Understand the Dispute Resolution Provision You Are Agreeing To
September 20, 2021 —
David Adelstein - Florida Construction Legal UpdatesWhen negotiating a contract, do not overlook the dispute resolution provision. It is one of the more important provisions in your construction contract. This provision will come into play and have ramifications if there is a dispute, which is certainly not uncommon on a construction project.
In dispute resolution provisions in subcontracts on federal projects, it is not unusual for that provision to include language that requires the subcontractor to STAY any dispute that concerns actions or inactions of the owner pending the resolution of any dispute between the owner and prime contractor relating to that action or inaction. A provision to this effect should be included for the benefit of the prime contractor. For instance, the provision may say the subcontractor agrees to stay any such claim against the prime contractor or prime contractor’s surety pending the outcome of any pass-through claim (or otherwise) submitted under the Contract Disputes Act.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Florida Insurance Legislation Alert - Part I
April 18, 2023 —
Gregory D. Podolak & Holly A. Rice - Saxe Doernberger & Vita, P.C.On March 24, 2023, Florida Governor Ron DeSantis signed into law House Bill 837 which significantly impacts several critical aspects of modern Florida civil litigation, particularly insurance disputes. SDV has actively monitored the evolution of this legislation, including substantial commentary from the legal and insurance communities that followed its enactment. In this multi-part series, we will explore the critical developments impacting policyholders and what to expect moving forward.
The insurance-related headlines overwhelmingly concentrate on one key area: the elimination of one-way attorney fee recovery for property insurance policyholders. This development represents a key change in longstanding Florida insurance law and is worthy of attention - but it doesn’t tell the whole story.
Reprinted courtesy of
Gregory D. Podolak, Saxe Doernberger & Vita, P.C. and
Holly A. Rice, Saxe Doernberger & Vita, P.C.
Mr. Podolak may be contacted at GPodolak@sdvlaw.com
Ms. Rice may be contacted at HRice@sdvlaw.com
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The First UK Hospital Being Built Using AI Technology
February 01, 2023 —
Aarni Heiskanen - AEC BusinessUniversity Hospitals Dorset (UHD) has announced that the
new Royal Bournemouth Hospital is the first hospital facility in the UK to be built using groundbreaking AI technology, which increases efficiency and decreases costs.
The technology,
Buildots, automatically analyses data captured at the site via helmet-mounted 360-degree cameras. The platform then generates true-to-life progress reports supported by visuals, providing managers and stakeholders with accurate, objective data and in-depth analysis, leading to improved efficiency.
Evidence-Based Real-Time Analysis
The Royal Bournemouth Hospital’s new BEACH building (Births, Emergency And Critical Care, Children’s Health) will include a new purpose-built maternity unit, purpose-built children’s unit, enhanced emergency department, and critical care unit.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Cumulative Impact Claims and Definition by Certain Boards
June 21, 2024 —
David Adelstein - Florida Construction Legal UpdatesWhat is a cumulative impact claim? This is commonly referred to as the unforeseeable ripple effect of changes, i.e., the death by a thousand cuts. Cumulative impact claims refer to a disruption on productivity based on the cumulative impact of changes and their impact on unchanged work. Cumulative impact claims are difficult claims to prove, particularly based on the causation standpoint (and argument they could be released based on change order language). If pursuing or considering a cumulative impact claim, you will need to work with a consultant(s) and lawyer that understand the dynamic of these claims to best maximize your arguments and recovery from a causation and damages standpoint. Cumulative impact damages are real. They occur. But they are not damages you can just throw out there or use loosely and expect to develop traction on compensation.
Below is how cumulative impact claims are defined by certain Boards of Contract Appeals. The definitions are important.
In Appeal of Centex Bateson Construction, Co., Inc., 9901 BCA P 30153, VABCA 4613 (VABCA 1998), the Board explained:
Direct impact, as the immediate and direct effect of a change on unchanged work, is considered foreseeable.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Court Addresses When Duty to Defend Ends
August 24, 2020 —
Anthony L. Miscioscia & Margo E. Meta - White and WilliamsThere are certain generally held principles regarding an insurer’s duty to defend. One of these principles is that an insurer has a duty to defend its insured if the complaint states a claim that potentially falls within the policy’s coverage. However, there is a lack of consistency regarding the point at which the insurers’ duty to defend ends. When the only potentially covered claim has been dismissed, must the insurer continue to defend?
Certain jurisdictions, such as Hawaii and Minnesota, have held that an insurer’s duty to defend continues through an appeals process, or until a final judgment has been entered, disposing of the entire case. Commerce & Industry Insurance Company v. Bank of Hawaii, 832 P.2d 733 (Haw. 1992); Meadowbrook, Inc. v. Tower Insurance Company, 559 N.W. 2d 411 (Minn. 1997).
