Design-Assist, an Ambiguous Term Causing Conflict in the Construction Industry[1]
December 02, 2019 —
John P. Ahlers - Ahlers Cressman & Sleight PLLC“Design-Assist” is one of the recent cost-saving trends being touted for construction projects and, in particular, construction projects utilizing alternative procurement methods. If an internet search for the term, “design-assist” is made, the result will be numerous construction industry articles and white papers lauding “design-assist” as a recent cost-saving trend in construction procurement. From a legal perspective, however, the term “design-assist” is notably absent from court opinions and most state licensing laws. With the exception of the ConsensusDocs, few standard form contracts even include the term “design-assist” in their text.
The ConsensusDocs agreement provides examples of the Constructor’s obligations to perform “assisting activities” (the term “design-assist” is not used) and states that, notwithstanding the performance of such “assisting activities” by the Constructor, the responsibility of the design remains with the Designer unless otherwise stated in the Contract:
- Article 4.5 DESIGN PROFESSIONAL’S RESPONSIBIITIES The Designer shall furnish or provide all design and engineering services necessary to design the Project in accordance with the Owner’s objectives … the Designer shall draw upon the assistance of Constructor and others in developing the design, but the Designer shall retain overall responsibility for all design decisions….
- Article 4.6 CONSTRUCTOR’S RESPONSIBILITIES [T]he Constructor shall assist the Designer in the development of the Project Plan and Project Design but shall not provide professional services which constitute the practice of architecture or engineering unless the Constructor needs to provide such services in order to carry out its responsibilities … or unless specifically called for by the Contract Documents.
Read the court decisionRead the full story...Reprinted courtesy of
John P. Ahlers, Ahlers Cressman & Sleight PLLCMr. Ahlers may be contacted at
john.ahlers@acslawyers.com
The Prolonged Effects on Commercial Property From Extreme Weather
January 29, 2024 —
The Hartford Staff - The Hartford InsightsAs evidenced by the extraordinary heat in the Southwest, a string of tornadoes in South and Midwest, and heavy rains in California and Florida, 2023 was a banner year for extreme weather. However, 2024 may be no different, which means now is the time for businesses to rethink the way they approach volatile weather, as well as the frequency and severity of storms and natural disasters.
The risks and challenges that businesses face as extreme weather becomes stronger and causes more property damage, requires innovative technology with specialized insurance solutions. Through updated building codes, advancements in technology and meaningful infrastructure improvements, businesses can make a difference in protecting their property and reducing losses.
Stronger Building Codes To Withstand Storms
It is not uncommon to see the destruction that a hurricane or tornado leaves behind. However, stronger building codes are one of the best ways to make sure property can withstand catastrophes. Florida for example implemented changes to its building codes after Hurricane Andrew, and then again in 2007 after the Hurricanes of 2004 and 2005. New construction since then has made houses and buildings significantly more hurricane proof. Buildings constructed 30 years ago were likely built with codes that may have neglected the impact of strong winds from an extreme hurricane or significant rainfall that a storm can bring, especially along the Atlantic and Gulf coasts.
Read the court decisionRead the full story...Reprinted courtesy of
The Hartford Staff, The Hartford Insights
Third Circuit Follows Pennsylvania Law - Damage Caused by Faulty Workmanship Does Not Arise from an Occurrence
May 10, 2013 —
Tred EyerlyThe Third Circuit followed Pennsylvania law in determining that damage caused by faulty workmanship did not arise from an occurrence. Zurich Am. Ins. Co. v. R. M. Shoemaker Co., 2013 U.S. App. LEXIS 6093 (3d Cir. March 27, 2013).
The County sued R. M. Shoemaker, alleging faulty construction of an addition to a correctional institution. The County alleged Shoemaker negligently supervised its subcontractor, thereby permitting the subcontractor to engage in willful misconduct, resulting in damage to structural elements of the correctional institution. The County alleged that Shoemaker's negligence permitted water to intrude, damaging the electrical systems, acoustic ceilings and miscellaneous equipment.
Zurich sought a declaratory judgment that it was not required to defend or indemnify Shoemaker. The district court granted Zurich summary judgment. Relying on Pennsylvania law, the district court found that the allegations in the underlying action did not arise from an occurrence.
Read the court decisionRead the full story...Reprinted courtesy of
Tred EyerlyMr. Eyerly can be contacted at
te@hawaiilawyer.com
No Coverage For Damage Caused by Chinese Drywall
December 02, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe Florida Court of Appeals determined that there was no coverage for damage to the insured's home caused by the installation of Chinese drywall. Peek v. Am. Integrity Ins. Co., 2015 Fla. App. LEXIS 14147 (Fla. Ct. App. Sept. 25, 2015).
Chinese drywall was installed in the Peek's new home. After moving in, the Peeks reported to American Integrity a sulfur odor caused by the Chinese drywall. The odor caused the Peeks to vacate their home. The Peeks also claimed corrosion and deterioration of copper coils in the air conditioning system were caused by the Chinese drywall.
