The Importance of Retrofitting Existing Construction to Meet Sustainability Standards
December 18, 2022 —
Chris Gray - Construction ExecutiveJust about every industry is looking for ways in which they can go “green,” with varying degrees of success. Historically, the real estate industry has underinvested in the infrastructure, even with government incentives and initiatives, buildings and construction continue to pollute our atmosphere and release excess amounts of carbon into the air.
As it stands, existing buildings are, and will continue to be, a main problem. Right now, the real estate sector is responsible for a whopping 40% of global carbon emissions, along with 70% of the world’s electricity, and while we must continue to prioritize new, sustainable buildings, that does not address the countless buildings that are already standing and producing mass amounts of carbon emissions detrimental to our earth’s environment.
It is predicted that 70% of the existing buildings across the world will still be standing by the year 2050, meaning these outdated, inefficient warehouses and office parks aren’t going anywhere. To address the real estate carbon footprint, the industry needs to use modern technological solutions to combat this massive issue and implement new technology that transforms dated buildings into high-value decarbonized assets.
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Chris Gray, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Design Professional Asserting Copyright Infringement And Contributory Copyright Infringement
May 01, 2019 —
David Adelstein - Florida Construction Legal UpdatesStandard form construction contracts between an owner and design profesional will address copyright protection, as well as other contractual protections, associated with a design professional’s “instruments of service.” An owner negotiating an agreement with a design professional should consider alternative language that broadens the scope of the contractual license given to it with respect to the use of the design. Regardless, a design professional’s copyright infringement claim is still a challenging claim to ultimately prevail on. While a design professional may likely survive the motion to dismiss stage in a copyright infringement claim, whether it survives the summary judgment stage is another, more challenging, story.
“To state a claim for copyright infringement a plaintiff [design professional] must assert [and prove the following two prongs]: ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’” Robert Swedroe Architect Planners, A.I.A., P.A. v. J. Milton & Associates, Inc., 2019 WL 1059836, *3 (S.D.Fla. 2019) quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).
In the first prong, the design professional must establish it complied with statutory formalities to own a valid copyright. Id.
In the second prong, the design professional must establish that the defendant copied constituent elements that are original. Id.
There is also a claim known as contributory copyright infringement.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dadelstein@gmail.com
Contractual Warranty Agreements May Preclude Future Tort Recovery
January 11, 2022 —
Taylor Ostrowski - Colorado Construction Litigation BlogWhen a buyer purchases a product that is later discovered to be defective, the court offers a remedy to make the buyer whole. Such remedies can arise either out of a contract, including express and/or implied warranties, or under common law through a tort theory. However, what happens when a buyer has already received the remedy specified in the contractual warranty, only to discover the product manufacturer misrepresented the quality of its product by failing to disclose a defect? Can the buyer subsequently recover for the same product under a tort theory of recovery? The Colorado Court of Appeals analyzed such questions in its December 2021 decision in Dream Finders Homes, LLC v. Weyerhaeuser NR Co., 2021 COA 143.
In Dream Finders, the court examines the rights of sophisticated buyers who purchased defective products and received a warranty from the product manufacturer with purchase. The court specifically determines whether such buyers may recover under the tort theory product misrepresentation and failure to disclose when the buyers have already received the remedy specified and the warranty expressly excludes the type of damage the buyer now seeks.
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Taylor Ostrowski, Higgins, Hopkins, McLain & Roswell, LLCMs. Ostrowski may be contacted at
ostrowski@hhmrlaw.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
No Coverage Under Ensuing Loss Provision
September 09, 2011 —
Tred R. Eyerly - Insurance Law HawaiiThe cost of removing and replacing cracked flanges to prevent future leakage was not covered as an ensuing loss under a builder’s risk policy in RK Mechanical, Inc. v. Travelers Prop. Casualty Co. of Am., 2011 U.S. Dist. LEXIS 83958 (D. Colo. Aug. 1, 2011).
