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Still Going, After All This Time: the Sacketts, EPA and the Clean Water Act

September 13, 2021 — Anthony B. Cavender - Gravel2Gavel
On August 16, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling that the Idaho property of Michael and Chantell Sackett was a regulated wetlands under the then-controlling 1977 EPA rules defining “waters of the United States,” and that the Sacketts dredging and filling of their property was subject to regulation by the U.S. Army Corps of Engineers or EPA. EPA’s case, as it has been for many years, was based on 2008 EPA and Corps inspection reports and Justice Kennedy’s “significant nexus” test as the controlling opinion in the 2006 Supreme Court case, Rapanos v. United States. The Sacketts’ argument was that the text of the Clean Water Act, as interpreted by Justice Scalia and three other Justices, was controlling, but for several years, the Ninth Circuit has relied on Justice Kennedy’s opinion in these CWA controversies. The court’s opinion expressed considerable sympathy for the Sacketts as they negotiated the thicket of EPA’s regulatory processes, but it could not disregard circuit precedent. A few years ago, the Supreme Court ruled, in a unanimous decision, that EPA’s then extant administrative compliance orders were arbitrary and capricious. (See Sackett v. US, 566 US 120 (2015).) After that decision, the case was remanded to the federal district court, where it lingered for several more years. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

$6 Million in Punitive Damages for Chinese Drywall

November 27, 2013 — CDJ STAFF
Jeffrey and Elisa Robin earlier were awarded $1.1 million in compensatory damages in their lawsuit against Knauf Plasterboard, the Chinese company which manufactured allegedly tainted drywall used in the Robin’s Coconut Grove, Florida home. Now a jury has awarded the couple an additional $6 million punitive damages. The Robins’ lawyer, Victor Diaz, said it was “the best accomplishment of my legal career.” Read the court decision
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Reprinted courtesy of

Zoning Hearing Notice Addressed by Georgia Appeals Court

April 20, 2017 — David R. Cook Jr. - Autry, Hanrahan, Hall & Cook, LLP
The Georgia Court of Appeals recently addressed the requisite notice of zoning proceedings that ultimately requested in a zoning decision. The key question was whether, after a properly noticed planning meeting, additional notice was required before the board’s formal vote that occurred three months later. Read the court decision
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Reprinted courtesy of David R. Cook, Autry, Hanrahan, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

Angela Cooner Named "Top Lawyer" by Phoenix Magazine in Inaugural Publication

October 10, 2022 — Angela L. Cooner - Lewis Brisbois
Phoenix, Ariz. (September 7, 2022) – Phoenix Partner Angela L. Cooner was recently recognized for her work in Commercial Litigation by Phoenix Magazine in its inaugural list of Top Lawyers. Ms. Cooner was named a Top Lawyer after Phoenix Magazine partnered with research firm Data Joe to collect and tally online survey results from local practicing attorneys. The survey asks respondents to provide the names of up to three attorneys they deem the best in 39 legal specialties. After the votes are tallied and the nominees are confirmed to be members of Valley-based firms and in good standing, the top 10-20% of vote-getters in each category are named to the Top Lawyers list. Ms. Cooner is a member of Lewis Brisbois’ Construction and General Liability Practices. For more than two decades, she has managed an array of matters, including construction litigation, complex commercial litigation, professional liability cases, product liability issues, premises liability cases, and real estate litigation. Earlier this year, she was appointed vice-chair of the State Bar of Arizona’s inaugural Board of Legal Specialization Construction Defect Law Advisory Commission. Read the court decision
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Reprinted courtesy of Angela L. Cooner, Lewis Brisbois
Ms. Cooner may be contacted at Angela.Cooner@lewisbrisbois.com

Mandatory Arbitration Isn’t All Bad, if. . .

