he and Bert carted all of the furniture up the stairs and assembled it themselves over the weekend.
Immediately, they hired the first employee, Matthew J. Nardella, an architect and graduate from Cal Poly University, who also came to the firm with substantial construction and design experience.
Matt was scheduled to begin work on January 17th, 1994, the day of the Northridge earthquake. “I remember calling Bert,” Matt said. “‘Bert, is everything okay down there? Do you want me to come in?’ All of the news said freeways collapsed. I didn’t know what was going on with the roads,” Matt continued. “Bert’s like, ‘Yeah, nothing happened here, get over here.’ I said, ‘Okay, I’ll be there.’” Matt chuckled at the memory.
Even back in early 1994, Bert was in high demand as an expert witness. “He was everyone’s go-to-guy,” Matt Nardella stated. “The day a case was filed they would call him first.”
“He had a real desire,” Susan Howe, BHA’s Chief Executive Officer, said. “The primary way Bert worked on growing the business was by showing up, being prepared, and being full of ideas. If there was a problem or an issue, he would come up with a solution on how to handle it in the scope of what we were doing. He identified solutions and provided additional benefits to his clients. That’s how he grew the business, really. He grew each individual relationship.”
During that period, the type and scope of projects began to shift into a more diversified mix, including hotels, resorts, warehouses, storage facilities, restaurants, and more, though, at the time, BHA mainly provided expert witness support in construction defect cases involving attached housing developments, such as condominiums and townhomes.
Many of the other current key employees within the firm were hired during the mid-90s and continue with the firm today. Don MacGregor, John B. A. Mancini, and Jorge Porter were hired during this period. “The business was growing quickly and constantly from the moment I walked in the door,” Don MacGregor said, speaking of his early days with BHA. “Within just a few months of me being hired, the firm added six additional architects, engineers, and design professionals to meet client demands.”
Between 1995 and 1996, the company moved to a larger office (about 2,000 square feet), then added an additional 1,000 square feet of office space by adding on an adjoining unit. However, by 1997, James started looking for new, bigger office space. It was during this time that the firm’s current Chief Executive Officer joined the company.
Susan G. Howe left an executive position at a Newport Beach based business bank to focus her energy full time on the company's financial affairs and regulatory compliance issues.
When James walked in to what is now the firm’s Corporate Headquarters at 5415 E. La Palma in Anaheim Hills, it seemed enormous. At 5,500 square feet, it was twice the size of the modest current office. The space had previously been built out by American Express Travel Related Services.
In 1998, shortly after moving operations to Anaheim Hills, another key person in the BHA story joined the firm, Mark Chapman. "I remember interviewing Mark and feeling strongly that he was destined to become a recognized presence within this industry,” James Howe stated. “I was particularly intrigued with his dual credentials. Being a licensed professional engineer and a licensed general contractor provided the credibility he needed to speak to both civil engineering issues and general contracting or cost issues. This seemed like a win-win for the client. He was also a very strong negotiator coming in, and I respected that," James mused.
Mark recalled the recruitment process and his early discussions with James. "The job at BHA was different and intriguing enough to get me to make what ultimately turned out to be the right decision,” Mark stated. “I had been concerned with design for most of my career, but was interested in this highly specialized niche industry. I knew the industry existed, but it was still highly specialized at the time. I had no idea that I could make a career out of it. Nor did I realize that my skill set as an engineer and contractor was the perfect fit to handle the multi-faceted analysis that is sometimes required. The combination of design analysis, field work, meetings, and mediations turned out to be a refreshing career change.
"Working with Bert was a learning experience I will always remember and cherish,” Mark said. “He always said his door was open anytime I needed anything. When I did have a question, he would always take whatever time was needed to listen, think about it, and give me an answer. I was always impressed because not only did he always have an answer, it was always the right answer. Bert made me feel like family. I knew I had made it and gained his confidence when I walked into his office one day and asked his opinion and he simply said ‘You can handle it, I trust you.’ The past 16 years of my life have been the most rewarding personally and professionally. I owe it mostly to my experience at BHA, the Howe family's generosity, and my associates. It takes a great team to be successful. No one can do it by themselves.”
