English v. RKK- There is Even More to the Story
May 17, 2021 —
Christopher G. Hill - Construction Law MusingsJust when you thought that the litigation between W. C. English and RKK had no more to give (after all, there have been posts with wisdom from this case
here,
here, and
here), it keeps on giving. A
relatively recent opinion from this litigation involved, among other pre-trial motions, motions by English to exclude expert witness testimony. English sought to exclude Defendant CDM Smith, Inc’s expert testimony relating to CDM’s standard of care, the replacement of the bridge deck, English’s failure to fire CDM, and additional contributing factors regarding the spacing of the reinforcing steel. English sought to exclude RKK’s expert opinion regarding English’s owed standard of care vis a vis VDOT.
In evaluating these motions, the Court applied the following standard:
An expert qualified “by knowledge, skill, experience, training, or education, may testify “as to scientific, technical, or other specialized knowledge if it will assist the trier of fact. However, such testimony is only admissible if (1) “the testimony is based upon sufficient facts or data,” (2) “the testimony is the product of reliable principles and methods,” and (3) “the expert has reliably applied the principles and methods to the facts of the case.” [citations excluded here but stated in the opinion]
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
What Every Project Participant Needs to Know About Delay Claims
August 05, 2024 —
Andrew G. Vicknair - The Dispute ResolverA “delay” on a construction project is defined as the stretching out of the time for completion of certain key milestone scopes of work which can impact the completion date of an entire project, due to some circumstances or events that were not reasonably anticipated when the project began. 2 Construction Law ¶ 6.01 (Matthew Bender, 2024). While delays can be caused by any number of events, the most common are defective plans and specifications; design changes; severe weather and other, similar unforeseeable events; unforeseen or differing site conditions; unavailability of materials or labor; labor inefficiencies or stoppages; contractor negligence; and owner influences, including construction changes or outright interference by the owner or its agents. If the project schedule is not recovered following a delay, then the project schedule will likely be extended, resulting in an increase in the contractor’s costs of performance. A contractor that has experienced a delay on a project can take certain actions to pursue recovery of any damages the contractor may have incurred. However, to do so it is important to understand the different types of delays and the methods for establishing the delays.
I. Types of Delays
Delays may be categorized as (1) critical versus non-critical delays, (2) excusable versus non-excusable delays, and (3) compensable versus non-compensable delays. A critical delay is a delay that affects the project completion date and delays the entire project. In essence, a critical delay is one that will extend the critical path of a project. A non-critical delay is a delay that has no effect on the project’s critical path. Courts have recognized that delays to work not on the critical path will generally not delay the completion of a project. G.M. Shupe, Inc. v U.S., 5 Cl. Ct. 662, 728 (1984). Such a non-critical delay may affect the completion of certain activities, but does not affect the completion date of the entire project. In order for a delay to provide the basis for a claim for additional time or money, the delay must impact critical path activities on the project schedule.
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Andrew G. Vicknair, D'Arcy Vicknair, LLCMr. Vicknair may be contacted at
agv@darcyvicknair.com
Buyer Beware: Insurance Agents May Have No Duty to Sell Construction Contractors an Insurance Policy Covering Likely Claims
May 20, 2024 —
David McLain - Higgins, Hopkins, McLain & Roswell, LLCConstruction contractors in the market for insurance coverage have few legal protections if their insurance agent fails to provide insurance that covers likely claims against the contractor. As construction defect lawsuits continue to be a frequent occurrence throughout Colorado, we have seen an increase in the number and complexity of coverage endorsements and exclusions in insurance policies. Some of these exclusions result in insurance policies that are essentially useless to the contractor who purchased them. For example, we have seen dirt work contractors with earth movement exclusions or an earth movement sublimit that turns their $2 million policy into a $100,000 policy. We have seen contractors who primarily build tract homes in subdivisions with tract home exclusions. We have seen general contractors whose policies state that every subcontractor must name the contractor as an additional insured or else the general contactor’s policy converts from a seven-figure policy to a five-figure policy with eroding limits (meaning that the attorney’s fees, expert fees, and litigation costs reduce the coverage limits). The list goes on and leads to an unfortunately high number of contractors who pay significant sums for their insurance policies, finding themselves uninsured or underinsured.
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David McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Hurricane Warning: Florida and Southeastern US Companies – It is Time to Activate Your Hurricane Preparedness Plan and Review Key Insurance Deadlines
November 01, 2022 —
Andrea DeField, Walter J. Andrews, Michael S. Levine, Lawrence J. Bracken II & Cary D. Steklof - Hunton Insurance Recovery BlogHurricane Ian is rapidly approaching the west coast of Florida and is expected to make landfall as a Category 4 hurricane near the Tampa area within the coming days. While the exact track is still being determined, there is a chance the storm may also impact insureds in Georgia and South Carolina. Now is the time to activate your disaster plan and ensure that you have your relevant insurance policies in your possession and that you review them for critical deadlines.
