Settlement Reached in California Animal Shelter Construction Defect Case
May 13, 2014 —
Beverley BevenFlorez-CDJ STAFFA construction defect case involving an animal shelter in Healdsburg, California has settled after two years of litigation, according to The Press Democrat. The $3.5 million, 7,500-square foot building had been “built largely with a behest from the estate of the late vintner Rodney Strong and his wife, Charlotte.” However, “shortly before the facility could be completed in late 2011, general contractor Syd Kelly went bankrupt. Unpaid sub-contractors filed liens for payment against the Healdsburg Animal Shelter, which in turn alleged construction and design defects in the building.”
The Press Democrat reported that “[t]he most visible signs of problems were cracks in the cement foundation.” Robert Wilkie, the Healdsburg Animal Shelter board’s secretary-treasurer, stated that the shelter is “perfectly structurally viable and a rather attractive building” and that “the defects that make it not usable today can be mitigated in a variety of different ways.”
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Discussing Parametric Design with Shajay Bhooshan of Zaha Hadid Architects
May 10, 2017 —
Aarni Heiskanen - AEC Businessobotics, 3D printing, and digital fabrication—these evolving technologies are changing how we design and construct. Looking into the future can surprisingly cause us to rediscover history, as I learned when discussing parametric design with Shajay Bhooshan.
During the AEC Hackathon Munich in April 2017, I became acquainted with Shajay Bhooshan, associate at Zaha Hadid Architects. Shajay showed me designs that were intriguingly reminiscent of natural forms but completely modern in expression. He explained how these lightweight structures had been digitally designed and constructed with minimal use of material. One of the examples he shared was a large shell structure that consisted of aluminium elements that could be assembled and dismantled easily.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
info@aepartners.fi
The Condominium Warranty Against Structural Defects in the District of Columbia
July 24, 2023 —
Nicholas D. Cowie - Cowie Law GroupTHE CONDOMINIUM WARRANTY AGAINST STRUCTURAL DEFECTS
Condominium developers in Washington DC are required by statute to warrant against structural defects in residential condominiums. District of Columbia Condominium Act (“DC Condo Act”) § 42-1903.16(b). The warranty applies to both condominium common elements and each condominium unit. It requires a developer to repair structural defects, including any resulting damage to the condominium caused by a common element structural defect. DC Condo Act § 42-1903.16(a-1)(2). The statute creating this warranty is called the “Warranty Against Structural Defects,” contained in the DC Condo Act § 42-1903.16.
“Structural Defects” Defined
The warranty applies to “structural defects,” which are very broadly defined to include many types of construction defects. Structural defects are not just limited to defects in the supporting structure of the building. Rather, a structural defect can be any condition that:
“(A) Reduces the stability or safety of unit or common elements below standards commonly accepted in the real estate market,” or
(B) Restricts the normally intended use of all or part of the common elements of a unit and which requires repair, renovation, restoration, or replacement to serve the purpose for which it was intended.”
DC Condo Act § 42-1903.16(j)(6).
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Nicholas D. Cowie, Cowie Law GroupMr. Cowie may be contacted at
ndc@cowielawgroup.com
The Top 10 Changes to the AIA A201: What You Need to Know
May 24, 2018 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Musings, we welcome back Melissa Dewey Brumback. Melissa is a construction law attorney with Ragsdale Liggett in Raleigh, North Carolina. Aside from the fact that she is a UNC grad and fan, she’s okay!
In 2017, as it does every ten years, the American Institute of Architects (AIA) updated most of its standard form contract documents, including the A201 General Conditions. This cycle, the contract changes are evolutionary in nature, not revolutionary. Even so, it is crucial to know the changes to avoid making a fatal mistake that could cost you money on a construction project. In reverse order, the top 10 changes you need to know include:
# 10: Differing Site Conditions
Prior editions of the A201 provided that upon encountering differing site conditions, the Contractor was to promptly provide notice to the Owner and Architect, before the conditions are disturbed, and in no event later than 21 days after the conditions were first observed. A201–2017 shortens the time for notice from 21 to 14 days.