Soon enough, the once cavernous space was too small. The company was still growing, and arrangements were made to lease the adjoining unit, 5413, doubling the corporate office's footprint to a little over 12,000 square feet. James wondered if the firm would once again fill the new space: “Again, it seemed big at the time,” James said. “Somehow we filled it up, and now we’re busting out of it.”
John Springman joined BHA in June of 2000. John had worked with Bert throughout the years on several cases, John as the architectural expert and Bert as the general contracting/cost designee. They had worked so well together, that Bert spent a year or two recruiting him to join BHA.
By this time, Bert, Susan, and James had expanded their vision from only Bert as an expert witness, to BHA becoming a ‘multi-disciplinary’ firm with experts in differing fields. “At first, [Bert’s] primary form of testimony was cost estimating and standard of care for general contracting practices,” Susan said, “but he soon realized the value in developing a construction experts group comprising licensed architects, engineers, roofing and waterproofing experts, and building envelope specialists."
Susan explained how innovative the one-stop shop philosophy was back then. “[Bert] had not only to recruit John Springman and people like him, but we had to communicate the synergies, cost and productivity benefits to our existing client base, because it was innovative and different.”
However, it didn’t take long for BHA’s clients to reap the great benefits having access to a multi-disciplinary integrated support solution offered: “We were able to provide cost savings to our clients, because we were collecting the data and sharing it to all of the different disciplines within our own organization,” Susan said.
In the early 2000s, the projects began changing from condominium developer cases to single-family home cases. According to John, “The insurance industry started to write in exclusions for condominiums. Forced to go elsewhere for business, it went to single family homes.”
Also around this time, the Aas court decision changed the construction defect industry in California. The court ruled that you have to have damage to have a claim. “Just because a code wasn’t followed didn’t matter unless damage occurred from it,” John said. “It is under breach of contract and other things, but not negligence. Insurance covered negligence, so it took away insurance coverage. Then SB 800 [California’s Right to Repair Act] came about and took a lot of those things and brought them back in.”
While continuing to grow its California market, in 1999 BHA extended its reach into other regions beginning with Nevada and Arizona. By 2003, their reach extended to the east coast with satellite offices in Ohio, Kentucky, and South Carolina.
The types of projects BHA handled also diversified. BHA continued their work with production housing and condominiums and other attached housing, and they supplemented this work with cases involving high-rise and mid-rise buildings, hospitals, hotels, schools and universities, religious institutions, sprawling custom homes, retail complexes, as well as handling delay claims, premises liability, trip-and-fall cases, worker compensation files, and others.
Susan recalled one of BHA’s first international cases that involved a mining operation in Chile. “The core of it was construction defect, but our main job was design analysis and estimating on a really huge scale,” Susan said. The firm was engaged directly through AIG. “An adjuster there contacted Bert at the West Coast Casualty seminar, a few weeks later Bert and half of the office were in Santiago. It was a very memorable assignment; I remember the litigation part of the case was handled largely in the capital city of Santiago. But the mining operations were quite remote. Each of our employees had to undergo altitude testing prior to being performing site investigations at the mining and processing facilities.”
By 2010, BHA had grown to a staff of over forty associates, with satellite offices across the country to support the growing regional businesses. However, in September of 2011, BHA’s beloved founder and President Bert Howe passed away after suffering a heart attack.
While Bert’s presence is still missed by the associates and, most especially, his wife and son, the company was well-positioned to continue on. Susan explained that James for about five years before Bert’s death had been slowly deleveraging Bert from the business. “He was helping his father to be able to work less,” Susan stated. “And as a result of that, we had all these great people like Matt Nardella, John Springman, Mark Chapman, Brad Hughes, John Tolman, Charlie Miller, Jerry Miles, and others who had significant tenure with the firm. They had all worked very closely with Bert, and had really matured, and now they had a few extra gray hairs."
So what’s next for Bert L. Howe & Associates, Inc.? Susan sees greater technological changes, as well as diversification in the types of projects, and the ability to offer additional value added services to their clients.
