Does Stricter Decertification Mean More “Leedigation?”
August 04, 2015 —
Christopher G. Hill – Construction Law MusingsRecently, my friend and fellow construction attorney/consultant, Chris Cheatham (@chrischeatham) posted the news that USGBC will be more stringent on the de-certification front. This statement relates to the continued energy performance of LEED certified buildings and increases the likelihood that energy performance (as opposed to mere reporting) could lead to de-certification.
I have discussed on several occasions the potential legal risks relating to green building. One of the big potential sources for such litigation (or “leedigation” as coined by Mr. Cheatham) is the possible de-certification of a previously certified building. With this latest statement by USGBC the specter of such de-certification seems even stronger.
Couple this potential with the fact that anyone can challenge the certification of a building at any time and contractors, subcontractors and other construction professionals face potential liability for the performance of a building in ways well beyond their control.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Sustainability Is an Ever-Increasing Issue in Development
November 21, 2022 —
Scott L. Baker - Los Angeles Litigation BlogBusinesses must be open to change. It is essential to survive in the business world, regardless of the industry. This goes hand-in-hand with the necessity to change along with consumer needs and values as well.
With the increasing emphasis on sustainability across industries, many businesses have had to make their processes and products more environmentally friendly. However, in terms of real estate construction, there are some challenges.
SUSTAINABILITY IN NEW CONSTRUCTION IS NOW A MATTER OF LAW – NOT JUST A PREFERENCE
The push to become greener comes from many fronts. Property owners, potential buyers and even lawmakers all expect the real estate industry to go greener. For example, homeowners and businesses often want their properties to meet their personal values of sustainability.
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Scott L. Baker, Baker & AssociatesMr. Baker may be contacted at
slb@bakerslaw.com
Additional Insured is Loss Payee after Hurricane Damage
October 01, 2024 —
Tred R. Eyerly - Insurance Law HawaiiConstruing the policy language, the federal district court found that the policy's additional insured was the loss payee for damage caused by Hurricanes Laura and Delta. TCP Ryan St. LLC v. Weschester Surplus Lines Ins. Co., 2024 U.S. Dist. LEXIS 125529 (W.D. La. July 16, 2024).
Hurricanes Laura and Delta caused damage to TCP Ryan Street, LLC's (TCP) property. Westchester had issued a policy to MRI Heritage Brand, Inc. (MRI). MRI, as lessee, was obligated pursuant to the lease terms to "purchase and maintain . . . a policy of fire, extended coverage, vandalism and malicious mischief (or 'all risk') insurance coverage on all real property situated at the Lease Premises." The lease also required MRI to obtain coverage under a policy naming only the landlord as the sole insured and provided that the proceeds would be payable to the landlord.
The policy provided that no entity was covered unless Westchester had received identifying information for the entity during the application process or the entity was added by endorsement.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Bert L. Howe & Associates Celebrates 21-Year Success Story
July 31, 2014 —
Beverley BevenFlorez-CDJ STAFFJuly 31, 2014 marks the 21st anniversary of Bert L. Howe & Associates, Inc. (BHA). The company commenced operations on this date 21 years ago today. During the last two decades, the landscape of the construction defect industry as a whole has shifted significantly. In the early nineties, the industry consisted substantially of multi-family residential projects, and construction defect litigation was a regional concern focused primarily on Southern California.
In the intervening 21 years, the construction defect industry has become a nationwide concern with the majority of states adopting builders’ right to repair legislation. To mark the 21st anniversary of BHA, we spoke with some of the key personnel to get some insights and impressions of how the industry and the company have evolved throughout the years.
On July 31st, 1993, Bert formed the company after a long career as a general contractor. He had become involved in the construction forensics field in 1988, providing general construction investigation and expert support services to legal professionals handling multifamily residential cases.
James Howe, the firm's current President and Chief Operating Officer, joined the company in November 1993. Previously, he had been recruited by The New York Times and served as operations manager for their Orange County, Los Angeles, and Inland Empire operations.
In January of 1994, operations were relocated to a small, 1,100-square foot, two-story walk-up in Anaheim Hills, California. James stated that they purchased furniture from Plummers, and he and Bert carted all of the furniture up the stairs and assembled it themselves over the weekend.
