COLUMBUS OHIO BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Few Homes Available to Reno Buyers, Plenty of Commercial Properties

January 22, 2013 — CDJ STAFF
Saying that "new home inventory does not exist," Mark Krueger of ArchCrest Commercial Partners tells the Reno Gazette Journal that this had lead to a problem, in that there are no homes for prospective buyers in the Reno and Sparks area. Adding to the problem is that investors are buying up resale homes with the intent of selling them at a profit later, which adds to the scarcity of available homes. While the residential market is suffering from not enough homes to satisfy buyers, there are ample commercial properties. As a result, there are no plans for any additional retail, office, or industrial projects in the Reno area for 2013. Vacancy rates are expected to fall only slightly to 12.3% for industrial properties and 17.7% for retail properties. Read the court decision
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Houston Office Secures Favorable Verdict in Trespass and Nuisance Case Involving Subcontractor’s Accidental Installation of Storm Sewer Pipe on Plaintiff’s Property

June 12, 2023 — Lewis Brisbois Newsroom
Houston, Texas (May 26, 2023) - Houston Partners Joelle Nelson and Matt Begley secured a defense verdict on behalf of a gasoline services company following a four-day trial in the 284th District Court of Montgomery County, Texas. In this case, Lewis Brisbois represented a client who hired a contractor to install a storm sewer line to mitigate flood risks to the client’s property. The contractor, however, deviated from the engineering plans and installed the storm sewer line on a neighboring property owned by the plaintiff. The storm sewer line then remained on the plaintiff’s property for five years while the parties attempted to negotiate potential solutions to the situation. The plaintiff refused multiple reasonable settlement attempts and ultimately sued the client and the contractor for continuous trespass and private nuisance. The contractor’s carrier denied coverage, making the client the target defendant. The matter proceeded to trial. Read the court decision
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Reprinted courtesy of Lewis Brisbois

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Anti-Concurrent Causation Clause Bars Coverage for Pool Damage

February 23, 2016 — Tred R. Eyerly – Insurance Law Hawaii
Relying upon the policy's anti-concurrent causation clause, the Illinois Court of Appeals affirmed the trial court's ruling that there was no coverage for a pool that popped out of the ground. Bozek v. Erie Ins. Group, 2015 Ill. App. LEXIS 940 (Ill. Ct. App. Dec. 17, 2015). Following a rainstorm, the insureds reported damage to the swimming pool to Erie. An investigation determined that the heavy rain saturated soils around the pool. This created a significant uplift hydrostatic pressure. The weight of the water in the pool typically prevented the uplift forces, but the pool had been emptied to clean debris making it susceptible to uplift. The pool had a pressure relief valve to prevent uplift, but it was not working properly. As a result, the pool was damaged to the point that it had to be replaced in its entirety. The heaving of the pool also damaged the concrete slab around the pool, which also had to be replaced. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Georgia Federal Court Says Fact Questions Exist As To Whether Nitrogen Is An “Irritant” or “Contaminant” As Used in Pollution Exclusion

May 20, 2019 — Lawrence J. Bracken II, Michael S. Levine & Alexander D. Russo - Hunton Andrews Kurth
The Southern District of Georgia recently ruled that Evanston Insurance Company is not entitled to summary judgment on whether its policies’ pollution exclusion bars coverage for the release of nitrogen into a warehouse. The case stems from an incident at Xytex Tissue Services, LLC’s warehouse, where Xytex stored biological material at low temperatures. Xytex used an on-site “liquid nitrogen delivery system” to keep the material properly cooled. This system releases liquid nitrogen, which would vaporize into nitrogen gas and cool the biological material. On February 5, 2017, a Xytex employee, Deputy Greg Meagher, entered the warehouse to investigate activated motion detectors and burglar alarms. Deputy Meagher was overcome by nitrogen gas and died as a result. Following Deputy Meagher’s death, his heirs filed suit against Xytex and other defendants. Evanston denied coverage based on the pollution exclusion in its policy. Evanston then brought a declaratory judgment action to confirm its coverage position. In denying Evanston’s summary judgment motion, the Southern District of Georgia reasoned that the type of injury sustained is essential in analyzing whether the pollution exclusion applies. Specifically, Xytex argued, and the court agreed, that the underlying lawsuit alleged that the bodily injury was caused by a lack of oxygen, not exposure to nitrogen. The court also distinguished prior decisions, explaining that injury caused by a lack of oxygen is not a contamination or irritation of the body in the same way as injury resulting from exposure to carbon monoxide or lead. The court also found that Xytex “reasonably expected that liability related to a nitrogen leak would be insured.” Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Lawrence J. Bracken II, Michael S. Levine and Alexander D. Russo Mr. Bracken may be contacted at lbracken@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Russo may be contacted at arusso@HuntonAK.com Read the court decision
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Don’t Waive Your Right to Arbitrate (Unless You Want To!)

