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    Building Expert News and Information
    For Milford Delaware


    Flood Insurance Claim Filed in State Court Properly Dismissed

    OSHA Issues New Rules on Injury Record Keeping

    Terminating Notice of Commencement Without Contractor’s Final Payment Affidavit

    Replacement of Defective Gym Construction Exceeds Original Cost

    Dallas Condo Project to Expand

    Quick Note: Attorney’s Fees and the Significant Issues Test

    California Department of Corrections Gets Hit With the Prison Bid Protest Blues

    Employees Versus Independent Contractors

    New York Public Library’s “Most Comprehensive Renovation” In Its History

    The Best Lawyers in America© Peer Review Names Eight Newmeyer & Dillion Partners in Multiple Categories and Two Partners as Orange County’s Lawyers of the Year in Construction and Insurance Law

    Duty to Defend Sorted Between Two Insurers Based Upon Lease and Policies

    Massachusetts Couple Seek to Recuse Judge in Construction Defect Case

    What Rich Millennials Want in a Luxury Home: 20,000 Square Feet

    Construction Problems May Delay Bay Bridge

    The Sky is Falling! – Or is it? Impacting Lives through Addressing the Fear of Environmental Liabilities

    Two Firm Members Among the “Best Lawyers in America”

    Town Concerned Over Sinkhole at Condo Complex

    Lien Law Unlikely To Change — Yet

    New Green Standards; Same Green Warnings for Architects & Engineers (law note)

    Developer’s Fraudulent Statements Are His Responsibility Alone in Construction Defect Case

    Subcontractors Have a Duty to Clarify Ambiguities in Bid Documents

    2015-2016 California Labor & Employment Laws Affecting Construction Industry

    Napa Quake, Flooding Cost $4 Billion in U.S. in August

    SIGAR Report Finds +$15 Billion in “Waste, Fraud and Abuse” in Afghanistan

    Excess-Escape Other Insurance Provision Unenforceable to Avoid Defense Cost Contribution Despite Placement in Policy’s Coverage Grant

    This New Indicator Shows There's No Bubble Forming in U.S. Housing

    Application of Efficient Proximate Cause Doctrine Supports Coverage

    Making the Construction Industry a Safer place for Women

    Asbestos Exclusion Bars Coverage

    Arizona Court of Appeals Awards Attorneys’ Fees in Quiet-Title Action

    Disaster-Relief Bill Stalls in Senate

    Insurance Law Alert: Ambiguous Producer Agreement Makes Agent-Broker Status a Jury Question

    Avoiding Construction Defect “Nightmares” in Florida

    Colorado Supreme Court Grants the Petition for Writ of Certiorari in Vallagio v. Metropolitan Homes

    One to Watch: Case Takes on Economic Loss Rule and Professional Duties

    Slip and Fall Claim from Standing Water in Parking Garage

    Code Changes Pave Way for CLT in Tall Buildings and Spark Flammability Debate

    Nevada Lawmakers Had Private Meetings on Construction Defects

    Ninth Circuit Holds Efficient Proximate Cause Doctrine Applies Beyond All-Risk Policies

    Suing a Local Government in Land Use Cases – Part 1 – Substantive Due Process

    Ackman Group Pays $91.5 Million for Condo at NYC’s One57

    Canadian Developer Faces Charges After Massive Fire on Construction Site

    Indemnity Clauses—What do they mean, and what should you be looking for?

    Estoppel Certificate? Estop and Check Your Lease

    Travelers v. Larimer County and the Concept of Covered Cause of Loss

    Be Careful in Contracting and Business

    When is a Residential Subcontractor not Subject to the VCPA? Read to Find Out

    Construction and Contract Issues Blamed for Problems at Anchorage Port

    Almost Nothing Is Impossible

    Scarce Cemetery Space Creates Prices to Die For: Cities
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    MILFORD DELAWARE BUILDING EXPERT
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    The Milford, Delaware Building Expert Group at BHA, leverages from the experience gained through more than 5,500 construction related expert witness designations encompassing a wide spectrum of construction related disputes. Leveraging from this considerable body of experience, BHA provides construction related trial support and expert services to Milford's most recognized construction litigation practitioners, commercial general liability carriers, owners, construction practice groups, as well as a variety of state and local government agencies.

