General Contractor’s Professional Malpractice/Negligence Claim Against Design Professional
November 30, 2017 —
David Adelstein - Florida Construction Legal UpdatesA recent case supports a professional malpractice (negligence) claim by a general contractor against a design professional by reversing a trial court’s entry of summary judgment in favor of the design professional and finding a question of fact remained as to an architect’s role in the renovation of a public construction project. By the appellate court finding that a question of fact remained, the appellate court was finding that it was a triable issue, which is exactly what the general contractor wanted in this case. Getting this issue and the facts to the jury is the leverage the general contractor presumably wanted.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
SDNY Vacates Arbitration Award for Party-Arbitrator’s Nondisclosures
April 13, 2017 —
Justin K. Fortescue & Ciaran B. Way - White and Williams LLPThe US District Court for the Southern District of New York recently vacated an arbitration award finding that a party-appointed arbitrator’s undisclosed relationship with the party appointing him was significant enough to demonstrate evident partiality. Certain Underwriting Members at Lloyd’s of London, et. al. v. Ins. Companies of America, Inc., Nos. 16-cv-232 and 16-cv-374 (S.D.N.Y. March 31, 2017).
In the arbitration, the panel was asked to determine whether the reinsurance contracts, covering workers’ compensation policies, only applied when multiple claimants were injured as the result of the same loss occurrence. After a three-day hearing, the arbitration panel issued an award in favor of the ceding company, Insurance Companies of America (ICA). After the award was issued, Lloyd’s discovered that ICA’s arbitrator had significant undisclosed relationships with principals at ICA and moved to vacate the award in federal court.
Reprinted courtesy of
Justin K. Fortescue, White and Williams LLP and
Ciaran B. Way, White and Williams LLP
Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com
Ms. Way may be contacted at wayc@whiteandwilliams.com
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Economist Predicts Housing Starts to Rise in 2014
February 12, 2014 —
Beverley BevenFlorez-CDJ STAFFDavid Crowe, chief economist of the National Association of Home Builders (NAHB), predicts “that single-family home starts in the U.S. could rise more than 30 percent in 2014,” according to Dallas News. “My single-family forecast for 2014 is pretty aggressive — it’s 822,000 starts,” Crowe said to Dallas News. “Which is roughly 200,000 starts more than what we will likely end up with in 2013.”
Dallas News also reported specifically on the Texas market. The NAHB forecasts that “by next year, Texas’ housing production will be back to ‘normal’ levels.” However, that is still below “the pre-recession peak” numbers.
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Rebuilding the West: Construction Considerations After the Smoke Clears
December 21, 2020 —
Richard Glucksman & Ravi Mehta – Chapman Glucksman Dean & RoebWildfires have always been a part of life in the western United States, but, in recent years, the frequency and size of wildfires have become staggering. Oregon, Washington, and—in particular—California face drier conditions, making wildfire season longer and more intense.
In these states, among others, prescribed burns (designed to reduce wildfire ignition sources and spreading potential) have been limited or cancelled altogether as the air pollution emitted by these burns may worsen the impact of COVID-19, a respiratory illness in its essence, as noted recently by
Science magazine. These circumstances, further compounded by the severe shortage of housing, have created a “perfect storm” in California, which has seen new and denser construction deeper within wildfire-prone areas, prompting a number of key legislative proposals that will impact the rebuilding process after the smoke clears.
The infamous 2018 Camp Fire in northern California made international headlines for decimating the town of Paradise. While the cause of the Camp Fire was determined to be faulty electrical transmission equipment, unusually dry conditions allowed the fire to spread to just over 150,000 acres, and the fire took 17 days to contain.
Then, five of the 20 largest wildfires in California history occurred during the 2020 wildfire season, according to the California Department of Forestry and Fire Protection (Cal Fire). The Camp Fire was eclipsed by the August 2020 Complex Fire, which is the largest wildfire ever recorded in the state, growing to just over one million acres in size until it was finally contained on Nov. 15.
Legislative Response
The Camp Fire and other 2018 wildfires displaced hundreds of thousands of people from their homes throughout California. The unprecedented scale of both the 2018 and the 2020 wildfire seasons in California has spurred legislators in Sacramento to draft a number of important bills that will undoubtedly impact rebuilding efforts.
California AB 38 was prompted by the 2018 California wildfire season and was signed into law by Gov. Gavin Newsom in October 2019. It requires the state fire marshal, the Office of Emergency Services, and Cal Fire to work together to develop and administer a comprehensive wildfire mitigation program, including "cost-effective structure hardening and retrofitting to create fire-resistant homes, businesses, and public buildings."
