Sewage Flowing in London’s River Thames Draws Green Bond Demand
April 04, 2022 —
Ronan Martin - BloombergThe green bond market just got one of its biggest challenges yet -- cleaning up London’s River Thames.
A sale of the notes aims to help to fund upgrades to the city’s Victorian-era sewers, as population growth in London heaps increasing pressure on them. Designed to serve about 4 million people, the sewers instead handle waste from more than double that number, leading to multiple sewage overflows every year.
Bazalgette Finance Plc sold 300 million pounds ($400 million) of green bonds Thursday to fund construction of a 25-kilometer tunnel to prevent millions of tonnes of sewage overflowing into the river. The 12-year notes were priced at 130 basis points above U.K. gilts, drawing investor orders of more than four times the amount on offer, according to a person with knowledge of the sale, who asked not to be named.
The bond proceeds will be given to Bazalgette Tunnel Ltd for the ongoing construction of the Thames Tideway Tunnel, which is expected to be completed in 2023, according to the Tideway website. The 66 meter-deep tunnel is more than seven meters wide and will cost an estimated 4.2 billion pounds ($5.6 billion) at completion, according to an investor presentation seen by Bloomberg News.
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Ronan Martin, Bloomberg
ASCE Statement on The Partial Building Collapse in Surfside, Florida
June 28, 2021 —
Tom Smith - American Society of Civil EngineersThe following is a statement by Tom Smith, Executive Director, American Society of Civil Engineers (ASCE):
WASHINGTON, DC. – We are saddened by the tragic news coming out of Surfside, Florida, regarding the fatal partial building collapse of a condominium early Thursday morning. Safety is the top priority of every civil engineer, and protecting public health and safety is core to our mission at ASCE. We share our deepest condolences to all of those affected by this tragedy.
Collapses like these are fortunately highly unusual and extremely rare. However, it is imperative to identify the root cause of failures when they do occur, and to ensure that proactive steps are taken to prevent future incidents. ASCE fully supports the need for continued engineering assessments to pinpoint the cause of the collapse, and we stand ready to support official investigations with technical expertise and advice available through our 150,000 civil engineer members worldwide.
While rescue and recovery operations are underway, it is important that we support our first responders who are conducting essential rescue efforts and are operating as quickly as possible. We will also continue to keep those who have been injured and those who have not yet been accounted for in our hearts and thoughts, and we share our heartfelt sympathies to all of those affected.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Builders Beware: A New Class Of Defendants In Asbestos Lawsuits
January 06, 2016 —
David J. Byassee, Bremer Whyte Brown & O’Meara, LLP & Timothy A. Gravitt, Ulich, Ganion, Balmuth, Fisher & Feld, LLPResidential, commercial and industrial builders face new and potentially significant liability for construction activities that took place in the 1960s, 1970s and 1980s: personal injury lawsuits filed by construction workers from exposure to building products containing asbestos. After emptying the pockets of manufacturers and suppliers of raw asbestos and asbestos-containing products over the last 20 years, plaintiff lawyers are beginning to set their sights on a new class of defendants in asbestos litigation: residential, commercial and industrial builders who unknowingly allowed asbestos-containing products to be incorporated into their projects.
The men and women who have been involved in the building industry for 40 years or more may remember the subject of asbestos surfacing in the 1970s with the enactment of the Occupational Safety and Health Act (OSHA). At that point builders were just beginning to learn that asbestos was a component of some building materials, and the potential risk of cancer presented by asbestos was being debated in scientific and medical journals. Although the use of building materials containing asbestos was mostly phased out by the 1980s, the health risks associated with exposure to asbestos continue – and in fact increase – for the duration of an exposed person’s life.
Today it is generally accepted that exposure to asbestos increases the risk of developing asbestosis and certain kinds of cancer, including mesothelioma. Cancers associated with exposure to asbestos are typically diagnosed at least 15 years (and sometimes up to 50 years) after a person’s exposure to asbestos, meaning that exposures in the 1960s, 1970s and 1980s might not manifest in disease until now. The class of persons who may be at risk for asbestos-related disease is long and varied: insulators, HVAC installers, pipe fitters, plumbers, drywall installers, painters, plasterers and roofers, to name a few. Long-term exposure history, coupled with the theory that “each and every” exposure during a lifetime is a substantial factor increasing the risk of developing cancer, presents potential liability to builders acting as general contractors and/or property owners, as well as the usual defendants in asbestos lawsuits, which include manufacturers, suppliers, and users of asbestos-containing materials.