Immediately, they hired the first employee, Matthew J. Nardella, an architect and graduate from Cal Poly University, who also came to the firm with substantial construction and design experience.
Matt was scheduled to begin work on January 17th, 1994, the day of the Northridge earthquake. “I remember calling Bert,” Matt said. “‘Bert, is everything okay down there? Do you want me to come in?’ All of the news said freeways collapsed. I didn’t know what was going on with the roads,” Matt continued. “Bert’s like, ‘Yeah, nothing happened here, get over here.’ I said, ‘Okay, I’ll be there.’” Matt chuckled at the memory.
Even back in early 1994, Bert was in high demand as an expert witness. “He was everyone’s go-to-guy,” Matt Nardella stated. “The day a case was filed they would call him first.”
“He had a real desire,” Susan Howe, BHA’s Chief Executive Officer, said. “The primary way Bert worked on growing the business was by showing up, being prepared, and being full of ideas. If there was a problem or an issue, he would come up with a solution on how to handle it in the scope of what we were doing. He identified solutions and provided additional benefits to his clients. That’s how he grew the business, really. He grew each individual relationship.”
During that period, the type and scope of projects began to shift into a more diversified mix, including hotels, resorts, warehouses, storage facilities, restaurants, and more, though, at the time, BHA mainly provided expert witness support in construction defect cases involving attached housing developments, such as condominiums and townhomes.
Many of the other current key employees within the firm were hired during the mid-90s and continue with the firm today. Don MacGregor, John B. A. Mancini, and Jorge Porter were hired during this period. “The business was growing quickly and constantly from the moment I walked in the door,” Don MacGregor said, speaking of his early days with BHA. “Within just a few months of me being hired, the firm added six additional architects, engineers, and design professionals to meet client demands.”
Between 1995 and 1996, the company moved to a larger office (about 2,000 square feet), then added an additional 1,000 square feet of office space by adding on an adjoining unit. However, by 1997, James started looking for new, bigger office space. It was during this time that the firm’s current Chief Executive Officer joined the company.
Susan G. Howe left an executive position at a Newport Beach based business bank to focus her energy full time on the company's financial affairs and regulatory compliance issues.
When James walked in to what is now the firm’s Corporate Headquarters at 5415 E. La Palma in Anaheim Hills, it seemed enormous. At 5,500 square feet, it was twice the size of the modest current office. The space had previously been built out by American Express Travel Related Services.
In 1998, shortly after moving operations to Anaheim Hills, another key person in the BHA story joined the firm, Mark Chapman. "I remember interviewing Mark and feeling strongly that he was destined to become a recognized presence within this industry,” James Howe stated. “I was particularly intrigued with his dual credentials. Being a licensed professional engineer and a licensed general contractor provided the credibility he needed to speak to both civil engineering issues and general contracting or cost issues. This seemed like a win-win for the client. He was also a very strong negotiator coming in, and I respected that," James mused.
Mark recalled the recruitment process and his early discussions with James. "The job at BHA was different and intriguing enough to get me to make what ultimately turned out to be the right decision,” Mark stated. “I had been concerned with design for most of my career, but was interested in this highly specialized niche industry. I knew the industry existed, but it was still highly specialized at the time. I had no idea that I could make a career out of it. Nor did I realize that my skill set as an engineer and contractor was the perfect fit to handle the multi-faceted analysis that is sometimes required. The combination of design analysis, field work, meetings, and mediations turned out to be a refreshing career change.
"Working with Bert was a learning experience I will always remember and cherish,” Mark said. “He always said his door was open anytime I needed anything. When I did have a question, he would always take whatever time was needed to listen, think about it, and give me an answer. I was always impressed because not only did he always have an answer, it was always the right answer. Bert made me feel like family. I knew I had made it and gained his confidence when I walked into his office one day and asked his opinion and he simply said ‘You can handle it, I trust you.’ The past 16 years of my life have been the most rewarding personally and professionally. I owe it mostly to my experience at BHA, the Howe family's generosity, and my associates. It takes a great team to be successful. No one can do it by themselves.”
Soon enough, the once cavernous space was too small. The company was still growing, and arrangements were made to lease the adjoining unit, 5413, doubling the corporate office's footprint to a little over 12,000 square feet. James wondered if the firm would once again fill the new space: “Again, it seemed big at the time,” James said. “Somehow we filled it up, and now we’re busting out of it.”