James stated that BHA has the capability to competitively enter new markets providing a superior credibility, cost, and customer service proposition. “Leveraging from our smart office techniques, proprietary construction forensics technologies, and mature business processes, we could effectively go into any regional market as efficiently as any other company, more efficiently than most, and bring a great deal of value to clients with minimal capital investment in these various markets.”
James also sees more opportunities for career BHA employees who are ready to take on new responsibilities. “I would like to see, and I’m trying to create, new opportunities and challenges for people to continue to be upwardly mobile,” James said. “I am energized by the prospect of delivering additional value to clients, and providing additional opportunities for key people here to grow and improve their lives economically through the growth of the company."
BHA currently is comprised of sixty employees, serving clients throughout the U.S. with offices in Anaheim Hills, California; Sacramento, California; San Diego, California; Las Vegas, Nevada; Salt Lake City, Utah; Denver, Colorado; Phoenix, Arizona; Miami, Florida; Houston, Texas; and San Antonio, Texas.
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Mold Due to Construction Defects May Temporarily Close Fire Station
October 25, 2013 —
CDJ STAFFFire Station 5 in Chino, California is about to undergo mold remediation. Ruben Martinez, the city’s Public Works Director, expects the station to be closed during remediation. “We’d like to get the firemen out of there so there isn’t any potential infection or worker’s compensation issues,” he said. However, Fire Department Captain Steve Harrison did not think the station needed to be closed. “We are adamant the station stays staffed while the remediation work is completed.”
The mold came about due to problems the station has had with roof leaks since its opening in 1999. The current set of repairs will cost between $12,000 and $25,000, and the city is discussing matters with its insurer to determine who will pay for the repairs. It’ won’t be the original contractor, as the building is past the 10-year limit for construction defect claims. Even if a claim were possible, the contractor who built the building is bankrupt.
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Liability policy covers negligent construction: GA high court
October 31, 2010 —
Michael Bradford in Business InsuranceATLANTA—Negligent construction that results in damage to surrounding property constitutes an occurrence under a commercial general liability policy, the Georgia Supreme Court has ruled.
In a 6-1 opinion Monday in
American Empire Surplus Lines Insurance Co. Inc. vs. Hathaway Development Co. Inc., the Georgia high court upheld a lower court ruling that the general contractor’s claim for damage caused by a subcontractor’s faulty plumbing work was covered.
The ruling on construction defects is the latest in number of such cases across the United States
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Reprinted courtesy of Michael Bradford of Business Insurance.
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The “Right to Repair” Construction Defects in the Rocky Mountain and Plains Region
October 16, 2018 —
Jean Meyer & Sheri Roswell - Colorado Construction Litigation BlogIn excess of 30 states have enacted tort reform legislation requiring property owners to notify construction professionals of the presence of alleged construction defects prior to the commencement of a lawsuit. These statutes also often permit construction professionals to make an offer of repair within a statutorily defined period of time after receipt of a notice of claim letter. Undoubtedly, the notice-of-claim process has played a meaningful part in bringing construction professionals and claimants to timely resolutions of construction defect concerns in isolated instances.
However, while these statutes are commonly referred to as “right of repair” legislation, their practical effect is often reduced to little more than procedural empty gestures serving as a prelude to litigation. This article will briefly survey the “right to repair” statutes in Colorado, Montana, North Dakota and South Dakota. In Nebraska, New Mexico, Utah and Wyoming there is no right to repair or notice-of claim statue.
Reprinted courtesy of
Jean Meyer, Higgins, Hopkins, McLain & Roswell LLC and
Sheri Roswell, Higgins, Hopkins, McLain & Roswell LLC
Mr. Bracken, may be contacted at meyer@hhmrlaw.com
Ms. Russo may be contacted at roswell@hhmrlaw.com
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A Community Constantly on the Brink of Disaster
February 06, 2023 —
Jason Daniel Feld - Kahana FeldIn the beautiful coastline region along the famous Pacific Coast Highway between Ventura and Santa Barbara rests the small cottage town of La Conchita. With unobstructed ocean views, this community is only 820 feet wide on a narrow strip of land abutting a 590 feet high cliffside bluff. The bluff has a slope of approximately 35 degrees and consists of poorly cemented marine sediments. This is the perfect recipe for constant disaster from a geological perspective and the site of several major landslides that have devastated this community. Geologic evidence indicates that landslides, which are part of the larger Rincon Mountain slides, have been occurring at and near La Conchita for many thousands of years up to the present with reported landslides beginning as early as 1865. In both 1889 and 1909, the
Southern Pacific Rail Line
running along the coast was inundated. In the 1909 slide, a train was buried. Since that time, other slides have occurred, covering at times cultivated land, roadways, and the community itself. The two most devastating landslides occurred in 1995 and 2005.