American Integrity denied coverage based upon policy exclusions for latent defects, corrosion, pollutants, and faulty, inadequate or defective constrution materials. The Peeks sued American Integrity.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Tarriffs, a Pandemic and War: Construction Contracts Must Withstand the Unforeseeable
May 16, 2022 —
Brett Moritz, Adrian Bastianelli III & Adam Handfinger - Construction ExecutiveSince the tariffs on steel and the first wave of the COVID-19 pandemic, the construction industry has been reeling from the impact of material shortages and price increases, labor shortages, breakdowns in the supply chain and the inflationary effect of these issues. Unfortunately, the war in Ukraine has only exacerbated the situation.
International conflicts can constrain supply, resulting in delays and price increases for contractors, subcontractors and suppliers. The disruption caused by the war is expected to be particularly acute due to the role that Russia and Ukraine play in the world economy and the effect of the economic sanctions that have been imposed on Russia by the United States and other countries. Russia controls approximately 10% of the global copper reserves and is estimated to produce about 10% of the world’s nickel supply. It also provides at least 30% of Europe’s oil and natural gas. Ukraine is a significant source of raw materials, such as iron. Thus, the war will cause significant shortages and price increases to the global construction industry. There are already reports of delays and cost increases for commodities such as nickel, aluminum, copper and—most importantly—steel, which have resulted in impacts to construction costs and schedules. Suppliers are especially sensitive to the volatile markets caused by these conditions. Some are insisting on automatic price increases in their purchase orders.
All of this, not to mention the anticipation of what may come next, points to the necessity for a new paradigm to achieve a successful project. It is more important today than ever that owners, contractors, subcontractors and suppliers reasonably address the economic and time impacts of these unforeseeable events in preparing contracts for future work and in administering existing contracts. Otherwise, the risk of a default on more than one level may put projects in jeopardy, to no one’s benefit.
Reprinted courtesy of
Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
Expansion of Statutes of Limitations and Repose in K-12 and Municipal Construction Contracts
March 27, 2019 —
Henry Bangert - Colorado Construction LitigationThe purpose of this whitepaper is to bring attention to a trend in K-12 and municipal construction contracts, which expands the time periods for law suits against construction professionals.
Introduction and Background
Under Colorado statute, the period of time within which a legal action for construction defects may be brought against a construction professional in Colorado is two years from when the claimant (or its predecessor in interest) discovers or in the exercise of reasonable diligence should have discovered the physical manifestations of a defect (the “Statute of Limitations”), but in no case may an action be brought more than six years after substantial completion of the improvement, unless the claim arises in the fifth or sixth year after substantial completion, in which event the action may be brought within two years of such date, i.e., up to eight years after substantial completion (the “Statute of Repose”). See C.R.S. § 13-80-104. While the triggering events differ for the Statute of Limitations and Statue of Repose, the periods are intended to run concurrently to limit the period of time an action may be brought against construction professionals for construction defects to, at most, eight years after substantial completion. Importantly, these limitations periods may be expanded by agreement.
Prior to 1986, Colorado law provided for a 10-year Statute of Repose. However, in 1986, Colorado’s legislature shortened the Statute of Repose time limit to the current six (or up to eight) year period. In 1986, Colorado also redefined the date the claim arises from the date the defect was discovered or should have been discovered to the date the physical manifestation of a defect was discovered or should have been discovered. Therefore, after 1986, the two-year limitations period could begin to run when a claimant should have discovered the manifestation of a defect, even if the claimant did not recognize that a defect existed.
Read the court decisionRead the full story...Reprinted courtesy of
David McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Former Mayor Arrested for Violating Stop Work Order
October 30, 2013 —
CDJ STAFFThe former mayor of Springfield, Florida has been arrested on charges of insurance fraud. More than a year ago, an investigator for the Bureau of Workers’ Compensation found that an employee of Walker’s construction company was working without workers’ compensation and issued a stop work order. Walker’s employees continued work.
The charges were delayed because Walker challenged the stop work order. Once it was determined that the stop work order was issued properly, Walker was charged with a third-degree felony.
Read the court decisionRead the full story...Reprinted courtesy of
KB Homes Sues Condo Buyers over Alleged Cybersquatting and Hacking
October 22, 2013 —
CDJ STAFFWillowbrook, a condominium complex in Lakewood Ranch, Florida has had problems with water intrusion. Now the builder is having problems with some of the residents. National home builder KB Homes is alleging that a pair of Willowbrook home owners who created a web site about their problems have violated federal cybersquatting laws, as the web site names they have registered are close to that KB Homes. The suit alleges that Andrew Smith and Daniel Koehler hope to either get KB Homes to purchase the web site or to buy back their homes.
The lawsuit also alleges that three other individuals, William Crismon, Patrick McGettigan, and Armando Oyola-Delgado, conspired to intercept e-mails between KB Home and Dueall Construction. KB Homes claims that the three gained access to a WiFi hotspot used by Dueall.
Read the court decisionRead the full story...Reprinted courtesy of