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Christopher G. Hill, The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
The Evolution of Construction Defect Trends at West Coast Casualty Seminar
May 03, 2018 —
Don MacGregor - Bert L. Howe & Associates, Inc.Twenty-five years ago. 1993. On January 23rd, Bill Clinton was sworn in as the 42nd President of the United States. The average cost of a gallon of gasoline was $1.16, a movie ticket cost $4.00, and the average cost of a new home was $113,200.00.
1993 also marked the first of what would be a quarter century of annual seminars hosted by West Coast Casualty Service, and provided to the combined professionals within the construction defect community. As the seminar has grown both in attendance and prominence within this community under the watchful stewardship of David and Coral Stern, much has changed both with regard to the content of the seminar and the climate within which it was presented. A quick look at the topics addressed over the past 25 years of the Construction Defect Seminar provides one with a veritable history of construction defect litigation and insurance coverage trends across the United States and beyond.
While the first seminar was hosted in 1993, my first attendance didn’t occur until 1999, and the first time I was honored to be a panelist would have to wait until 2007. In the subsequent years, I’ve had the opportunity to sit on panels an additional three times, and each one I gained rare and valuable insights into the construction defect community, its willingness to challenge itself, and the amazing professionals we all have the distinct pleasure of working with every day (and whom we sometimes take too much for granted).
In the mid to late 90’s, topics at the seminar included such subjects as the Montrose Chemical Corp v. Superior Court decision (Montrose) regarding a carrier’s duty to defend and the subsequent Stonewall Insurance case that examined the duty to indemnify in the context of construction defect claims. The California Calderon Act of 1997, laying out the roadmap for HOA’s filing construction defect lawsuits was also a topic of discussion and debate within the West Coast “arena.”
The new millennium saw the landmark Aas v. William Lyon decision, which disallowed negligence claims for construction defects in the absence of actual resultant damage. This was followed by Presley Homes v. American States Insurance wherein the court ruled that a duty to defend applies where there is mere potential for coverage and the duty to defend applies to the entire action. Each of these bellwether decisions was addressed contemporaneously by panels at the West Coast seminar, contemporaneously bringing additional dialog to the CD community, from within the community.
2002 brought what has become the defining legislation in California regarding construction defect litigation and a builder’s right to repair. Senate Bill 800 (SB800), and its subsequent codification as Title 7, Part 2 of Division 2 of the California Civil Code, Sections 895 through 945.5 would become the defining framework for similar legislation across the United States. During the course of its drafting, movement through the legislature, and final adoption in January of 1993, many of the questions raised and debated in committees in Sacramento, had already been and were continuing to be addressed by panelists at the West Coast Seminar. How does SB800 work with Calderon? How does it affect the prior Aas decision? What now constitutes a defect, and what are timeframes established within the complex pre-litigation process? Open the pages of the 2002 – 2004 seminar invitations and you’ll see panels comprised of the finest members of the insurance law and coverage communities addressing those very questions (and more)!
As the first decade of the new century drew to a close, a brief review of the WCC invitations from that period suggests a trend towards programmatic analyses of key themes selected for the seminar. In 2008, my second opportunity as a guest speaker, topics included a review of the state of construction defect litigation in a post-SB 800 environment. Panelists offered retrospective insight into the state of right to repair statutes in multiple states, while others offered a glimpse at where the industry might be headed, as similar legislation was enacted across the country. As always, pertinent court decisions bearing on construction defect, both in California, and elsewhere were given unique perspective and additional clarity by multiple panels of gifted speakers. In 2009, claims and coverage were examined from multiple unique perspectives, including that of plaintiff, the policyholder, and the insurer. Wrap policies and the gaps in due to self-insured retention obligations were examined.
As we rapidly approach the end of the second decade of the 21st Century, West Coast Casualty’s Construction Defect Seminar continues to lead the construction defect community as the premier source for information and peer dialog on all matters relating to construction law, coverage, and emerging trends. In 2017, the Seminar tackled such broad subjects as the role of women in the construction industry, claims management, and risk management, challenges raised by wrap versus non-wrap litigation, and the emergent trend of apartment to condo conversions (and the attendant coverage challenges).