John Springman joined BHA in June of 2000. John had worked with Bert throughout the years on several cases, John as the architectural expert and Bert as the general contracting/cost designee. They had worked so well together, that Bert spent a year or two recruiting him to join BHA.
By this time, Bert, Susan, and James had expanded their vision from only Bert as an expert witness, to BHA becoming a ‘multi-disciplinary’ firm with experts in differing fields. “At first, [Bert’s] primary form of testimony was cost estimating and standard of care for general contracting practices,” Susan said, “but he soon realized the value in developing a construction experts group comprising licensed architects, engineers, roofing and waterproofing experts, and building envelope specialists."
Susan explained how innovative the one-stop shop philosophy was back then. “[Bert] had not only to recruit John Springman and people like him, but we had to communicate the synergies, cost and productivity benefits to our existing client base, because it was innovative and different.”
However, it didn’t take long for BHA’s clients to reap the great benefits having access to a multi-disciplinary integrated support solution offered: “We were able to provide cost savings to our clients, because we were collecting the data and sharing it to all of the different disciplines within our own organization,” Susan said.
In the early 2000s, the projects began changing from condominium developer cases to single-family home cases. According to John, “The insurance industry started to write in exclusions for condominiums. Forced to go elsewhere for business, it went to single family homes.”
Also around this time, the Aas court decision changed the construction defect industry in California. The court ruled that you have to have damage to have a claim. “Just because a code wasn’t followed didn’t matter unless damage occurred from it,” John said. “It is under breach of contract and other things, but not negligence. Insurance covered negligence, so it took away insurance coverage. Then SB 800 [California’s Right to Repair Act] came about and took a lot of those things and brought them back in.”
While continuing to grow its California market, in 1999 BHA extended its reach into other regions beginning with Nevada and Arizona. By 2003, their reach extended to the east coast with satellite offices in Ohio, Kentucky, and South Carolina.
The types of projects BHA handled also diversified. BHA continued their work with production housing and condominiums and other attached housing, and they supplemented this work with cases involving high-rise and mid-rise buildings, hospitals, hotels, schools and universities, religious institutions, sprawling custom homes, retail complexes, as well as handling delay claims, premises liability, trip-and-fall cases, worker compensation files, and others.
Susan recalled one of BHA’s first international cases that involved a mining operation in Chile. “The core of it was construction defect, but our main job was design analysis and estimating on a really huge scale,” Susan said. The firm was engaged directly through AIG. “An adjuster there contacted Bert at the West Coast Casualty seminar, a few weeks later Bert and half of the office were in Santiago. It was a very memorable assignment; I remember the litigation part of the case was handled largely in the capital city of Santiago. But the mining operations were quite remote. Each of our employees had to undergo altitude testing prior to being performing site investigations at the mining and processing facilities.”
By 2010, BHA had grown to a staff of over forty associates, with satellite offices across the country to support the growing regional businesses. However, in September of 2011, BHA’s beloved founder and President Bert Howe passed away after suffering a heart attack.
While Bert’s presence is still missed by the associates and, most especially, his wife and son, the company was well-positioned to continue on. Susan explained that James for about five years before Bert’s death had been slowly deleveraging Bert from the business. “He was helping his father to be able to work less,” Susan stated. “And as a result of that, we had all these great people like Matt Nardella, John Springman, Mark Chapman, Brad Hughes, John Tolman, Charlie Miller, Jerry Miles, and others who had significant tenure with the firm. They had all worked very closely with Bert, and had really matured, and now they had a few extra gray hairs."
So what’s next for Bert L. Howe & Associates, Inc.? Susan sees greater technological changes, as well as diversification in the types of projects, and the ability to offer additional value added services to their clients.
James stated that BHA has the capability to competitively enter new markets providing a superior credibility, cost, and customer service proposition. “Leveraging from our smart office techniques, proprietary construction forensics technologies, and mature business processes, we could effectively go into any regional market as efficiently as any other company, more efficiently than most, and bring a great deal of value to clients with minimal capital investment in these various markets.”
James also sees more opportunities for career BHA employees who are ready to take on new responsibilities. “I would like to see, and I’m trying to create, new opportunities and challenges for people to continue to be upwardly mobile,” James said. “I am energized by the prospect of delivering additional value to clients, and providing additional opportunities for key people here to grow and improve their lives economically through the growth of the company."