In recent years, plaintiff lawyers have set their sights on builders as the financial wherewithal of traditional asbestos defendants has dried up. Plaintiff lawyers have created a new theory of liability which they use to rope builders in as defendants in asbestos lawsuits: that the builder knew – or should have known – that a deadly ingredient (asbestos) was contained in the building materials used in construction, and the builder failed to warn its subcontractors or anyone else on the project that exposure to asbestos could harm them.
Builders have unique legal defenses to claims brought by employees of subcontractors who have developed asbestos-related disease. For example, the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689, held that an injured employee of a subcontractor cannot maintain a claim against the hirer (builder) for the employee’s injury absent affirmative contribution on the part of the builder to the injury. Thus the first line of defense in an asbestos exposure case is to argue that the developer had no direct role in the plaintiff’s exposure to asbestos and therefore the Privette doctrine precludes the plaintiff from suing the builder. But resourceful plaintiff lawyers are coming up with arguments to get around this so-called Privette defense in asbestos lawsuits by claiming that builders’ activities such as cleanup of asbestos-containing materials, or assertion of control over the work of the subcontractor, directly contributed to the plaintiff’s injuries and therefore provide exceptions to Privette and allow the claim to proceed.
A practical question is raised in asbestos cases: How is a plaintiff able to prove, decades after working on a project, what building materials contained asbestos, or that a builder knew or should have known in the 1960s, 1970s or 1980s that asbestos-containing materials were used on their project, or that asbestos presented a health risk? To answer the first part of the question (what building materials contained asbestos), plaintiff’s experts will say that during the relevant timeframe asbestos was a common ingredient in many building products, e.g., drywall joint compounds, stucco/plaster/gun cement, acoustic ceiling products, cement pipe, insulation, roofing mastic, caulk and plumber’s putty; this can be further proven by reference to product manufacturers’ disclosures made pursuant to the Asbestos Information Act. Also, through the decades of asbestos litigation against product manufacturers and suppliers, resourceful plaintiff lawyers have developed vast banks of data and documentation identifying the manufacturers of asbestos-containing building products, the end-users of those products, and the projects where those products were supplied. With this bank of knowledge, all that is necessary for them to make the claim against a builder is to have the plaintiff identify a construction project where he or she remembers working during the relevant timeframe. Once that identification is made, it is a simple matter for the lawyers to dig and find out who developed the building/project, who then becomes a defendant in an asbestos lawsuit.
The answer to the second part of the question (whether the developer knew or should have known that the products brought to their projects contained asbestos) requires a detailed investigation into the dates at which the products were supplied to the project, the manufacturer of the product, and what information was available in the market place about the material content of the particular product.
The answer to the third part of the question (knowledge that asbestos presented a health risk) is trickier. One of the first standards set by OSHA in 1972 related to permissible levels of exposure to asbestos. It is a common tactic for plaintiff lawyers to argue that the existence of OSHA standards created a presumption of knowledge in the building industry about the dangers of asbestos. But what about pre-OSHA knowledge? Here plaintiff lawyers will argue that well before OSHA, going back as far as 1936, exposure to asbestos was regulated in California under General Industry Safety Orders relating to Dusts, Fumes, Mists, Vapors and Gases. They argue that the General Industry Safety Orders put builders “on notice” of the dangers of asbestos by virtue of being regulated by the State of California, and, by extension, builders had “knowledge” of the health risks associated with asbestos.
There are defenses that skilled defense counsel can utilize to defeat asbestos claims, assuming the Privette defense is not available. The first is to thoroughly investigate and evaluate all of the plaintiff’s potential exposures to asbestos throughout his entire lifetime, and identify those sources that likely were the major contributors to his disease. Next, counsel has to properly investigate the project at which the plaintiff is alleged to have been exposed to asbestos, identify all of the possible sources of exposure, i.e., the products that were used or might have been used at the project, and finally how the plaintiff was allegedly exposed at the project. As most builders do not maintain records of what products were used in their projects dating back 15 years or more, let alone the identities of the trades that worked on the projects, knowledgeable defense counsel can be a valuable partner in unearthing the brands of products typically in use in the locale where the construction took place, and identifying the manufacturers of those products. Defense counsel must analyze the frequency, duration, proximity and intensity of the exposure, as well as the type of asbestos the plaintiff was allegedly exposed to (not all asbestos is created equal – some types are more toxic than others). This will involve careful evaluation of the levels of exposure created by the alleged activity of the builder, to determine, through experts and a thorough understanding of the scientific and medical studies on the subject, whether the levels of asbestos exposure created by the activity could be considered a “substantial factor” in contributing to the risk of the plaintiff’s development of his asbestos-related disease.