This month, beginning on May 16th at the Disneyland Resort, in Anaheim California, America’s largest Construction Defect event kicks off its 25th Anniversary celebration. As has been every year since 1993, the seminar invitation promises insurance, legal, and industry professionals an exciting and informative array of salient and timely panel topics, as well as a stellar faculty of gifted panelists. If this year’s seminar is anything like the past 25 years, this edition of West Coast Casualty’s Construction Defect Seminar will not only be informative and educational, but also a promise for another 25 years of peerless service to the construction defect community.
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Residential Contractors, Be Sure to Have these Clauses in Your Contracts
December 23, 2023 —
Christopher G. Hill - Construction Law MusingsI have often “mused” on the need to have a good solid construction contract at the beginning of a project. While this is always true, it is particularly true in residential contracting where a homeowner may or may not know the construction process or have experience with large scale construction. Often you, as a construction general contractor, are providing the first large scale construction that the homeowner has experienced. For this reason, through meetings and the construction contract, setting expectations early and often is key.
As a side note to this need to set expectations, the Virginia Department of Professional and Occupational Regulation (DPOR) and the Virginia General Assembly require certain clauses to be in every residential construction contract. DPOR strictly enforces these contractual items and failure to put them in your contracts can lead to fines, penalties and possibly even revocation of a contractor’s license.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
The Right to Repair Act Isn’t Out for the Count, Yet. Homebuilders Fight Back
October 02, 2015 —
Garret Murai – California Construction Law Blog“[I]t ain’t how hard you hit; it’s about how hard you can get hit, and keep moving forward. How much you can take, and keep moving forward. That’s how winning is done. . . .” – Sylvester Stalone as Rocky Balboa in Rocky Balboa.
Ding, ding.
The Little Case That Roared
Two years ago we wrote about a case that caused an uproar in the homebuilding industry – Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC, 219 Cal.App.4th 98 (2013) – in which the California Court of Appeals for the Fourth District held for the first time that the Right to Repair Act does not provide the exclusive remedy for construction defect claims involving “actual,” as opposed to “economic,” damages in new residential housing.
It was a blow to the homebuilding industry who back in 2002, following a wave of construction defect lawsuits involving new residential housing, lobbied the State Legislature for the Right to Repair Act which gave homebuilders an opportunity to repair defects before being sued in court.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Delays Caused When Government (Owner) Pushes Contractor’s Work Into Rainy / Adverse Weather Season
January 13, 2020 —
David Adelstein - Florida Construction Legal UpdatesThere are a number of horizontal construction projects where a contractor’s sequence of work and schedule is predicated on avoiding the rainy season (or certain force majeure events). The reason is that the rainy season will result in delays due to the inability to work (and work efficiently) during the adverse weather (including flooding caused by the weather). If the work is pushed into the rainy season, is such delay compensable if the government (or owner) delayed the project that pushed work out into the rainy season? It very well can be.
For example, in Meridian Engineering Co. v. U.S., 2019 WL 4594233 (Fed. Cl. 2019), a contractor was hired by the Army Corps of Engineers to construct a flood control project for a channel in Arizona. Due to delays, including those caused by the government, the project was pushed into the monsoon season, which caused additional delays largely due to flooding caused by the heavy rain. One issue was whether such delays were compensable to the contractor – the government raised the argument that the contractor assumed the risk of potential flooding from the rainy season. The Court found this argument unconvincing:
[The contractor’s] initial construction schedule planned for a completion of the channel invert work, a necessary step in protecting the site from flooding, to be completed by late June 2008…[M]any issues arose in the project’s early stages that led to cumulative substantial delay, including those caused by the government’s failure….The government cannot now claim that [the contractor] assumed the risk of flooding from monsoon season when the government was largely responsible for [the contractor’s] inability to complete the project prior to the beginning of the monsoon season. Simply put, the government cannot escape liability for flood damages when the government is responsible for causing the contractor to be working during the flood-prone season.
Meridian Engineering, 2019 WL at *7 (internal citations omitted)
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