Unfortunately, the well-intentioned program has yet to be funded, and may be relying on federal hazard funds from the Federal Emergency Management Agency at a future date. In light of the crippling economic impact of the COVID-19 pandemic, federal funding is likely the only viable source for this important item of legislation.
California SB 182 would enact new building regulations in high fire-risk areas (as determined by the state fire marshal), including new standards for fire-resistive construction, evacuation routes, defensible space, and available water and firefighting resources. It would also prohibit municipalities from approving new construction in high fire-risk areas unless wildfire reduction standards are satisfied. In effect, the bill would discourage new construction in high fire-risk areas.
After passing through both legislative houses, Newsom vetoed the bill, citing its negative impact on the state's strained supply of affordable housing. However, the bill is likely to be revisited in the 2020-2021 legislative session.
California AB 1516 is a comprehensive bill that would:
- Create new defensible-space requirements for both new and existing construction in high fire-risk areas.
- Create a grant-assistance program for fire-prevention education, inspections, and technical assistance.
- Direct Cal Fire to develop vegetation management recommendations to minimize flammability.
Additionally, the bill would allow insurers providing course of construction coverage for a project to request, from the owner, municipal certification that the structure to be built complies with existing and new building standards. Newsom vetoed this bill, cautioning that a "one size fits all" approach to wildfire management may not be appropriate, given that each individual community's needs differ.
California AB 2380 focuses on the development of standards and regulations for a relatively new and growing phenomenon: the rising use of private firefighting personnel, particularly by wealthy homeowners. Several prominent and well-known carriers offer homeowners-insurance policies that provide for private firefighting personnel, as well as preventative services (wildfire hazard inspections and clearing defensible space), and expected post-incident services (clean up and removal of fire retardant and similar substances).
AB 2380 was signed into law by Newsom at the tail end of the 2018 wildfire season, and it now requires Cal Fire, the governor's Office of Emergency Services, and the board of directors of the FIRESCOPE Program (designed to coordinate firefighting resources among different agencies) to develop standards and regulations for privately contracted fire fighters.
Housing Shortage and New Construction
These legislative efforts are underscored by the worsening housing crisis, which has both strained existing supply and increasingly pushed new construction into areas known as the Wildland Urban Interface (WUI).
WUI areas are designated as either "interface" or "intermix:” Interface WUI areas have little to no wildland vegetation, but are near large wildlands. By contrast, in intermix WUI areas, structures are mixed with wildland vegetation.
A recent study by the U.S. Forest Service found that, as expected, WUI areas are the hardest hit by wildfires. However, the study also found that, contrary to popular belief, wildfires cause greater damage in interface WUI areas than intermix WUI areas- in other words, wildfire damage is greatest where there is little to no wildland vegetation. The study concludes that wildfires in WUI areas are fueled more by human-made fuels as opposed to natural vegetation. These human-made fuels include building materials and landscaping.
It may not come as a surprise that a growing body of scientific literature has ascribed more severe and frequent wildfires to climate change. However, what may be less appreciated is the profound impact of building in the WUI. By 2050, an estimated one million new homes are projected to be built in California WUI areas.
In light of this, as well as the recognition that wildfire risk is determined, in large part, by construction standards and the fire resistivity of materials as opposed to natural vegetation, California has developed a special building code for WUI areas: Chapter 7A of the California Building Code- Materials and Construction Methods for Exterior Wildfire Exposure. California is one of the few states to have a unique building code for WUI areas, and, in light of the recent wildfires, California officials are developing stricter WUI building standards.
The constituents of State Sen. Bill Dodd in Napa County and surrounding areas have faced some of the state's most devastating wildfires. Dodd is at the forefront of significant fire-related legislation, and was responsible for the passage of the Insurance Adjuster Act of 2019, which sets regulations for insurance-claim adjusting in emergencies.
Dodd also spearheaded the passage of SB 190, which was enacted in late 2019. The law requires, among other things, the state fire marshal to develop suitable materials and products for building in WUI areas with respect to exterior wall siding and sheathing, exterior windows, doors and skylights, vents, decking, treated lumber and ignition-resistant materials, and roofing materials. The state fire marshal's office found that roofing material is among the most important factors in a structure's fire resistivity, and slate, metal, and tile roofs have the highest fire resistance rating of "A:”
As of July 1, 2021, wood-shake roofs will no longer be allowed by the California Fire Code. The state fire marshal also cites non-combustible siding as an important building element.