Earlier this week, the U.S. District Court for the Eastern District of Pennsylvania took a different approach to this question in Westminster American Insurance Company v. Spruce 1530, No. 19-539, 2020 U.S. Dist. LEXIS 106534 (E.D. Pa. June 17, 2020) – holding that the trial court’s dismissal of the only potentially covered claim was sufficient to terminate Westminster’s duty to defend.
Reprinted courtesy of
Anthony L. Miscioscia, White and Williams and
Margo E. Meta, White and Williams
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Ms. Meta may be contacted at metam@whiteandwilliams.com
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Augmenting BIM Classifications – Interview with Eveliina Vesalainen of Granlund
July 19, 2017 —
Aarni Heiskanen - AEC BusinessBuildingSMART Finland is supplementing building information modeling (BIM) guidelines in a national standardization project, as a part of the KIRA-digi program. In her Master’s thesis, Eveliina Vesalainen, of Granlund, has compared European BIM classifications for mechanical, electrical, and plumbing (MEP) design. Her study is the groundwork for the upcoming Finnish norms.
“I’m a 26-year-old, soon to be Master of Science, and I come from Mäntsälä. I live in Helsinki and work at Granlund, a leading Finnish MEP consultancy,” Eveliina explains. She has a bachelor’s degree in environmental engineering, but became interested in MEP by chance.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
info@aepartners.fi
Wildfire Is Efficient Proximate Cause of Moisture Reaching Expansive Soils Under Residence
November 05, 2014 —
Tred R. Eyerly - Insurance Law HawaiiThe court considered whether a wildfire (covered risk) or moisture in the soils (excluded risk) was the cause of damage to the insureds' home. Encompass Ins. Co. v. Berger, 2014 U.S. Dist. LEXIS 142870 (C.D. Cal. Oct. 7, 2014).
In May 2009, the Jesusita Fire caused damage to the insureds' home and surrounding area. The west wall of the house was burned, causing damage to a bedroom. A shed, hot tub, wooden decks and some vegetation, including eucalyptus trees, were damaged.
The insureds submitted a claim to Encompass. Eventually, Encompass spent $400,000 repairing the property.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Builders Beware: A New Class Of Defendants In Asbestos Lawsuits
January 06, 2016 —
David J. Byassee, Bremer Whyte Brown & O’Meara, LLP & Timothy A. Gravitt, Ulich, Ganion, Balmuth, Fisher & Feld, LLPResidential, commercial and industrial builders face new and potentially significant liability for construction activities that took place in the 1960s, 1970s and 1980s: personal injury lawsuits filed by construction workers from exposure to building products containing asbestos. After emptying the pockets of manufacturers and suppliers of raw asbestos and asbestos-containing products over the last 20 years, plaintiff lawyers are beginning to set their sights on a new class of defendants in asbestos litigation: residential, commercial and industrial builders who unknowingly allowed asbestos-containing products to be incorporated into their projects.
The men and women who have been involved in the building industry for 40 years or more may remember the subject of asbestos surfacing in the 1970s with the enactment of the Occupational Safety and Health Act (OSHA). At that point builders were just beginning to learn that asbestos was a component of some building materials, and the potential risk of cancer presented by asbestos was being debated in scientific and medical journals. Although the use of building materials containing asbestos was mostly phased out by the 1980s, the health risks associated with exposure to asbestos continue – and in fact increase – for the duration of an exposed person’s life.
Today it is generally accepted that exposure to asbestos increases the risk of developing asbestosis and certain kinds of cancer, including mesothelioma. Cancers associated with exposure to asbestos are typically diagnosed at least 15 years (and sometimes up to 50 years) after a person’s exposure to asbestos, meaning that exposures in the 1960s, 1970s and 1980s might not manifest in disease until now. The class of persons who may be at risk for asbestos-related disease is long and varied: insulators, HVAC installers, pipe fitters, plumbers, drywall installers, painters, plasterers and roofers, to name a few. Long-term exposure history, coupled with the theory that “each and every” exposure during a lifetime is a substantial factor increasing the risk of developing cancer, presents potential liability to builders acting as general contractors and/or property owners, as well as the usual defendants in asbestos lawsuits, which include manufacturers, suppliers, and users of asbestos-containing materials.
In recent years, plaintiff lawyers have set their sights on builders as the financial wherewithal of traditional asbestos defendants has dried up. Plaintiff lawyers have created a new theory of liability which they use to rope builders in as defendants in asbestos lawsuits: that the builder knew – or should have known – that a deadly ingredient (asbestos) was contained in the building materials used in construction, and the builder failed to warn its subcontractors or anyone else on the project that exposure to asbestos could harm them.
Builders have unique legal defenses to claims brought by employees of subcontractors who have developed asbestos-related disease. For example, the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689, held that an injured employee of a subcontractor cannot maintain a claim against the hirer (builder) for the employee’s injury absent affirmative contribution on the part of the builder to the injury. Thus the first line of defense in an asbestos exposure case is to argue that the developer had no direct role in the plaintiff’s exposure to asbestos and therefore the Privette doctrine precludes the plaintiff from suing the builder. But resourceful plaintiff lawyers are coming up with arguments to get around this so-called Privette defense in asbestos lawsuits by claiming that builders’ activities such as cleanup of asbestos-containing materials, or assertion of control over the work of the subcontractor, directly contributed to the plaintiff’s injuries and therefore provide exceptions to Privette and allow the claim to proceed.