1995 Landslide
From October 1994-March 1995, there was double the amount of seasonal rainfall for the area – in excess of 30 inches. The slide occurred on March 3, 1995, when surface cracks in the upper part of the slope opened on the hillside, and
surface runoff was infiltrating into the subsurface. The heavy rains essentially saturated the slope causing a massive slide. On March 4, 1995, the hill behind La Conchita failed, moving tens of meters in minutes, and buried nine homes with no loss of life. The
County of Ventura immediately declared the whole community a
Geological Hazard Area, imposing building restrictions on the community to restrict new construction. On March 10, 1995, a subsequent debris flow from a canyon to the northwest damaged five additional houses in the northwestern part of La Conchita. In total, the slide measured approximately 390 feet wide, 1080 feet long and 98 feet deep. The deposit covered approximately 9.9 acres, and the volume was estimated to be approximately 1.7 million cubic yards of sediment. The devastation was immeasurable and the damage to homes, property and infrastructure was in the millions of dollars to repair. Litigation quickly arose following the 1995 slide with seventy-one homeowners suing the La Conchita Ranch Co. in Bateman v. La Conchita Ranch Co. The judge ruled that irrigation was not the major cause of the slide and that the ranch owners were not responsible.
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Jason Daniel Feld, Kahana FeldMr. Feld may be contacted at
jfeld@kahanafeld.com
The Economic Loss Rule: From Where Does the Duty Arise?
January 24, 2022 —
Taylor Hite - Colorado Construction LitigationWhen entering a contract under Colorado law or attempting to enforce your rights when the other party breaches a contract, it is important to know and understand what rights you have and what claims you can bring or defenses you may have. One important consideration is Colorado’s version of the economic loss rule. The Colorado Supreme Court has issued several opinions clarifying the scope of the economic loss rule since it adopted the rule in 2000. The purpose of the economic loss rule is to maintain the boundary between contract law and tort law.
In Colorado, the economic loss rule provides that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for the breach without an independent duty of care under tort law. In most instances the economic loss rule will not bar intentional tort claims. The question becomes: from where does the duty arise? Is there an independent duty in tort law? Did the duty arise solely from the contract?
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Taylor Hite, Higgins, Hopkins, McLain & Roswell, LLCMs. Hite may be contacted at
Hite@hhmrlaw.com
Unpaid Subcontractor Walks Off the Job and Wins
September 01, 2016 —
John P. Ahlers – Ahlers & Cressman PLLCMake the following inquiry of your constructional lawyer, watch him/her sit up in his/her chair and give your question immediate attention: “I haven’t been paid, can I walk off the job?” The answer to this question is a strong “maybe, but it’s risky.” Walking off the project has a significant downside. The risk is that the judge who reviews your decision, sometimes years after the event, may not agree that the non-payment was a material breach and, thus, suspension of performance (walking off) is not justified.
A breach of contract occurs where, without legal justification, a party fails to perform any promise that forms a whole or part of the contract. Not all breaches are equal. Some failures to perform a promise are “nominal,” “trifling” or “technical.” These breaches do not excuse performance under the contract by the non-breaching party. If the breach is “material,” that is, goes to the essential purpose of the agreement, is a question that only a judge decides, and only after the decision was made as to whether to walk off the job or not. Therefore, before deciding whether to walk off the job, you have to second guess what a judge may decide under the circumstances. Since not all judges see things the same way, the decision is fraught with uncertainty and risk.
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John P. Ahlers, Ahlers & Cressman PLLCMr. Ahlers may be contacted at
jahlers@ac-lawyers.com