Asbestos lawsuits present a significant risk to the unsuspecting and unprepared builder. Money damages available to a plaintiff are substantial. Medical expenses for treatment of asbestos-related disease typically run into the hundreds of thousands of dollars, lost income (including retirement benefits) can also be significant, and jury awards for pain, suffering and emotional distress can be staggering - often millions of dollars. In some cases punitive damages are even awarded.
The bottom line is that a builder runs a big risk if it treats an asbestos claim like any other claim. The level of analysis and investigation to properly defend against the claim requires prompt action by knowledgeable counsel, and frequently there is no insurance coverage.
David J. Byassee is an attorney with the firm
Bremer Whyte Brown & O’Meara, LLP, and is a litigator who has devoted nearly a decade to representation of real estate developers and builders. He can be reached at: dbyassee@bremerwhyte.com.
Timothy A. Gravitt is an attorney with the firm
Ulich, Ganion, Balmuth, Fisher & Feld, LLP who is devoted to defending real estate developers and builders in a variety of litigation. He can be reached at: tgravitt@ulichlaw.com.
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"Ongoing Storm" Rules for the Northeast (Connecticut, Massachusetts, New Jersey, New York & Rhode Island)
February 22, 2021 —
Angeline Ioannou, Kenneth Walton, Colin Hackett, Gregory Katz & Lauren Motola-Davis - Lewis BrisboisThe winter storm that recently brought several feet of snow to the Northeast signaled that we are, indeed, in the middle of winter. Moreover, our nation’s favorite groundhog, Punxsutawney Phil, saw his shadow on Groundhog Day this year, indicating that winter will be with us for six more weeks. As we move through the remainder of this snowy season, it is important for businesses to understand their legal obligations concerning snow removal and the defenses that are available to them in the event that an injury occurs on their premises. This alert summarizes the ongoing storm rules in Connecticut, Massachusetts, New Jersey, New York, and Rhode Island, and analyzes property owners’ snow removal responsibilities as well as related premises liability issues under these states’ laws.
Connecticut
It is well settled in Connecticut that, in the absence of unusual circumstances, in fulfilling their duty to invitees on their property, property owners may wait a reasonable time after the conclusion of a storm to perform ice and snow removal from outside walkways and steps. Kraus v. Newton, 211 Conn. 191, 197-198 (1989). A property owner’s duty to perform reasonable snow and ice removal of outside walkways does not arise until after a reasonable period of time has passed after a storm ends. Umsteadt v. G.R. Realty, 123 Conn. App. 73, 83 (2010). The ongoing storm doctrine does not apply, however, if the defective condition arises from preexisting ice or snow, and not from the ongoing storm. Whether the alleged defective condition was caused by preexisting ice or snow and whether a storm has concluded are both questions of fact that may be decided by a jury. Kraus at 197-198.
Reprinted courtesy of
Angeline Ioannou, Lewis Brisbois,
Kenneth Walton, Lewis Brisbois,
Colin Hackett, Lewis Brisbois,
Gregory Katz, Lewis Brisbois and
Lauren Motola-Davis, Lewis Brisbois
Ms. Ioannou may be contacted at Angeline.Ioannou@lewisbrisbois.com
Mr. Walton may be contacted at Ken.Walton@lewisbrisbois.com
Mr. Hackett may be contacted at Colin.Hackett@lewisbrisbois.com
Mr. Katz may be contacted at Greg.Katz@lewisbrisbois.com
Ms. Motola-Davis may be contacted at Lauren.MotolaDavis@lewisbrisbois.com
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California Case That Reads Like Russian Novel Results in Less Than Satisfying Result for Both Project Owner and Contractors
May 01, 2019 —
Garret Murai - California Construction Law BlogSometimes you can see a train wreck coming a mile away. The next case, Design Built Systems v. Sorokine, Court of Appeal for the First District, Case Nos. A151264 and A152059 (February 26, 2019), is one of those cases. It also happens to read like a Tolstoy novel.
The Beginning of the Train Wreck
Alexei Sorokine and Elena Koudriavtseva, husband and wife, owned a single family home in San Rafael, California. Sorokine had acquired the house prior to his marriage to Koudriavtseva. In 2010, he traveled to Russia and, for reasons unexplained, has not been able to return.
