Faulty Workmanship Exclusion Does Not Bar Coverage
November 18, 2011 —
Tred R. Eyerly - Insurance Law HawaiiThe court determined that the Faulty Workmanship Exclusion only barred coverage for damages arising from problems with the property under construction itself and not to losses incurred to correct damage from accidents during construction. See 1756 First Associates, LLC v. Continental Casualty Co., 2011 U.S. Dist. LEXIS 117100 (S.D.N.Y. Oct. 3, 2011).
A tower crane collapsed at the construction site, causing damage. First Associates tendered the claim to its insurer, Continental. Continental reimbursed First Associates for certain costs arising from damage to and cleanup of the construction site and building stemming from the crane collapse. Continental refused, however, to reimburse First Associates for costs associated with construction delays resulting from the collapse.
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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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COVID-19 Response: California Occupational Safety and Health Standards Board Implements Sweeping New Regulations to Prevent COVID-19 in the Workplace
December 14, 2020 —
Peter Shapiro, Drake Mirsch & Jade McKenzie - Lewis BrisboisOn November 19, 2020, the California Occupational Safety and Health Standards Board (OSHSB) proposed sweeping and significant new emergency standards to reduce employee exposure to COVID-19. These standards have been accepted by the Office of Administrative Law and are effective as of November 30, 2020. Accordingly, it is critical that employers familiarize themselves with these new requirements and begin to implement these standards as quickly as possible.
The standards include COVID-19 prevention in the workplace, multiple COVID-19 infections and outbreaks in the workplace, “major” COVID-19 outbreaks in the workplace, prevention in employer provided housing, and prevention in employer-provided transportation to and from work. They apply to all California employers and places of employment, except places with one employee who does not have contact with others, employees working from home, or employees in specified health care facilities, services or operations when covered by section 5199.
COVID-19 Prevention Program
Employers are required to establish, implement, and maintain an “effective” written COVID-19 Prevention Program. Under the Program, an employer is responsible for developing a system for communicating about COVID-19, identifying and evaluating COVID-19 hazards, investigating and responding to COVID-19 cases, correcting COVID-19 hazards, providing training and instructions to employees regarding COVID-19, ensuring all employees are physically distanced, providing face coverings, implementing policies regarding personal protective equipment and recordkeeping, ensuring COVID-19 cases are excluded from the workplace, and prohibiting symptomatic employees from returning to work unless certain requirements are met.
Reprinted courtesy of
Peter Shapiro, Lewis Brisbois,
Drake Mirsch, Lewis Brisbois and
Jade McKenzie, Lewis Brisbois
Mr. Shapiro may be contacted at Peter.Shapiro@lewisbrisbois.com
Mr. Mirsch may be contacted at Drake.Mirsch@lewisbrisbois.com
Ms. McKenzie may be contacted at Jade.Mckenzie@lewisbrisbois.com
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Waiver Of Arbitration by Not Submitting Claim to Initial Decision Maker…Really!
August 30, 2021 —
David Adelstein - Florida Construction Legal UpdatesArbitration is a form of dispute resolution that is a creature of contract. If you want an arbitrator to resolve your disputes, you need to ensure there is an arbitration provision in your contract. There are pros and cons to arbitration. One con is you lose the right to appeal. A couple of pros, however, are that your arbitrator(s), which you generally have some control in the selection of, will be versed in the construction industry and it can be a more efficient forum to resolve disputes in the times of COVID. Once you have your scheduling conference with the appointed arbitrator(s), you will be able to agree upon a set final hearing (trial) time and have milestone dates that work backwards from the final hearing date. This is much more efficient than being placed on an unrealistic trial docket or having to deal with the gamesmanship of motions just to be able to get your case at-issue for trial.
However, the right to arbitrate your dispute can be waived. This was the issue in Leder v. Imburgia Construction Services, Inc., 2021 WL 3177338 (Fla. 3d DCA 2021), which I will be the first to tell you the ruling is quite baffling to me. In a nutshell, the contractor, by not complying with the submission of a claim to the Initial Decision Maker was found to have waived the dispute resolution provision in the AIA contract. Not sure this makes sense, but this was the ruling.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Terminating Notice of Commencement Without Contractor’s Final Payment Affidavit
October 23, 2018 —
David Adelstein - Florida Construction Legal UpdatesPrior to construction work being performed on your property, a Notice of Commencement should be recorded. Among other things, construction liens will relate back in time to an effective Notice of Commencement (meaning it has not expired). For this reason, lenders or others will want the Notice of Commencement to be terminated when the job is complete by recording in the official records a Notice of Termination of the Notice of Commencement. There is a statutory procedure to terminate a Notice of Commencement pursuant to Florida Statute 713.132.
Frequently, a clerk will want the Notice of Termination of the Notice of Commencement to be accompanied with a Contractor’s Final Payment Affidavit because 713.132 says, in material part:
(2) An owner has the right to rely on a contractor’s affidavit given under s. 713.06(3)(d), except with respect to lienors who have already given notice, in connection with the execution, swearing to, and recording of a notice of termination. However, the notice of termination must be accompanied by the contractor’s affidavit.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Want to Build Affordable Housing in the Heart of Paris? Make It Chic.