Wildfire-Resistant Construction
A recent study prepared by Headwaters Economics and commissioned by the U.S. Forest Service, WR Foundation, and Insurance Institute for Business & Home Safety analyzed cost differentials between traditional construction and wildfire-resistive construction as they relate to the four most fire-critical assemblies of a structure: roofs, exterior walls (including windows and doors), decks, and landscaping. Wildfire-resistant roofing, vents, fascia, and gutters were estimated to cost about 27 percent more than traditional components. However, the wildfire-resistant roofing materials feature lower maintenance requirements and longer lifespans.
Wildfire-resistant exterior walls were estimated to cost 25 percent less than traditional components, due in large part to the substitution of true wood siding with fiber cement siding.
Wildfire-resistant decking involves the use of composite boards, foil-faced bitumen tape on support joists, and the creation of non-combustible space beneath decking. This type of construction was estimated to cost approximately 19 percent more than traditional decking construction. Wildfire-resistant landscaping has the most significant cost difference as compared to traditional landscaping construction, with the former costing about double the latter. Landscaping fabric can minimize the growth of weeds and thus reduce fire hazard, as does the use of rocks instead of mulch.
While certain components of fire-resistant construction may have increased costs, the benefits far outweigh these increases: longer life cycles and less maintenance of the components, and, most importantly, greatly increased fire resistivity of the structure itself and thus its life cycle.
As construction in WUI areas is expected to grow substantially in the coming years, so too are fire-resistive construction standards and material requirements. These standards and requirements are part and parcel of a more comprehensive and deliberate set of land use planning, vegetation management, and emergency-response regulations and policies that California will develop by necessity to meet the growing demand for housing in WUI areas, and also to rein in the staggering costs of wildfire suppression. Thus, construction in WUI areas, and, to a lesser degree, in non WUI areas, will be subject to more exacting standards in the years to come.
As the science of wildfire prevention and suppression advances, so too will the technological innovations that will allow for safer, longer-lasting and ecologically sensitive construction. As in many other fields, California is expected to emerge as a leader in wildfire resistant building and material requirements, and will undoubtedly play a key role in shaping fire policy throughout the United States.
Richard Glucksman is a partner, and Ravi Mehta is senior counsel, at Chapman Glucksman Dean & Roeb. rglucksman@cgdrlaw.com; rmehta@cgdrlaw.com
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Umbrella Policy Must Drop Down to Assist with Defense
May 12, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe court determined that an umbrella carrier was obligated to assist the general liability insurer in defending the insured. Am. States Ins. Co. v. Insurance Company of the State of Pennsylvania, 2016 U.S. Dist LEXIS 38128 (E.D. Cal. March 23, 2016).
Sierra Pacific Industries obtained rights to timber harvesting operation on a parcel of land in northern California. Sierra hired Howell's Forest Harvesting to perform certain timber harvest operations under the terms of a logging agreement. The logging agreement required Howell to obtain a CGL policy and to name Sierra as an additional insured.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Scott Saylin Expands Employment Litigation and Insurance Litigation Team at Payne & Fears
September 23, 2024 —
Payne & Fears LLPScott Saylin has joined Payne & Fears LLP as a Law Clerk in the firm’s Employment Litigation Group and Insurance Litigation Group. Before his time at Payne & Fears, Scott served as a law clerk for Cascadia Healthcare in Boise, Idaho.
“We are pleased to welcome Scott Saylin back to the firm. He was with us as a summer associate before completing his final year of law school at George Washington University,” said Amy Patton, the group’s co-chair. “Scott has fantastic potential to develop into an excellent litigator and will be an asset to our team.”
Get to Know Scott
What activities do you enjoy outside of work?
Pickle ball, long walks, beach trips, cooking, watching the Lakers games, and playing the guitar & piano.
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Payne & Fears LLP
25 Days After Explosion, Another Utility Shuts Off Gas in Boston Area
October 30, 2018 —
Johanna Knapschaefer - Engineering News-RecordThree hundred thirty-nine homes in Woburn, Mass., were without power on Oct. 8 after National Grid shut off gas meters following the inadvertent over-pressurization of the natural gas line on Oct. 8, according to the Woburn Fire Dept.
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Johanna Knapschaefer, ENRENR may be contacted at
ENR.com@bnpmedia.com
Wendel Rosen’s Construction Practice Group Receives “Tier 1” Ranking by U.S. News and World Reports
November 10, 2016 —
Garret Murai – California Construction Law BlogWendel Rosen’s Construction Practice Group has received a “Tier 1” ranking by U.S. News and World Reports in its 2017 Best Law Firms rankings and the firm as a whole has been named one of the “Best Law Firms.” This is the fourth consecutive year that Wendel Rosen’s Construction Practice Group has achieved a “Tier 1” ranking.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