Following a landslide on the property in 2006, Sorokine entered into a construction contract with Design Built Systems to design and build a series of retaining walls. DBS was also retained to remedy a stop work notice issued by the City of San Rafael following work performed by others.
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Garret Murai, Wendel RosenMr. Murai may be contacted at
gmurai@wendel.com
Construction Contract Clauses Only a Grinch Would Love – Part 4
November 30, 2016 —
Garret Murai – California Construction Law BlogScope, time and cost provisions may be the most important clauses in your construction contract but they’re not the only ones which can impact your bottom line. The fourth and final part in a multi-part series, here are some other important construction contract clauses that can put a damper on your holidays.
Provision: Warranty Provisions
- Typical Provision: “Subcontractor warrants to Contractor that all materials and equipment furnished shall be new unless otherwise specified and that all Work performed shall be performed in a good and workmanlike manner, of good quality and free from defects, and in conformance with industry standards, manufacturer’s recommendations and the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved, shall be considered defective. Subcontractor agrees to promptly make good any and all defects due to faulty workmanship, materials and/or equipment which may appear within the Contract Documents, and if no such period is stipulated in the Contract, then for a period of one year from the date of acceptance by the Owner. Nothing herein shall shorten or limit any applicable periods of limitations including, but not limited to, those set forth in Civil Code, Part 2, Title 2, Chapter 3.”
- What it Means: Warranty periods are subject to the agreement of the parties. However, warranties are different than limitations periods, such as California’s 4 year statute of repose for patent defects and 10 year statute of repose for latent defects (note: a statute of repose is different than a statute of limitation. A statute of repose sets a deadline based on an event. So, for example, under the 10 year statute of repose for latent defects a claimant must bring a latent defect claim within 10 years following substantial completion even if the latent defect wasn’t discovered until 10 years and 1 month following substantial completion. A statute of limitation, in contrast, sets a deadline based on the occurrence of an injury or damage. So, for example, California has a 2 year statute of limitation for personal injuries, which sets a deadline of 2 years from the date of injury to bring a personal injury claim). Warranty periods are also different from limitations periods because most warranties require work to be corrected at no cost, and because many contracts include attorney’s fee provisions, breach of a warranty can give rise to claim for attorney’s fees as well.
- What You Can Do: Lower-tiered parties should examine warranty provisions to see if they are reasonable, and if not reasonable, should seek to either eliminate or limit those provisions, such as by reducing the warranty period or providing different warranty periods for different components of work, etc.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Colorado Defective Construction is Not Considered "Property Damage"
September 12, 2022 —
Saxe Doernberger & Vita, P.C.In the July 5, 2022, case of Indian Harbor Ins. Co. v. Houston Casualty Co., the United States District Court for Colorado addressed the issue of whether damage to defectively installed balconies is considered “property damage” under Colorado law, requiring payment by a commercial general liability policy.
Facts of the Case
The case stems from a construction project where a subcontractor improperly installed balconies on an apartment complex. The owner of the project secured commercial general liability (CGL) coverage through an OCIP insured by Houston Casualty Company (HHC). The OCIP insured the general contractor and subcontractors. The general contractor also purchased a subcontractor default insurance policy insured by Indian Harbor.
All parties agreed that the subcontractor improperly installed portions of various balconies, including flashing, water-proof sealing, and water-resistant barriers, among other defects with the installation process. The parties also agreed that other portions of the balconies were properly installed. However, in order to repair the defects in the installations, every bit of each balcony had to be torn off and re-constructed.
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Saxe Doernberger & Vita, P.C.
Get Creative to Solve Your Construction Company's Staffing Challenges
February 25, 2024 —
Kit Dickinson - Construction ExecutiveConstruction projects are on the rise due to a generational investment in infrastructure spending. The Infrastructure Investment and Jobs Act passed by Congress in August 2021 includes around $550 billion in new federal investment in America’s roads and bridges, water infrastructure and more to be allocated over the next five years.
Because of the influx of federal funds for infrastructure, construction firms that previously focused on local, private sector clients are incentivized to pursue public projects in other states and regions. There are a couple of bumps in the road, however. Payroll becomes more complex when you’re paying across multiple jurisdictions and at different pay rates, and reporting requirements for government work make managing projects and controlling costs trickier. Add to this the changes in the Davis-Bacon Act prevailing wage rules which went into effect on October 23, 2023. To capture this business and make it worthwhile, construction professionals need technology built specifically for the industry.
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Kit Dickinson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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