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Housing in U.S. Cools as Rate Rise Hits Sales: Mortgages

April 28, 2014 — John Gittelsohn and Prashant Gopal – Bloomberg
After a roller-coaster decade of boom-bust-boom, the U.S. housing market is going downhill just when many economists thought annual sales would be heading up. Sales of previously owned properties in March tumbled 7.5 percent from a year earlier to the slowest pace in 20 months, while purchases of new houses sank 14.5 percent from February, according to reports this week. Mortgage applications to buy homes plunged 19 percent from a year earlier, indicating slowing demand during what is typically the busiest season for deals. The housing market’s underlying fragility is emerging as outside influences that fueled a two-year rebound are receding. Mortgage interest rates are rising from record lows as the central bank withdraws its stimulus, and investors, who had helped drive national prices up more than 20 percent as they went on a buying spree, are now retreating. Mr. Gittelsohn may be contacted at johngitt@bloomberg.net; Mr. Gopal may be contacted at pgopal2@bloomberg.net Read the court decision
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Reprinted courtesy of John Gittelsohn and Prashant Gopal, Bloomberg

Cracked Girders Trigger Scrutiny of Salesforce Transit Center's Entire Structure

November 21, 2018 — Nadine M. Post - Engineering News-Record
Nov. 15, 2018 Update: After calling on Nov. 8 for a “complete structural evaluation” of San Francisco's 1.2-million-sq-ft SalesForce Transit Center, following the discovery on Sept. 25 of significant, mid-span cracks in the bottom flanges of twin parallel girders spanning 80 ft over Fremont Street, the Transbay Joint Powers Authority now says the problems with girders are localized. Read the court decision
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Reprinted courtesy of Nadine M. Post, ENR
Ms. Post may be contacted at postn@enr.com

Dust Infiltration Due to Construction Defect Excluded from Policy

September 09, 2011 — CDJ STAFF

A summary judgment was affirmed in the case of Brown v. Farmers Group, by the California Court of Appeals. The Browns bought a new home in Oakley, California. At the time, they signed disclosure statement “acknowledging that the area around their home experienced gusty winds and would be in development for years to come, which might result in dust and airborne mold.”

The Browns found an unusual amount of dust in their home, which became worse when they ran their heating and air conditioning system. Shelia Brown was later diagnosed with chronic valley fever, which was attributed to airborne mold. The Browns contacted Farmers which investigated the house. Although the adjustor from Farmers said the Browns would be covered, Farmers denied the claim.

After the Browns moved out of the house, an inspector found that the HVAC line in the attic was disconnected, sending dust into the home. The Browns brought action against Mid-Century Insurance, which managed the policy, and Farmers. The identified the HVAC defect, window problems, and valley fever as causes, suing for breach of contact, breach of implied covenant of good faith and fair dealing, and the intentional infliction of emotional distress.

The court rejected all these claims. The policy with Farmers excluded losses due to defective construction. This ruled out the faulty HVAC system and any problems there might have been from the windows. The policy also specifically excluded losses from contamination, fungi, pathogens, and noxious substances. The court further found that the adjustor’s opinion was irrelevant to the question of what the policy actually covered. Finally, the court found no evidence of intentional infliction of emotional stress.

On review, the appeals court upheld the trial court’s conclusions and affirmed the summary judgment.

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NLRB Hits Unions with One-Two Punch the Week Before Labor Day

November 18, 2019 — John Baker & Robert Pettigrew - White and Williams LLP
The National Labor Relations Board (the Board) continues to modify the way employers, unions and employees view and relate to each other in the workplace. In two decisions right before Labor Day, the Board strengthened employer rights in their workplaces, while at the same time making life for their union counterparts more difficult. On August 23, 2019, the Board revisited the issue of whether an employer must grant access to the off-duty employees of an onsite contractor so they can engage in Section 7 activities on the employer’s property. In general, Section 7 activities consist of employees acting together to improve their pay and working conditions, which constitute fundamental rights under the National Labor Relations Act (the Act). In Bexar County Performing Arts Center Foundation d/b/a Tobin Center, the San Antonio-based performing arts center, the Tobin Center, owned the Center as well as grounds that abutted the famed San Antonio River Walk. The Tobin Center housed three resident companies, one of which was the Ballet San Antonio with whom it had a licensor-licensee agreement. In addition to plays, movies and other productions, the Tobin Center hosted the San Antonio Symphony (the Symphony) to perform for 22 weeks of the year. The Ballet San Antonio also occasionally utilized the Symphony for live musical performances at its ballets. When, however, the Ballet San Antonio decided to use recorded music for a particular production, off-duty employees of the Symphony protested by leafletting the public on the Tobin Center property. The leaflets advised the public of this decision and urged that they “DEMAND LIVE MUSIC!” Their protests were not directed at the property owner, who denied them access to its property. Reprinted courtesy of John Baker, White and Williams LLP and Robert Pettigrew, White and Williams LLP Mr. Baker may be contacted at bakerj@whiteandwilliams.com Mr. Pettigrew may be contacted at pettigrewr@whiteandwilliams.com Read the court decision
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“I Didn’t Sign That!” – Applicability of Waivers of Subrogation to Non-Signatory Third Parties

