Look Out! Texas Building Shedding Marble Panels
November 13, 2013 —
CDJ STAFFThe streets around the Omni Building in Lubbock, Texas have been barricaded for an indefinite period, since the marble panels have been falling off the building. The panels weight about 300 pounds each.
The building’s owners attempted to remedy the problem by replacing the marble with stucco, but that too came loose in the wind and fell to the ground. The city issued a stop work order preventing the installation of any more stucco. The city “told them that all needed to come down, both the old and the new,” according to Steve O’Neil, the city’s chief building official.
The city has filed a lawsuit to compel the owners to fix the building. Glen Robertson, Lubbock’s mayor, sees another possible solution, “or demolish it because, as it stands right now, it is truly a health and safety hazard to our citizens.
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Federal Government May Go to Different Green Building Standard
February 12, 2013 —
CDJ STAFFThe federal government has expressed a commitment to environmentally sound, or “green” building practices, but now the question becomes who decides what constitutes a green building. The U.S. General Services Administration has started a public comment period on what certification program the GSA should recommend. Currently, the GSA uses the LEED standard from the U.S. Green Building Council.
Although there are three green building standards, LEED, Green Globes, and the Living Building Challenge, only the first two are being seriously considered, according to a report on TriplePundit.com. The Green Globes program from the Green Building Initiative has its detractors, as some feel that the program fails to be sufficiently environmentally sound. Green Globes was created by a former lumber industry executive, Ward Hubbell, and is more permissive about woods and plastics used in construction. Hubbell defends the program, saying that the certification program is both rigorous and transparent.
The U.S. Green Building Council also has its critics, and allegation have been made that LEED costs about twice as much as Green Globes in order to enrich the executives at the U.S. Green Building Council. Further, some claim that LEED certification involves lengthy delays. One architect criticized LEED, indicating that if he has questions he would “have to wait a month for a response.”
The U.S. Department of Energy seems to be favoring Green Globes, as their review found it a better choice for meeting government requirements for new buildings. Conversely, the agency preferred LEED for modifying existing buildings.
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Standard of Care
December 16, 2019 —
Jay Gregory - Gordon & Rees Construction Law BlogOne of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing.
Although we have this ready definition of the standard of care, in any given dispute it is practically inevitable that the parties will have markedly different opinions as to: (1) what the standard of care required of the designer; and (2) whether the defendant design professional complied with that requirement. The claimant bringing a claim against a design professional typically will be able to find an expert reasonably qualified (at least on paper) who will offer an opinion that the defendant failed to comply with the standard of care. It is just as likely that the counsel for the defendant design professional will be able to find his or her own expert who will counter the opinion of the claimant’s expert and maintain that the defendant design professional, in fact, complied with the standard of care. What’s a jury to think?
The concept of standard of care is intertwined with the legal concept of negligence. In the vast majority of law suits against design professionals, a claimant (known as the plaintiff) will assert a claim for negligence against the design professional now known as the defendant.1 As every first year law student learns while studying the field of “Torts,” negligence has four subparts. In order for a defendant to be found negligent, the claimant must establish four elements: (1) duty; (2) breach; (3) causation; and (4) damages. In other words, to establish a claim against a defendant design professional, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care but breached that duty and, as a result, caused the plaintiff to suffer damages.
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Jay Gregory, Gordon & Rees Scully MansukhaniMr. Gregory may be contacted at
jgregory@grsm.com
Federal District Court Issues Preliminary Injunction Against Implementation of the Fair Pay and Safe Workplaces Final Rule
November 03, 2016 —
Patrick J. Greene, Jr. & Lori Ann Lange – Peckar & Abramson, P.C. Client AlertOn July 31, 2014, President Barack Obama issued Executive Order 13673. As subsequently amended, the Executive Order purports to “increase efficiency and cost savings in the work performed by parties who contract with the Federal Government by ensuring that they understand and comply with labor laws.” On August 25, 2016 the Federal Acquisition Regulation (“FAR”) Council published the final FAR Rule and the United States Department of Labor (“DOL”) published its Guidance further implementing the Executive Order. The FAR final rule was scheduled to go into effect in stages, starting with solicitations with an estimated value of $50 million or more on October 25, 2016. The potential effect of these new regulations on government contractors has been the subject of prior alerts from this office and much ongoing discussion.
