West Virginia Wild: Crews Carve Out Corridor H Through the Appalachian Mountains
May 08, 2023 —
Aileen Cho - Engineering News-RecordWhen crews with Kokosing Construction Co. began a $209-million design-build contract—the largest of its kind in West Virginia—in 2015, they first had to build roads in order to build the actual road called Corridor H.
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Aileen Cho, Engineering News-Record
Ms. Cho may be contacted at choa@enr.com
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Colorado Senate Revives Construction Defects Reform Bill
March 01, 2017 —
Beverley BevenFlorez-CDJ STAFFA re-booted construction defects reform bill recently passed its first Senate committee, according to the Denver Business Journal. Next, Senate Bill 156, sponsored by Sen. Owen Hill, R-Colorado Springs, heads to the Senate floor for debate.
SB 156 “would require that condominium owners alleging construction defects take their disputes to arbitration or mediation if requested by builders,” the Denver Business Journal reported. “It also would require that homeowners be informed of the consequences of filing legal actions over purported disputes and that a majority of all owners in a condominium complex vote to proceed with legal action, rather than just a majority of homeowners association board members.”
However, it is almost identical to the failed measures that were introduced in 2014 and 2015.
Homeowners association group members and owners of defective condominiums argued against the measure, stating “that the effort would not improve the quality of building in the state, but simply would block aggrieved Coloradans from taking their complaints before a jury of their peers.”
Proponent of the bill, Tom Clark, CEO of Metro Denver Economic Development Corp., said “that Denver’s housing costs have risen since the first bill was introduced in 2013 to the sixth-most-expensive in the country – and are tops for any metro area not on a coast.”
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NY Pay-to-Play Charges Dropped Against LPCiminelli Executive As Another Pleads Guilty
June 06, 2018 —
Mary B. Powers & Debra K. Rubin - Engineerings News-RecordThe former president of New York contractor LPCiminelli—the firm that has been at the center of an alleged pay-to-play scheme playing out since 2016 when he and two other executives were indicted—got a reprieve as federal prosecutors said they were dropping all charges against him, including wire fraud, conspiracy to commit wire fraud and making false statements to federal agents, according to a June 1 court filing.
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Mary B. Powers, ENR and
Debra K. Rubin, ENR
Ms. Rubin may be contacted at rubind@enr.com
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Get Your Contracts Lean- Its Better than Dieting
January 13, 2020 —
Brian Perlberg, Esq. - ConsensusDocsI recently took the AGC Lean Construction Educations Program Units 1-7. After studying diligently, I’m happy to say that I passed the exam and earned my CM-Lean credential. Surprisingly, this makes me the first attorney to earn this distinction out of over 1,200 CM-Lean holders. So why is a construction attorney learning about lean? After all, this was my first exam in 20 years since I took the bar.
Well, according to McKinsey Global Institute, construction actually became less productive from 1995 through 2009. When it comes to efficiency, construction still lags significantly behind the manufacturing sector and the overall economy. Construction contracts – what we sign and the way in which we negotiate them, or lack thereof – is a principal reason why construction productivity is stagnant.
Contracting under an integrated lean project delivery method (ILPD) and incorporating Lean construction tools is the most powerful means to increase efficiency and add-value to owners. Owners are the client’s end-users of construction projects. ConsensusDocs has taken a leadership role in publishing the first standard ILPD contract which is an integrated form of agreement (IFOA). The ConsensusDocs 300 Integrated Project Delivery (IPD™) provides an off-the-shelf solution to contract utilizing lean tools. Not every owner can or is comfortable using an IPD approach. Consequently, ConsensusDocs produced the ConsensusDocs 305 Construction Lean Construction Addendum last year to provide an option for contracting for lean on Construction Management at-Risk and design-build projects. Some people call this approach IPD-lite or IPD’ish. Some disfavor such terms, because those terms have been used loosely on projects that aren’t very Lean.
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Brian Perlberg, Esq., Executive Director and Senior Counsel of ConsensusDocsConsensusDocs may be contacted at
support@consensusdocs.org
Brown Paint Doesn’t Cover Up Construction Defects
April 25, 2012 —
CDJ STAFFIn a decision that describes the case as illustrating “the perils that real estate brokers and their agents assume when acting as a dual listing agent to both the buyers and sellers of the same house,” the California Court of Appeals has issued a decision in William L. Lyon & Associates v. The Superior Court of Placer County. Lyon & Associates sought summary judgment to dismiss the claims of the Henleys who bought a home in a transaction where a Lyon agent represented both sides.
The prior owners of the home, the Costas, had used a Lyon agent in purchasing their home. When they later sought to sell it, that agent “became aware of some of the house’s defects and problems.” In response, the Costas sought the help of another agent, Connie Gidal, also of Lyons & Associates. Photos taken in the presence of Ms. Gidal show defects of the paint and stucco. The Costas also took the step of painting the house dark brown. During the sale process, “rain caused many of the painted-over defects to reappear.” The Costas “purchased more dark brown paint and covered up the newly visible damage prior to inspection by the Henleys.”
With the damage concealed, the Henleys bought the home in May 2006. The agreement with Lyons & Associates noted that “a dual agent is obligated to disclose known facts materially affecting the value or desirability of the property to both parties.” Escrow closed on May 9, 2006. The contract with the broker included a two-year limit on the time to bring legal action.