August 13, 2019 — Christopher G. Hill - Construction Law Musings
In the past week or so mandatory arbitration has been all the rage. From those that argue that arbitration is becoming more burdensome than litigation, to my friend and fellow construction attorney Scott Wolfe who gives great advice on how to make arbitration worth it again. You can place me in the camp of those that think that mandatory arbitration clauses of the type typically found in contracts can add a layer of expense that can be unnecessary. However, if an arbitration clause is carefully drafted, and properly used, these clauses an be helpful in assuring that the streamlining effect for which arbitration was created actually occurs. Because the contract is king in Virginia, these provisions can essentially create the rule of civil procedure used to resolve any dispute relating to the project. Anything from the number and method of appointing the arbitrators, to the ability to use attorneys, to the time between notice and arbitration hearing and whether mediation is a requirement, to the documents and other pre-arbitration exchanges can and should be specifically outlined. The construction contract can also state who decides between court or arbitration. This can be one party or both. The possibilities are almost endless. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Traub Lieberman Partner Lisa M. Rolle Obtains Summary Judgment in Favor of Defendant

April 19, 2021 — Lisa M. Rolle - Traub Lieberman
Traub Lieberman Partner Lisa M. Rolle obtained summary judgment in favor of defendant SRI Fire Sprinkler, LLC, a family-owned and operated fire sprinkler company which generally provides fire sprinkler installation, inspection, and maintenance services throughout the Northeast and New England. The judgment was determined pursuant to CPLR 3211(a)(5) on the grounds that Philadelphia Indemnity Insurance Company’s (Plaintiff) negligent construction claim accrued on the date when work was completed at the premises, not on the date of the incident as alleged in the Plaintiff’s complaint. In the underlying subrogation action, the Plaintiff commenced the action in subrogation of its insured, Bet Am Shalom Synagogue (Bet Am), to recover damages in excess of $173,390.86 which it allegedly paid to Bet Am for water damage cleanup and remodeling after certain sprinkler pipes froze and burst in the recently constructed wing of the Westchester synagogue on January 1, 2019 and January 7, 2019. The Plaintiff alleged that its subrogor, Bet Am, sustained interior water damage on the first floor and basement levels of the premises, including the carpets, drywall, insulation, bathroom, kitchen and appliances, dining room, hallways, closets, basement storage rooms and supplies, and basement classrooms. Read the court decision
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Reprinted courtesy of Lisa M. Rolle, Traub Lieberman
Ms. Rolle may be contacted at lrolle@tlsslaw.com

A Retrospective As-Built Schedule Analysis Can Be Used to Support Delay

May 23, 2022 — David Adelstein - Florida Construction Legal Updates
Delay claims are part of construction. There should be no surprise why. Time is money. A delay claim should be accompanied by expert opinions that bolster evidence that gets introduced. The party against whom the delay claim is made will also have an expert – a rebuttal expert. Not surprisingly, each of the experts will rely on a different critical path as to relates to the same project. The party claiming delay will rely on a critical path that shows the actions of the other party impacted their critical path and proximately caused the delay. This will be refuted by the opposing expert that will challenge the critical path and the actions claimed had no impact on the critical path (i.e., did not proximately cause the delay). Quintessential finger pointing! This was the situation in CTA I, LLC v. Department of Veteran Affairs, CBCA 5826, 2022 WL 884710 (CBCA 2022), where the government terminated the contractor for convenience and the contractor claimed equitable adjustments for, among other things, delay. The contractor’s expert relied on an as-built critical path analysis by “retrospectively creating updates to insert between the contemporaneous updates.” Id., supra, n.3. The government’s expert did not do a retrospective as-built analysis and relied on only contemporaneous schedule updates. Id. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Time is of the Essence, Even When the Contract Doesn’t Say So

January 11, 2021 — Christopher G. Hill - Construction Law Musings
Welcome to 2021! As often happens here at Construction Law Musings, the year starts with a few posts on notable construction law cases that dropped in the past year or so. Not only does this review hopefully help you keep up, but helps me keep up with the latest developments (one of the reasons why I keep blogging). The first of these cases is Appalachian Power Co. v. Wagman Heavy Civil, Inc. out of the Western District of Virginia federal court. In this case, Wagman Heavy Civil, Inc. (“Wagman”) and the Virginia Department of Transportation (“VDOT”) contracted for the design and construction of a highway interchange project (the “Project”). Wagman and the Appalachian Power Company (“APCO”) entered into a written contract (the “Written Contract”) for APCO to remove and relocate its utility structures (the “Work”) in order to facilitate construction for the Project. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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