    Building Expert News & Info
    Milford, Delaware

    Oregon agreement to procure insurance, anti-indemnity statute, and self-insured retention

    March 05, 2011 —

    In Continental Casualty Ins. Co. v. Zurich American Ins. Co., No. 09-35484 (9th Cir. Oct. 28, 2010), general contractor TCR was sued by an employee of subcontractor Safeway for bodily injuries suffered while working on the project. In the subcontract, Safeway agreed to procure primary insurance providing coverage for TCR for liability arising out of Safeway’s negligence. Safeway’s CGL policy included a self-insured retention that had to be satisfied before the insurer had a duty to defend. TCR filed suit against Safeway alleging that

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    Reprinted courtesy of CDCoverage.com

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    PATH Station Designed by Architect Known for Beautiful Structures, Defects, and Cost Overruns

    October 01, 2013 —
    The new PATH station at the World Trade Center site in New York is six years behind schedule and its cost has doubled to $4 billion dollars. But maybe New Yorkers shouldn’t be surprised. The New York Times reports that the Port Authority, which operates the PATH trains between New York and New Jersey, hired Santiago Calatrava, an architect whose work has frequently lead to cost overruns and claims of defects. The problems in lower Manhattan are not all Mr. Calatrava’s fault. Auditors described the Port Authority as “a challenged and dysfunctional organization.” (A separate report in the New York Times notes that a former PATH executive may have walked away with the rights to the words “World Trade Center” for $10. The company he subsequently founded, The World Trade Center Association, charges millions for the use of the name.) One problem with Mr. Calatrava’s design for the station is that he insisted that all the mechanical elements of the station be located in other buildings. Further, the Port Authority might want to examine those plans carefully. In the design for a museum in Valencia, Spain, Mr. Calatrava forgot to provide for handicap access or fire escapes. That project, according to the Times tripled in cost as it was built. Read the court decision
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    UK Construction Defect Suit Lost over One Word

    October 16, 2013 —
    In the UK, be careful what you tell your insurer; the Court of Appeal has upheld the legality of basis clauses. As Paul Lewis and Janetta Gibbs of Herbert Smith Freehills LLP explain, “a basis clause is a provision set out in the proposal form or in the insurance contract itself, to the effect that all or any of the answers to the questions in the proposal shall form the basis of the contract of insurance.” The catch, as they point out, is that “should any of those answers — whether material to the risk or not — prove to be untrue, the insurer may repudiate the policy and treat itself as never having been on risk.” There is a move in the UK to abolish the use of basis clauses in business insurance, but currently they are still legal. This came up in a construction defect case covering latent defects in a public housing project. The contract between the owner, Genesis Housing Association Limited, and the contractor, Time and Tide (Bedford) Ltd, required TT Bedford to indemnify Genesis if it became insolvent. In the contract with the insurer, representatives of Bedford and Genesis referred to the contractor as “TT Construction.” While the courts concluded that Bedford and Genesis were not guilty of misrepresentation or intent to defraud, they did note that neither party thought the firm’s name was “TT Construction.” Therefore, over the failure to name the builder correctly, the court found that the insurance contract was invalid. Read the court decision
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    President Trump Repeals Contractor “Blacklisting” Rule

    March 29, 2017 —
    Former President Obama’s so-called “Blacklisting” rule was short-lived. On Monday, President Trump signed a joint resolution eliminating the rule, which had required bidders on federal projects with a value in excess of $500K to report state and federal labor and safety violations within the past three years. The Blacklisting rule, also known as the Fair Pay and Safe Workplaces Executive Order 13673, only went into effect in October 2016. Read the court decision
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    Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
    Mr. Murai may be contacted at gmurai@wendel.com

    Is Performance Bond Liable for Delay Damages?