Reprinted courtesy of
Patrick J. Greene, Jr., Peckar & Abramson, P.C. and
Lori Ann Lange, Peckar & Abramson, P.C.
Mr. Greene may be contacted at pgreene@pecklaw.com
Ms. Lange may be contacted at llange@pecklaw.com
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Patriarch Partners Decision Confirms Government Subpoenas May Constitute a “Claim” Under D&O Policy; Warns Policyholders to Think Broadly When Representing Facts and Circumstances to Insurers
January 08, 2019 —
Michael S. Levine, Sergio F. Oehninger, & Joshua S. Paster - Hunton Andrews KurthThe Second Circuit recently confirmed in Patriarch Partners, LLC v. Axis Insurance Co. that a warranty letter accompanying the policyholder’s insurance application barred coverage for a lengthy SEC investigation, which ripened into a “Claim” prior to the policy’s inception date. The opinion left intact the lower court’s finding that the SEC subpoena constituted a “demand for non-monetary relief” and thus qualified as a “Claim” under the directors and officers (D&O) insurance policy.
Reprinted courtesy of Hunton Andrews Kurth attorneys
Michael S. Levine,
Sergio F. Oehninger and
Joshua S. Paster
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Paster may be contacted at jpaster@HuntonAK.com
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Real Estate & Construction News Roundup (05/10/23) – Wobbling Real Estate, Booming (and Busting) Construction, and Eye-Watering Insurance Premiums
May 22, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, the commercial real estate sector continues to wobble, construction booms and busts, flood insurance premiums reach eye-watering levels, and more.
- In its latest Financial Stability report, the Federal Reserve acknowledges that the shaky commercial real estate sector could potentially harm the U.S. financial system. (Courtenay Brown, Axios)
- New data from the California Department of Finance shows that even though the state’s population significantly decreased during the COVID-19 pandemic, home building soared, reaching levels not seen since 2008. (Terry Castleman, Los Angeles Times)
- Already weakened by rising interest rates, inflation and debt, Sweden’s real estate sector took another hit as SBB’s shares continued to slump. (Reuters)
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Pillsbury's Construction & Real Estate Law Team
Insurers Reacting to Massachusetts Tornadoes
August 11, 2011 —
CDJ STAFFThe Patriot-Ledger reports that insurers could pay out as much as $200 million to cover homes damaged or destroyed in the tornadoes that hit central and southern Massachusetts in June, 2011. Joseph Murphy, Commissioner of the State Division of Insurance didn?t foresee problems with insurers covering these claims. “At this point, there doesn’t seem to be any one company overexposed in that area,” he told the Patriot-Ledger.
Insurance executives did not think the tornadoes would cause them to raise rates. Steve Chevalier, CEO of NLC Companies, said, “it’s a major event for those impacted by it, but it’s not close to a financial hit to us.”
One insurer noted that the winter weather generated more claims; however the cumulative value of those claims was $15 million.
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Coverage for Injury to Insured’s Employee Not Covered
June 10, 2015 —
Tred R. Eyerly – Insurance Law HawaiiThe employee exclusions in the employer's CGL and Umbrella policies barred coverage. Piatt v. Indiana Lumbermen's Mut. Ins. Co., 2015 Mo. LEXIS 32 (Mo. April 28, 2015).
Linda Nunley was killed while working for Missouri Hardwood Charcoal, Inc. The kiln's large steel door had been removed and was leaning upright against another kiln when it blew over and crushed Ms. Nunley. Her family filed a wrongful death suit against Junior Flowers, the company's sole owner, director, and executive officer. The complaint alleged that Flowers was negligent in ordering employees to lean the kiln doors upright, even though he knew it was unsafe. The complaint further alleged that Flowers breached a personal duty of care owed to Ms. Nunley and that his actions were "something more" that a breach of the company's duty to provide a safe workplace.
Flowers requested a defense under CGL and Umbrella policies issued by Lumbermen's. The policies insured Missouri Hardwood and its executive officers, but excluded liability for a work-related injury to an "employee of the insured." The policies also had a "separation of insureds" provision, stating that the insurance applied "separately to each insured against whom claim is made or suit is brought." Lumbermen's denied coverage.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