The insured, RK Mechanical Inc., was a subcontractor hired to install plumbing for a residential construction project. RK was an additional insured on the general contractor’s policy with Travelers. RK installed approximately 170 CPVC flanges on the project. Subsequently, two of the flanges cracked, allowing water to overflow and causing water damage to the project. Travelers was notified of the flange failure and resulting water damage.
RK subsequently removed and replaced the two cracked flanges and began water remediation. Travelers paid for the cost of the water damage due to the cracked flanges.
RK then examined all of the flanges installed in the project and discovered many were cracked and/or showed signs of potential failure. RK removed and replaced the cracked flanges. RK tendered a claim and demand for indemnity to Travelers for these repair costs. Travelers denied the claim. RK then sued for breach of contract and declaratory relief. The parties filed cross motions for summary judgment.
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com
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Lump Sum Subcontract? Perhaps Not.
August 20, 2019 —
David Adelstein - Florida Construction Legal UpdatesLump sum subcontract? Perhaps not due to a recent ruling where the trial court said “No!” based on the language in the subcontract and contract documents generally incorporated into the subcontract.
This is a ruling on an interpretation of a subcontract and contract documents incorporated into the subcontract that I do not agree with and struggle to fully comprehend. The issue was whether the subcontract amount was a lump sum or subject to an audit, adjustment, and definitization based on actual costs incurred. Of course, the subcontractor (or any person in any business) is not just interested in recouping actual costs, but there needs to be a margin to cover profit and home office overhead that does not get factored into field general conditions.
In United States v. Travelers Casualty and Surety Company, 2018 WL 6571234 (M.D.Fla. 2018), a prime contractor was hired to perform work on a federal project. During the work, the Government issued the prime contractor a Modification that had a not-to-exceed value and required the prime contractor to track its costs for this Modification separate from other contract costs. In other words, based on this Modification, the prime contractor was paid its costs up to a maximum amount and the prime contractor would separately cost-code and track the costs for this work differently than other work it was performing under the prime contract.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Quick Note: Aim to Avoid a Stay to your Miller Act Payment Bond Claim
February 23, 2017 —
David Adelstein – Florida Construction Legal UpdatesStrategy is important. This is especially true if you are trying to avoid arbitration. In a recent federal district court case, a subcontractor sued the prime contractor and the Miller Act payment bond surety. The subcontractor, however, had an arbitration provision in its subcontract with the prime contractor. The prime contractor moved to compel arbitration pursuant to the subcontract and moved to stay the subcontractor’s Miller Act payment bond claim. The last thing, and I mean the last thing, the subcontractor wanted to do was to stay its claim against the Miller Act payment bond. However, the district court compelled the subcontractor’s claim against the prime contractor to arbitration and stayed the subcontractor’s Miller Act payment bond claim pending the outcome of the arbitration. See U.S. v. International Fidelity Ins. Co., 2017 WL 495614 (S.D.Al. 2017). This is not what the subcontractor wanted.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Need to Cover Yourself for “Crisis” Changes on a Job Site? Try These Tips (guest post)
July 02, 2018 —
Melissa Dewey Brumback – Construction Law in North CarolinaToday, we welcome back friend of the blog Christopher G. Hill.
Chris is a LEED AP, a Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC. Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals.
As construction professionals we’ve all been there. Something happens on a job site that requires immediate attention and possibly a changed sequence of work or possibly a change to a subcontractor’s scope. It could be a buried power line that Miss Utility failed to mark properly or an owner that wants a different HVAC configuration at the last minute. It could also simply be that it rained too much, and work had to slow down.
The above examples are instances of items that are beyond the control of the general contractor or the subcontractors and are the type that require shifts in work schedules and changes in scope that must be dealt with on the fly and require quick decisions and immediate action if the project is to meet any time of completion reasonably close to that which is listed in the contract documents. It can often seem that there is no time to meet the written change order provisions of any well drafted construction contract.
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Melissa Dewey Brumback, Ragsdale Liggett PLLCMs. Brumback may be contacted at
mbrumback@rl-law.com
