The Peak of Hurricane Season Is Here: How to Manage Risks Before They Manage You
September 21, 2020 —
Vincent E. Morgan - Construction ExecutiveThe Atlantic hurricane season runs from June 1 to Nov. 30, but it peaks sharply during August, September and October. The latest forecasts predict this will be one of the most active seasons in history, in terms of frequency and severity, though it is always important to remember that even a single hurricane or tropical storm making landfall can still be a devastating event.
Hurricanes pose unique risks to the construction industry ranging from project and labor force disruptions to concerns about the availability and price of construction materials. This is even more true this year, which requires merging hurricane preparedness and response plans with the realities of COVID-19. Because hurricanes cannot be avoided, preparing for them is the only way to manage these risks. Ensuring the personal safety and wellbeing of affected individuals is the first priority. After that, here are some key issues, and suggestions for handling them, that may help guide construction companies through the storm.
SITE PROTECTION
Construction contracts often place responsibility for site protection on contractors. Where those duties exist, failing to properly carry them out can lead to enormous losses that then turn into liability claims. This could be anything from removing materials that can become projectiles, covering exposed ventilation shafts, and sealing electrical conduits to ensuring that key equipment such as generators and pumps can remain functional in a storm. One way to approach it is to imagine sustained 100-mph winds and relentless water, and then make sure preparedness efforts are likely to survive that kind of test. This is not the time for guessing. It is far better to go through a rigorous analytical process now than in a courtroom years later.
Reprinted courtesy of
Vincent E. Morgan, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Appeals Court Reverses Summary Judgment over Defective Archway Construction
February 10, 2012 —
CDJ STAFFA judge has ruled that a plaintiff can go forward with her suit that she was injured by a defective archway during a birthday party. A three-judge panel of the California Court of Appeals issued this ruling on January 23, 2012, in the case of Trujillo v. Cosio.
Ms. Trujillo attended a birthday party at the home of Maria Cosio and Joel Verduzco. A piñata was hung between a tree and a brick archway. Ms. Trujillo went to get candy that had fallen from the piñata, during which the archway fell on her hand. Subsequent examination of the archway showed that it had not been “properly anchored to the supporting pillars to protect the arch from falling.”
Ms. Cosio and Mr. Verduzco argued that they could not have been aware of the defective nature of the archway’s construction, as it had been built at the request of the prior property owner. The structure was constructed without building permits. Mark Burns, a civil engineer testifying for the plaintiff, said that “a reasonable property owner would have thoroughly tested the archway to ensure it was capable of withstanding such horizontal forces before allowing children to enter into the area.” Mr. Burns noted that twenty rope pulls would have been sufficient to demonstrate the structure’s instability.
The trial court rejected Mr. Burn’s statements, finding that the respondents did not have any knowledge of the defect and that a visual inspection should have sufficed. The court noted that this a triable issue, whether visual inspection suffices, or whether the property owners should have done as Mr. Burns suggested and yank a rope twenty times. The court noted that “although a jury may ultimately disagree with Burn’s opinion, it was supported by sufficient foundation and was not speculative.”
The opinion was written by Judge Flier, with Judges Rubin and Grimes concurring.
Read the court’s decison…
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Locals Concerns over Taylor Swift’s Seawall Misdirected
January 13, 2014 —
CDJ STAFFHomeowners in Westerly, Rhode Island have been concerned about alterations made to a seawall below Taylor Swift’s seaside home in Rhode Island, particularly in that some large boulders have been moved to the shore. But officials with Rhode Island’s Coastal Resource Management Council have assured residents that the work is being done at their request, according to the Westerly Sun.
In addition to moving boulders, the project repairs an existing seawall which was damaged by Hurricane Sandy. The cost is estimated to be $2 million.
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Arizona Court of Appeals Upholds Judgment on behalf of Homeowners against Del Webb Communities for Homes Riddled with Construction Defects
February 26, 2015 —
Law Offices of Kasdan Weber Turner LLPARIZONA COURT OF APPEALS UPHOLDS LOWER COURT DECISION APPROVING $13,703,039 JUDGMENT ON BEHALF OF 460 SUN CITY GRAND HOMEOWNERS AGAINST DEL WEBB COMMUNITIES, INC., A SUBSIDIARY OF PULTEGROUP, INC., FOR HOMES RIDDLED WITH CONSTRUCTION DEFECTS
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In a separate case, an Arizona Superior Court awards $10,619,640 to another 279 Sun City Grand homeowners who sued Del Webb over construction defects, which Del Webb has appealed--
PHOENIX, Arizona – The Arizona Court of Appeals, Division One, [on Tuesday] issued a unanimous ruling upholding a lower court decision awarding $13,703,039 to 460 Sun City Grand homeowners who sued developer Del Webb Communities, Inc., a subsidiary of PulteGroup, Inc., for numerous construction defects that severely damaged the plaintiffs’ homes. Sun City Grand is an age-restricted community located in Surprise.
In a separate case, an Arizona Superior Court awarded $10,619,640 to another group of 279 Sun City Grand homeowners for multiple construction defects in their homes.
Stephen Weber, the managing partner in the Phoenix office of Kasdan Weber Turner LLP, which represents the homeowners, said that the case is based on construction defects that damaged the plaintiffs’ homes and took several years to resolve. The defects include defective windows, poorly installed stucco, expansive soil conditions that resulted in cracking of drywall, and deteriorating concrete foundation systems, among other problems.