November 01, 2022 —
Marie Patino & Kriston Capps - BloombergThe project at 12 Rue Jean-Bart is a modest one, just eight units of affordable housing on a narrow lot in Paris near the Luxembourg Gardens. The social housing project nevertheless caused a stir with neighbors in the 6th arrondissement, one of the city’s more affluent areas.
When local politicians backing the project came to visit the building during its construction, neighbors shouted from windows across the street that it was a shame to build social housing here, according to Jean-Christophe Quinton, the Paris-based architect who designed the small in-fill development.
Local resistance was a persistent feature of the project throughout its three-year-long construction, Quinton says; the building regularly faced harsh scrutiny in local newspaper Le Parisien.
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Marie Patino, Bloomberg and
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Deadlines. . . They’re Important. Project Owner Risks Losing Claim By Failing to Timely Identify “Doe” Defendant
December 21, 2020 —
Garret Murai - California Construction Law BlogEarlier this year I filed a complaint in a court which I won’t identify other than to say that it wasn’t the San Francisco Superior Court. Immediately upon filing the complaint the Court gave notice of a trial date. As counsel for the party bringing the action, I appreciate this, as it eliminates the back and forth jostling that can sometimes occur when trying to get a trial date.
Here’s the kicker though. While I appreciate getting a trial date straight out of the gate. The date I got was . . . wait for it . . . not until 2022!
Those who litigate in California state courts know that the courts are understaffed and overworked. But you’ve got to give this un-named court credit for being upfront. Forget the “well, let’s see where this goes” niceties. Trial within a year? Fugetaboutit. Trial within a year and a half. Don’t even think about it. Trial within two years. It’s about as good as you’re going to get.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Cybersecurity on Your Project: Why Not Follow National Security Strategy?
August 28, 2018 —
Rick Erickson - Snell & Wilmer Real Estate Litigation BlogIn its recent Cybersecurity Strategy, the U.S. Department of Homeland Security (DHS) defined “cyberspace” as “the independent network of information technology infrastructure, including the Internet, telecommunications networks, computers, information and communications systems, and embedded processors and controllers.” To DHS, protecting cyberspace includes threats against “federal and nonfederal information systems.” In other words, both private and public interests are at risk. In his 2018 National Defense Strategy, U.S. Department of Defense Secretary, Jim Mattis, essentially concurred in declaring cyberspace a “warfighting domain” and promising to “invest in cyber defense, resilience, and the continued integration of cyber capabilities into the full spectrum of military operations.”
The construction industry is a key player in cybersecurity because contractors, designers and owners are responsible for building and delivering projects providing critical public services like national defense, health care, law enforcement, transportation, and utilities. Like any business reckoning with risks in cyberspace, moreover, everyone on a construction project has valuable data and confidentialities to protect. Cyber breaches on a project may also compromise electrical power, physical safety and, inevitably, a lot more than the critical path schedule and profit margins. Cybersecurity insurance is not very affordable or comprehensive, either, and it usually excludes any property damage or bodily injury resulting from a cyber event.
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Rick Erickson, Snell & WilmerMr. Erickson may be contacted at
rerickson@swlaw.com
Retaining Wall Contractor Not Responsible for Building Damage
July 20, 2011 —
CDJ STAFFThe Court of Appeals of Indiana ruled on July 8 in the case of Rollander Enterprises, Inc. v. H.C. Nutting Co. Judge Baily wrote the opinion affirming the decision of the trial court.
The case involved an unfinished condominium complex, the Slopes of Greendale, in Greendale, Indiana. Rollander is a real estate development company incorporated in Ohio. One of the issues in the case was whether the case should be settled in the Indiana courts or be tried in Ohio. The project was owned by a special purpose entity limited liability corporation incorporated in Indiana.
Rollander hired Nutting to determine the geological composition of the site. Nutting’s report described the site as “a medium plastic clay containing pieces of shale and limestone.” The court summarized this as corresponding with “slope instability and landslides.” Rollander then hired Nutting to design the retaining walls, which were constructed by Scherziner Drilling.
After cracking was discovered on State Route 1, the walls were discovered to be inadequate. More dirt was brought in and a system of tie-backs was designed to anchor the walls. Not only were the tie-backs unsightly, local officials would not approve the complex for occupancy. Further, the failure of the wall below one building lead to damage of that building.
The court concluded that since almost all events occurred in Indiana, they rejected Rollander’s contention that the case should be tried in Ohio. Further, the court notes “the last event making Nutting potentially liable on both claims was an injury that occurred in Indiana and consequently, under the lex loci delicti analysis, Indiana law applies.”
Nor did the court find that Nutting was responsible for the damage to the rest of the project, citing an Indiana Supreme Court ruling, that “there is no liability in tort to the owner of a major construction project for pure economic loss caused unintentionally by contractors, subcontractors, engineers, design professionals, or others engaged in the project with whom the project owner, whether or not technically in privity of contract, is connected through a network or chain of contracts.”
The court concluded:
Because Rollander was in contractual privity with Nutting, and Indy was connected to Nutting through a chain of contracts and no exception applies, the economic loss rule precludes their recovery in tort. Damage to Building B was not damage to "other property," and the negligent misrepresentation exception to the economic loss rule is inapplicable on these facts. The trial court therefore did not abuse its discretion by entering judgment on the evidence in favor of Nutting on the Appellants' negligence and negligent misrepresentation claims.
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