A practical question is raised in asbestos cases: How is a plaintiff able to prove, decades after working on a project, what building materials contained asbestos, or that a builder knew or should have known in the 1960s, 1970s or 1980s that asbestos-containing materials were used on their project, or that asbestos presented a health risk? To answer the first part of the question (what building materials contained asbestos), plaintiff’s experts will say that during the relevant timeframe asbestos was a common ingredient in many building products, e.g., drywall joint compounds, stucco/plaster/gun cement, acoustic ceiling products, cement pipe, insulation, roofing mastic, caulk and plumber’s putty; this can be further proven by reference to product manufacturers’ disclosures made pursuant to the Asbestos Information Act. Also, through the decades of asbestos litigation against product manufacturers and suppliers, resourceful plaintiff lawyers have developed vast banks of data and documentation identifying the manufacturers of asbestos-containing building products, the end-users of those products, and the projects where those products were supplied. With this bank of knowledge, all that is necessary for them to make the claim against a builder is to have the plaintiff identify a construction project where he or she remembers working during the relevant timeframe. Once that identification is made, it is a simple matter for the lawyers to dig and find out who developed the building/project, who then becomes a defendant in an asbestos lawsuit.
The answer to the second part of the question (whether the developer knew or should have known that the products brought to their projects contained asbestos) requires a detailed investigation into the dates at which the products were supplied to the project, the manufacturer of the product, and what information was available in the market place about the material content of the particular product.
The answer to the third part of the question (knowledge that asbestos presented a health risk) is trickier. One of the first standards set by OSHA in 1972 related to permissible levels of exposure to asbestos. It is a common tactic for plaintiff lawyers to argue that the existence of OSHA standards created a presumption of knowledge in the building industry about the dangers of asbestos. But what about pre-OSHA knowledge? Here plaintiff lawyers will argue that well before OSHA, going back as far as 1936, exposure to asbestos was regulated in California under General Industry Safety Orders relating to Dusts, Fumes, Mists, Vapors and Gases. They argue that the General Industry Safety Orders put builders “on notice” of the dangers of asbestos by virtue of being regulated by the State of California, and, by extension, builders had “knowledge” of the health risks associated with asbestos.
There are defenses that skilled defense counsel can utilize to defeat asbestos claims, assuming the Privette defense is not available. The first is to thoroughly investigate and evaluate all of the plaintiff’s potential exposures to asbestos throughout his entire lifetime, and identify those sources that likely were the major contributors to his disease. Next, counsel has to properly investigate the project at which the plaintiff is alleged to have been exposed to asbestos, identify all of the possible sources of exposure, i.e., the products that were used or might have been used at the project, and finally how the plaintiff was allegedly exposed at the project. As most builders do not maintain records of what products were used in their projects dating back 15 years or more, let alone the identities of the trades that worked on the projects, knowledgeable defense counsel can be a valuable partner in unearthing the brands of products typically in use in the locale where the construction took place, and identifying the manufacturers of those products. Defense counsel must analyze the frequency, duration, proximity and intensity of the exposure, as well as the type of asbestos the plaintiff was allegedly exposed to (not all asbestos is created equal – some types are more toxic than others). This will involve careful evaluation of the levels of exposure created by the alleged activity of the builder, to determine, through experts and a thorough understanding of the scientific and medical studies on the subject, whether the levels of asbestos exposure created by the activity could be considered a “substantial factor” in contributing to the risk of the plaintiff’s development of his asbestos-related disease.
Asbestos lawsuits present a significant risk to the unsuspecting and unprepared builder. Money damages available to a plaintiff are substantial. Medical expenses for treatment of asbestos-related disease typically run into the hundreds of thousands of dollars, lost income (including retirement benefits) can also be significant, and jury awards for pain, suffering and emotional distress can be staggering - often millions of dollars. In some cases punitive damages are even awarded.
The bottom line is that a builder runs a big risk if it treats an asbestos claim like any other claim. The level of analysis and investigation to properly defend against the claim requires prompt action by knowledgeable counsel, and frequently there is no insurance coverage.
David J. Byassee is an attorney with the firm
Bremer Whyte Brown & O’Meara, LLP, and is a litigator who has devoted nearly a decade to representation of real estate developers and builders. He can be reached at: dbyassee@bremerwhyte.com.
Timothy A. Gravitt is an attorney with the firm
Ulich, Ganion, Balmuth, Fisher & Feld, LLP who is devoted to defending real estate developers and builders in a variety of litigation. He can be reached at: tgravitt@ulichlaw.com.
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