September 30, 2019 — Rahul Gogineni - The Subrogation Strategist
In Gables Construction v. Red Coats, 2019 Md. App. LEXIS 419, Maryland’s Court of Special Appeals considered whether a contractual waiver of subrogation in the prime contract for a construction project barred a third party – a fire watch vendor hired to guard the worksite – from pursuing a contribution claim against the general contractor. The court concluded that the general contractor could not rely on the waiver of subrogation clause to defeat the contribution claim of the vendor, who was not a party to the prime contract. As noted by the court, holding that a waiver of subrogation clause bars the contribution claims of an entity that was not a party to the contract would violate the intent of the Maryland Uniform Contribution Among Tortfeasors Act (UCATA). When dealing with claims involving construction projects, there may exist multiple contracts between various parties that contain waivers of subrogation. The enforceability of such waivers can be limited by several factors, including the jurisdiction of the loss, the language of the waiver and the parties to the contract. In Gables Construction, Upper Rock, Inc. (Upper Rock), the owner, contracted with a general contractor, Gables Construction (GCI) (hereinafter referred to as the “prime contract”), to construct an apartment complex. After someone stole a bobcat tractor from the jobsite, Gables Residential Services Incorporated (GRSI), GCI’s parent company, signed a vendor services agreement (VSA) with Red Coats to provide a fire watch and other security services for the project. Read the court decision
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Reprinted courtesy of Rahul Gogineni, White and Williams LLP
Mr. Gogineni may be contacted at goginenir@whiteandwilliams.com

On-Site Supersensing and the Future of Construction Automation – Discussion with Aviad Almagor

September 06, 2021 — Aarni Heiskanen - AEC Business
For this episode of WDBE Talks, we sat down with Aviad Almagor of Trimble Ltd. to discuss sensor technology in the modern built environment. Our conversation touched on the on-site implementation of robotics and AI-based solutions, the importance of data capture, and the challenges facing the sector today and in the years ahead. Aviad Almagor is the Division Vice President of Emerging Technologies with Trimble Ltd., a California-based hardware, software, and tech company that specializes in the development of Global Navigation Satellite Systems (GNSS) and recently collaborated with Boston Dynamics to automate construction processes. “AI in construction is a very exciting topic though the industry is traditionally not very well-equipped to adopt technology in a very effective way. AI is an enabling technology that can be used to support and augment work. This means we can automate processes; predict delays in schedule; cost changes; even design issues and prescribe and provide decision-makers with the right information to be efficient and to make the right choices for projects.” Aviad noted in our interview. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

"Abrupt Falling Down of Building or Part of Building" as Definition of Collapse Found Ambiguous

October 23, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court predicted the California Supreme Court would find the definition of collapse, calling for the abrupt falling down or caving in of a building or part of a building, to be ambiguous. Hoban v. Nova Cas. Co., 2018 U.S. Dist. LEXIS 139116 (N.D. Cal. Aug. 15, 2018). The insureds' bowling center had two roof trusses that helped support the roof. The truss failures caused the building ceiling, overhead monitors, and disco ball to drop approximately six to ten inches, and also caused ceiling tiles and a layer of insulation to fall from the ceiling. A general contractor, named Tom Powers, and the county building inspector inspected the damage. The building inspector immediately ordered the business closed until necessary repairs could be completed. Powers was hired to shore up the roof support system to prevent a complete collapse. Thereafter, the insureds were able to re-open the bowling alley. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Construction Defect Claim Did Not Harm Homeowner, Court Rules

September 30, 2011 — CDJ STAFF

The Minnesota Court of Appeals has ruled in Creswell v. Estate of Howe, a case in which a woman bought a home and then sued the seller’s estate, both sets of real estate agents, and the homeowner’s association over construction defects. A district court ruled against her, granting summary judgment to the other parties.

After buying a townhome “as is,” Catherine Creswell claims to have shared a thought with her agent that the homeowners association was, in the words of her agent, “trying to hide something.” Later, Creswell found that a few days before her closing, the board had discussed problems with “roofs, siding and soundproofing of the townhomes.” The court noted that “it was clear from the documents that appellant [Creswell] received that the association had known about various construction defects for many years, some of which affected [her] unit.”

Creswell initially sued the estate, the man who negotiated the sale for his mother’s estate, the real estate companies and the agents involved, the homeowners association, and four board members. Later she sued for punitive damages, dropped a claim for interference with contractual relations, and dismissed her claims against the individual board members. The court dismissed all of Creswell’s claims awarding costs to those she sued.

The appeals court has affirmed the decision of lower court, noting that Creswell “did not provide us with any argument why the district court erred in dismissing her unjust-enrichment, breach of contract, or rescission claims against the various respondents.” Nor did she provide evidence to support her claims of “breach of duty, fraud, and violation of consumer protection statutes.”

The court noted that Creswell could not sue the homeowners association over the construction defects because she “failed to prove that she was damaged by the association’s nondisclosure.” The court noted that “there are no damages in this case,” as Creswell “was never assessed for any repairs, she had not paid anything out-of-pocket for repairs, and she has presented no evidence that the value of her individual unit has declined because of the alleged undisclosed construction defects.”

The court granted the other parties motion to dismiss and denied Creswell’s motion to supplement the record. Costs were awarded to the respondents.