The Henleys moved in during June 2006, and “began to discover construction defects that had been concealed by the Costas.” In addition to the painted-over stucco problems, the Henleys found that the Costas had “installed quartzite stone overlays on the backyard steps in a manner that caused water intrusion on the house’s stucco walls.”
In May 2009, the Henleys sued the Costas, Ron McKim Construction, Lyons & Associates, and Ms. Gidal. Their complaint alleged that Lyons & Associates had committed breach of contact, negligence, fraud, breach of fiduciary duty, and negligent nondisclosure in connection with the construction defects. The Costas named Lyons in a cross complaint. Lyons moved for summary judgments on the grounds that the two-year statute of limitations had expired before the complaint and cross-complaint were filed. Both the Henleys and the Costas opposed this claim. The court denied the motion and Lyons appealed.
The appeals court upheld the denial, noting that the both California Supreme Court decision and later action by the legislature compels real estate brokers and salespersons “to conduct a reasonably competent and diligent visual inspection of the property offered for sale.” The court noted that under California law, brokers have responsibilities to both sellers and buyers. The section of law cited by Lyons applies to seller’s agents. The court rejected the contention by Lyons that they were “cooperating brokers.” The Henleys were “not constrained by the two-year statute of limitations.”
Lyons contended that even if California’s statute did not apply, there was a contractual limit of two years. The court also rejected this, agreeing with the Henleys that “the two-year limitation period must be extended by the discovery rule.”
The court noted that “Lyon & Associates may not reap the benefit of a shortened contractual limitation period when its own alleged malfeasance contributed to the delay in the discovery of the buyer’s injury.” The court found that the Henleys could proceed with their breach of contract claim, because, “when a breach of contract is committed in secret, such as the intentional nondisclosure of a real estate broker regarding a previously visible construction defect, the contractual limitations period is properly held subject to the discovery rule.” The court felt that the interpretation favored by the California Association of Realtors would “halve the applicable statute of limitations period.”
In addition to rejecting Lyon request for summary judgment on the claims made by the Henleys, the court also rejected the request of summary judgment on the claims made by the Costas, concluding that neither claim is time-barred. Costs were awarded to both the Henleys and Costas.
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An Increase of US Metro Areas’ with Normal Housing & Economic Health
February 05, 2015 —
Beverley BevenFlorez-CDJ STAFFAccording to the National Association of Home Builders’ (NAHB) Eye on Housing, 63 (out of 351) US metropolitan areas have returned to or exceeded their last normal level of housing and economic health—that’s up from 60 last quarter.
NAHB reported that “The Leading Markets Index measures a market’s proximity to normal as defined by the level of single-family housing permits, home prices and employment.”
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New York Assembly Reconsiders ‘Bad Faith’ Bill
May 31, 2021 —
Copernicus T. Gaza, Robert S. Nobel, Craig Rokuson, Eric D. Suben - Traub LiebermanThe New York State Assembly is considering A07285, which creates a private right of action for bad faith “if the insurer unreasonably refuses to pay or unreasonably delays payment without substantial justification.” The bill was first introduced in 2013 but was reintroduced on May 3, 2021 and has received some recent attention. According to the bill, an insurer acts unreasonably when it (among other things):
- Fails to provide the claimant with accurate information regarding policy provisions relating to the coverage at issue; or
- Fails to effectuate in good faith a prompt, fair, and equitable settlement of a claim or portion of a claim and where the insurer failed to reasonably accord at least equal or more favorable consideration to its insured's interests as it did to its own interests, and thereby exposed the insured to a judgment in excess of the policy limits or caused other damage to a claimant; or
- Fails to provide a timely written denial of a claimant's claim, or portion thereof, with a full and complete explanation of such denial, including references to specific policy provisions wherever possible; or
- Fails to act in good faith by compelling such claimant to initiate a lawsuit to recover under the policy by offering substantially less than the amounts ultimately recovered in such suit; or
- Fails to timely provide, on request of the policy holder or the policy holder's representative, all reports or other documentation arising from the investigation of a claim; or
- Refuses to pay a claim without conducting a reasonable investigation prior to such refusal.
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Copernicus T. Gaza, Traub Lieberman,
Robert S. Nobel, Traub Lieberman,
Craig Rokuson, Traub Lieberman and
Eric D. Suben, Traub Lieberman
Mr. Gaza may be contacted at cgaza@tlsslaw.com
Mr. Nobel may be contacted at rnobel@tlsslaw.com
Mr. Rokuson may be contacted at crokuson@tlsslaw.com
Mr. Suben may be contacted at esuben@tlsslaw.com
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Why Do Construction Companies Fail?
February 14, 2023 —
The Hartford Staff - The Hartford InsightsIf a construction company takes on a lot of work, it’s a good thing, right? Not exactly. In fact, overextension is one of the primary reasons why contractors fail. And it’s something that contractors should consider as a priority for their risk management plan.
Of the 43,277 construction businesses that started in March 2011, only 37.6% of companies survived 10 years later.
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“The construction industry has a high rate of failure,” explains Tim Holicky, senior executive underwriter in The Hartford’s construction central bond team. “And more often than not, it’s because of too much work, rather than too little of it. The key to a contractor’s long-term survival is knowing when to say no.”
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The Hartford Staff, The Hartford Insights