October 19, 2017 — David Adelstein - Florida Construction Legal Updates
Does your construction contract require you to arbitrate (instead of litigate) disputes arising out of the contract? If so, and you want to arbitrate, you do NOT want to do anything inconsistent or adverse with your right to arbitrate. Arbitration can be waived and you do not want arbitration to be waived if you believe this is the best forum to resolve your construction dispute. For instance, actively participating in a lawsuit through the prosecution or defense of issues in the lawsuit is certainly inconsistent with your right to arbitrate. This will result in a waiver of your right to compel arbitration. In a non-construction dispute—a dispute involving a law firm and its former partner—the law firm sued the partner. Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly D2165b (Fla. 2d DCA 2017). There was a partnership agreement that required disputes to be resolved by arbitration. The law firm sued the partner claiming he violated a previously entered employment agreement that did not require arbitration. When the partner counterclaimed, the law firm claimed that the counterclaim must be compelled to arbitration because the counterclaim arose out of the partnership agreement that required arbitration. Guess what? The trial court actually compelled the counterclaim to arbitration! Crazy! Clearly, any employment agreement and partnership agreement were intertwined such that the dispute would involve the same set of facts and any claims would have a significant relationship to the partnership agreement. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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No Coverage for Subcontractor's Faulty Workmanship

November 28, 2022 — Tred R. Eyerly - Insurance Law Hawaii
Finding faulty workmanship that did not cause property damage beyond the subcontractor's work, the court found there was no coverage under the CGL policy. Middlesex Ins. Co. v. Dixie Mech., Inc., 2022 U.S. Dist. LEXIS 175190 (N. D. Ga. Sept. 27, 2022).  The case involved a construction project on Elba Island, Georgia. IHI E&C International Corporation (IHI) filed suit against Robinson Mechanical Contractors ("Robinson") for faulty construction work, including a pipe rack and process module installation. The pipe racks allegedly contained defective welds. Robinson filed a third-party complaint against Patriot Modular, Inc. (Patriot), Robinson's subcontractor, for faulty work for IHI. Finally, Patriot filed a fourth-party complaint against Dixie Mechanical, Inc. (Dixie), alleging it subcontracted with Dixie to perform fabrication, welding, testing, and inspection of pipes under Patriot's subcontract with Robinson. Patriot contended that to the extent it was found liable to Robinson for any defective work, delays or breaches of contract for Dixie's work, Patriot was entitled to recover such amounts from Dixie. In this case, Dixie's insurer, Middlesex Insurance Company, sought a declaration that it had no duty to defend or to indemnify Dixie. Middlesex contended that the claims of faulty workmanship in the underlying complaints constituted neither an "occurrence" nor "property damage." 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

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Contractors: Revisit your Force Majeure Provisions to Account for Hurricanes

September 20, 2017 — David Adelstein - Florida Construction Legal Updates
We now know and can appreciate the threat of hurricanes. Not that we did not appreciate the reality of hurricanes–of course we did–but Hurricane Harvey and Hurricane Irma created the type of actual devastation we fear because they hit close to home. The fear came to life, creating panic, anxiety, and uncertainty. It is hard to plan for a force majeure event such as a hurricane because of the capriciousness of Mother Nature. But, we need to do so from this point forward. No exception! And, I mean no exception!! A force majeure event is an uncontrollable event that cannot be anticipated with any degree of definitiveness. The force majeure event will excusably delay or hinder performance obligations under a contract. One type of force majeure event is a hurricane—an uncontrollable and unforeseen act of Mother Nature. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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Construction Termination Issues Part 5: What if You are the One that Wants to Quit?

August 21, 2023 — Melissa Dewey Brumback - Construction Law in North Carolina
Architects and Engineers are sometimes pleasantly surprised to find out that they, also, can terminate those crazy, hard to deal with Owners—at least, if the Owners fail to make payments as required. You can also terminate for Owner delays to the work, or where you think the contractor should be fired but the Owner disagrees. Again, the standard 7 days written notice is required. (See B101 §9.4). Do you have to walk off the job if they are not paying you? No—you could exercise the smaller remedy of suspending services (with 7 days written notice) until payments are caught up or the contract performance is corrected by the Owner. (See B101 §9.1). Suspension rather than outright termination is a softer approach when working with an owner you do not want to burn (too many) bridges with. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

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