We put together an
alert here with tips to help you and your business mitigate potential storm loss and maximize coverage.
Reprinted courtesy of
Andrea DeField, Hunton Andrews Kurth,
Walter J. Andrews, Hunton Andrews Kurth,
Michael S. Levine, Hunton Andrews Kurth,
Lawrence J. Bracken II, Hunton Andrews Kurth and
Cary D. Steklof, Hunton Andrews Kurth
Ms. DeField may be contacted at adefield@HuntonAK.com
Mr. Andrews may be contacted at wandrews@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Mr. Steklof may be contacted at csteklof@HuntonAK.com
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Hilary Soaks California With Flooding Rain and Snarls Flights
August 21, 2023 —
Brian K. Sullivan & Brian Wingfield - BloombergThe remnants of Tropical Storm Hilary pummeled California with record rains on Monday, disrupting flights but sparing its largest cities from widespread destruction.
Across the region, “the ongoing and historic amount of rainfall is expected to cause life-threatening to locally catastrophic” floods, along with landslides and mudslides, the National Hurricane Center said in a notice early Monday.
The storm, now a post-tropical cyclone, has weakened since coming ashore in California late Sunday. As of early Monday, it had maximum sustained winds of about 35 miles (56 kilometers) per hour and is forecast to move across Nevada and dissipate on Monday.
Hilary, a rare storm to hit the Southwest, could bring a year’s worth of rain to parts of a region famous for its usually balmy weather. Heavy rain and flash flooding have already disrupted transportation, and officials warned residents to stay off the roads. In the last 10 years, flooding from rainfall has caused the most deaths from hurricanes and tropical storms in the US.
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Bloomberg
In Personal Injury Actions, Prejudgment Interest on Costs Not Recoverable
March 12, 2015 —
Elizabeth P. Trent and Leah B. Mason – Haight Brown & Bonesteel LLPIn Bean v. Pacific Coast Elevator Corporation, 2015 DJDAR 2864 (“Bean”), the California Court of Appeal, Fourth Appellate District, held in the published portion of its opinion that courts may not award prejudgment interest on costs in personal injury actions.
In Bean, an employee of defendant Pacific Coast Elevator Corporation (Pacific Coast) drove his vehicle into plaintiff Daniel William Bean’s truck while Bean was stopped at a red light. Bean suffered serious injuries and sued Pacific Coast. A jury found Pacific Coast negligent and awarded Bean $1,271,594.74 in damages. This amount exceeded Bean’s $999,999.00 statutory offer to compromise issued to Pacific Coast prior to trial, which Pacific Coast rejected.
Reprinted courtesy of
Elizabeth P. Trent, Haight Brown & Bonesteel LLP and
Leah B. Mason, Haight Brown & Bonesteel LLP
Ms. Trent may be contacted at etrent@hbblaw.com
Ms. Mason may be contacted at lmason@hbblaw.com
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The Activist Group Suing the Suburbs for Bigger Buildings
December 10, 2015 —
Patrick Clark – BloombergIn a speech last month, Council of Economic Advisers Chairman Jason Furman blamed zoning restrictions—local land-use rules governing things like how tall buildings can grow—for the lack of affordable housing, lost economic productivity, and rising inequality across the U.S.
On Tuesday, a San Francisco activist named Sonja Trauss took Furman's argument to the streets, filing a lawsuit in Contra Costa County (Calif.) to fight what she sees as a lost opportunity to build more housing.
Trauss's organization, the San Francisco Bay Area Renters Federation (yes, SFBARF), is suing the City of Lafayette, a Bay Area suburb of about 25,000, to block plans to build 44 single-family homes on a plot of land once slated for a 315-unit apartment complex. Her argument relies on a three-decade-old California law intended to check local governments’ ability to reduce the density of certain construction projects. Called the Housing Accountability Act, the law has been used successfully by developers of affordable housing who have had their projects blocked, Trauss said, but never by an advocacy group advocating for greater density as a public good.
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Patrick Clark, Bloomberg
NY Appeals Court Ruled Builders not Responsible in Terrorism Cases
January 13, 2014 —
Beverley BevenFlorez-CDJ StaffIn a ruling on a case related to the September 11, 2001 attacks, New York federal appeals court stated that builders and developers could not be held responsible for losses linked to terrorism, Reuters reports. Circuit Judge Rosemary said the building “would have collapsed regardless of any negligence ascribed by plaintiffs' experts.”
Scott Sweeney writing for the Schinnerer's RM Blog explained, “This decision should make it harder for constructors and designers to be held responsible for damages resulting from major acts of terrorism and unforeseeable events that can be nearly impossible to prepare for.”
Read the full story at Reuters...
Read the full story at Schinnerer's RM Blog...
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