“Del Webb placed an arbitration clause in the sales contracts and the homeowners honored it. The binding arbitration that includes the owners of 460 homes in Sun City Grand was completed in late 2011 when the arbitration panel unanimously awarded the homeowners $13,703,039. Del Webb then challenged the award in Superior Court and the Superior Court confirmed the award in full,” Weber explained. “Del Webb did not like the Superior Court ruling either and challenged it in the Court of Appeals. And now three justices of the Arizona Court of Appeals have unanimously affirmed the Superior Court order and the arbitration award stands. Now they will have the funds to repair their homes, restore their value, and live in comfort,” Weber said.
The $13,703,309 award includes amounts for home repairs, attorney fees, expert fees, court costs and pre-judgment interest. An additional $1,401,236 in post-judgment interest also accrued while the case was on appeal. The other construction defect case that awarded $10,619,640 to homeowners was not covered by binding arbitration.
Del Webb has also appealed that case which will now go through the appeals process. That could take two to three years and again the homeowners will have to wait for the final judgment, Weber noted.
Ken Kasdan, senior and managing partner of the Kasdan Weber Turner firm and one of the nation’s leading experts on construction defect litigation, said the defects are egregious. “The multiple defects rob them of pride of ownership,” he said. “A home is something that a homeowner wants to be proud of. Unfortunately, defective workmanship and poor construction have caused damage to the homes. Now these homes can be repaired and the homeowners will no longer have to deal with defective windows and cracked slabs. Developers need to understand that arbitration awards are final and binding,” Kasdan noted.
The Kasdan Weber Turner law firm has offices in Phoenix, Arizona and in Irvine, California and Walnut Creek, California. The firm represents property owners in major construction defect litigation. For more information on the firm, visit www.kasdancdlaw.com. Stephen Weber may be contacted at (602) 224-7800.
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Anti-Assignment Provision Unenforceable in Kentucky
December 20, 2012 —
TRED EYERLY, INSURANCE LAW HAWAIIOn a certified question from the Federal District Court, the Supreme Court of Kentucky decided that an anti-assignment provision in a policy is unenforceable.
Wehr Constructors v. Paducah Div. Assur. Co. of Am., 2012 Ky. LEXIS 183 (Ky. Oct. 25, 2012).
Before building an addition to its hospital, Murray Calloway County Hospital purchased a builder's risk policy from Assurance Company of America.The policy provided, "Your rights and duties under this policy may not be transferred without Assurance's written consent . . . ." The Hospital contracted with Wehr Constructors to install concrete subsurfaces and vinyl floors in order to expand the hospital. After installation, a portion of the floors and subsurface work was damaged. The Hospital submitted a claim to Assurance for $75,000, but the claim was denied.
Wehr sued the Hospital to recover money for its work on the construction project. In settling the case, the Hospital assigned to Wehr any claim or rights the Hospital had against Assurance.
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Tred R. Eyerly, Insurance Law Hawaii.Mr. Eyerly can be contacted at
te@hawaiilawyer.com
Best Practices After Receiving Notice of a Construction Claim
July 18, 2022 —
Lauren Meadows - Construction ExecutiveBeing served with a lawsuit is typically not a welcomed experience. However, a construction professional that has been proactive in an early investigation of the claim will be better equipped to defend the case. The following best practices should be used by construction professionals as soon as a potential claim becomes evident.
Notify
Immediately after the receipt of a claim or notice of an incident, efforts should be made to notify all essential parties. This includes any potential insurers that may provide coverage for the claim as well as any parties to whom notice may be required or warranted under the project contract and/or scope of work. Some construction contracts contain an insurance clause that requires one party to provide additional insured coverage under its liability policy to another party. Notice should be given to any insurer that potentially provides additional insured coverage as soon as possible. The failure to provide an insurance company with prompt notice of a potential claim could result in the denial of the claim.
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Lauren Meadows, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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HB 20-1046 - Private Retainage Reform - Postponed Indefinitely
May 04, 2020 —
David M. McLain – Colorado Construction LitigationOn Tuesday, February 18th, the Colorado House Business Affairs & Labor Committee voted 10-0 to postpone indefinitely House Bill 1046. If it had been enacted, HB 1046 would have required, for all for all construction contracts of at least $150,000:
- A property owner to make partial payments to the contractor of any amount due under the contract at the end of each calendar month or as soon as practicable after the end of the month;
- A property owner to pay the contractor at least 95% of the value of satisfactorily completed work;
- A property owner to pay the withheld percentage within 60 days after the contract is completed satisfactorily;
- A contractor to pay a subcontractor for work performed under a subcontract within 30 calendar days after receiving payment for the work, not including a withheld percentage not to exceed 5%;
- A subcontractor to pay any supplier, subcontractor, or laborer who provided goods, materials, labor, or equipment to the subcontractor within 30 calendar days after receiving payment under the subcontract; and
- A subcontractor to submit to the contractor a list of the suppliers, sub-subcontractors, and laborers who provided goods, materials, labor, or equipment to the subcontractor for the work.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
Court Orders City to Pay for Sewer Backups
March 31, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to The Courier-Journal, in August of 2009 “raw sewage” backed “up into several houses during a torrential downpour” in Jeffersonville, Indiana. Now, a “Clark County judge has ordered the city of Jeffersonville to pay nearly $100,000 plus 8 percent annual interest for the city's negligence that led to” the incident.
The problems allegedly began after a new lift station and force main, which “previously flowed southward to the Ohio River,” was “re-routed it to Springdale.” The city was eventually “cited by the Indiana Department of Environmental Management for failing to obtain a required local permit for the Springdale upgrade.”
The Courier-Journal reported that Jeffersonville “agreed to take several steps to remedy the problem for residents and satisfy the state, which ultimately considered the issue resolved in October 2012.” Since the upgrade was completed, there have not been any further sewer backups, according to the city’s utility director, Len Ashack, as quoted by The Courier-Journal.
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