    October 20, 2016 —
    There is an argument that a performance bond is not liable for delay damages UNLESS the bond specifically allows for the recovery of such damages. Keep this in mind when requiring a performance bond so that the bond covers the associated risks (and damages) you contemplate when requiring the bond. This argument is supported by the Florida Supreme Court’s 1992 decision in American Home Assur. Co. v. Larkin General Hosp., Ltd., 593 So.2d 195, 198 (Fla. 1992):
    The language in the performance bond, construed together with the purpose of the bond, clearly explains that the performance bond merely guaranteed the completion of the construction contract and nothing more. Upon default, the terms of the performance bond required American [performance bond surety] to step in and either complete construction or pay Larkin [obligee] the reasonable costs of completion. Because the terms of the performance bond control the liability of the surety, American’s liability will not be extended beyond the terms of the performance bond. Therefore, American cannot be held liable for delay damages.
    However, the Eleventh Circuit in National Fire Ins. Co. of Hartford v. Fortune Const. Co., 320 F.3d 1260(11th Cir. 2003), also analyzing an issue relating to the recoverability of delay-type damages against a performance bond, did not narrowly interpret the Florida Supreme Court’s decision in Larkin General Hospital. Read the court decision
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    Reprinted courtesy of David Adelstein, Katz, Barron, Squitero, Faust, Friedberg, English & Allen, P.A.
    Mr. Adelstein may be contacted at dma@katzbarron.com

    Constructive Change Directives / Directed Changes

    June 06, 2018 —
    rime contracts typically contain a constructive change directive clause. A constructive change directive also goes by the acronym CCD (and for purposes of this article, such changes will be referred to as a CCD), however it can also be known as a Work Change Directive, Interim Directed Change, or Directed Change, depending on the type of contract beign utilized. An owner can order a CCD, versus issuing the contractor a formalized change order, as a mechanism to direct the prime contractor to perform work if there is a dispute as to contract amount, time, or scope. Just because an owner issues a CCD does not mean the owner is conceding that it owes the contractor a change order. Rather, the owner is ordering the CCD as a mechanism to keep the project moving forward notwithstanding a disagreement with the contractor as to the price or time impact. Standard form construction agreements such as the AIA, EJCDC, or ConsensusDocs, will have a standard provision dealing with change directives where the owner can order the contractor to proceed with work in the absence of a change order. In the federal government context, most construction contracts will contain a changes clause that authorizes the government to formally direct changes; and, there is authority for contractors to equitably pursue a constructive change based on certain directives or instructions issued by the government. Naturally, from the contractor’s perspective, this CCD provision is an important consideration as it could likely require the contractor to finance a change to the owner’s project, particularly if there is a scope dispute where the owner does not believe the contractor is entitled to any change order. Read the court decision
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    Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
    Mr. Adelstein may be contacted at dadelstein@gmail.com

    Home Prices Expected to Increase All Over the U.S.

    July 09, 2014 —
    According to a survey of the National Association of Realtors (as quoted by the Housing Wire), home prices are expected “to increase in all states and the District of Columbia over the next 12 months, with most of the heavy growth in Florida, Texas, and California, among other states.” The highest expected price growth was “in states with low inventory levels, strong cash sales, and strong growth sectors (e.g., technology, oil).” Read the court decision
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    Assignment of Insured's Policy Ineffective

    April 06, 2016 —
    An assignment of policy rights made before the policy was issued was ineffective. W. Alliance Bank v. Nat'l Union Fire Ins. Co., 2016 U.S. Dist. LEXIS 19936 (N.D. Cal. Feb. 18, 2016). The bank issued a loan to Sorrento Networks, Inc. in 2011. As collateral, Sorrento gave the bank a continuing security interest in all of Sorrento's personal property, including its inventory, commercial tort claims and insurance proceeds. The loan agreement authorized the back to act on Sorrento's behalf in collecting any money owed to Sorrento and prosecuting any claims that Sorrento might have. Read the court decision
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    Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
    Mr. Eyerly may be contacted at te@hawaiilawyer.com