BHA currently is comprised of sixty employees, serving clients throughout the U.S. with offices in Anaheim Hills, California; Sacramento, California; San Diego, California; Las Vegas, Nevada; Salt Lake City, Utah; Denver, Colorado; Phoenix, Arizona; Miami, Florida; Houston, Texas; and San Antonio, Texas.
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As Fracture Questions Remain, Team Raced to Save Mississippi River Bridge
September 06, 2021 —
Jim Parsons - Engineering News-Record"How is this bridge still standing?”
That was the initial reaction of Aaron Stover, Michael Baker International’s vice president and regional bridge practice lead, as he first studied images of a fractured tie beam that forced the May 11 emergency shutdown of the I-40/Hernando de Soto Bridge between Tennessee and Arkansas. Discovered by chance earlier in the day during MBI’s routine above-deck inspection, the fracture on the bridge’s eastbound span affected nearly half the cross-section of a 26-in. by 33-in. welded girder supporting one of the 50-year-old structure’s 900-ft-long, 100-ft-high arched navigation spans across the Mississippi River.
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Jim Parsons, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Delays in Filing Lead to Dismissal in Moisture Intrusion Lawsuit
September 09, 2011 —
CDJ STAFFThe Alabama Court of Civil Appeals has upheld a summary judgment in the case of Franklin v. Mitchell. Walter Mitchell, doing business as Southern Classic Construction built a new home for the Franklins. The Franklins moved into the home in October 2001. In April 2006 they discovered sagging floors in both the bathroom and kitchen. They contacted Mitchell who suggested the flooring might be defective. The Franklins spent eight months attempting to contact the flooring manufacturer.
In March 2007, the Franklins had the home inspected. The sagging was determined to be due to a loss of strength in the decking because of condensation from the air conditioning system. Air returns were not properly sealed and drawing moisture into the structure. There was mold on the decking and floor joints.
When Mitchell was contacted by the Franklins, he told them his one-year warranty had expired but had the HVAC subcontractor, Southern Mechanical Heating & Air (owned by Mitchell’s father, Jim Mitchell), look at the situation. SMHA replaced and braced subfloors. Later, they entered the crawl space to tape ducts, seal the air return, and insulate the air vent housing. The Franklins were not satisfied with the repairs, as not all the ducts were taped, nor were the air vent housings insulated.
Franklin complained to Walter Mitchell who again cited his one-year warranty. Jim Mitchell said he would not report complaints to his insurer, stating that the repairs were unnecessary, that the work had been done correctly in the first place, and it was only done at the request of Walter Mitchell.
In February 2009, the Franklins sued Walker Mitchell. Mitchell denied the claims, citing in part the statute of limitations. Mitchell also filed complaints against three subcontractors, including his father’s firm. Mitchell received a summary judgment as the case started after Alabama’s six-year statute of limitations.
The appeals court rejected the Franklin’s argument that the claim of damage did not start until they were aware it was due to a construction defect. The court noted that as Walter Mitchell was licensed as a “residential home builder, the statute the Franklins cite did not apply, as it concerns architects, engineers, and licensed general contactors.”
Nor did they feel that Mitchells’ claim that his warranty had expired were sufficient to override the statute of limitations, quoting an earlier case, “Vague assurances do not amount to an affirmative inducement to delay filing suit.” Their claim of subsequent negligent repairs was rejected because Mitchell did not direct the specific actions taken by his father’s firm.
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Wilke Fleury Attorneys Featured in 2021 Best Lawyers in America and Best Lawyers: Ones To Watch!
September 28, 2020 —
Wilke Fleury LLPWilke Fleury congratulates attorneys
David Frenznick,
Adriana Cervantes and
Dan Egan on their inclusion in the 2021 Edition of Best Lawyers in America!
Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 108,000 industry leading lawyers are eligible to vote (from around the world), and they have received over 13 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2021 Edition of The Best Lawyers in America©, 9.4 million votes were analyzed.
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Wilke Fleury
New Jersey Imposes New Apprenticeship Training Requirements
February 11, 2019 —
Joanna Masterson - Construction ExecutiveThe New Jersey Senate and Assembly approved a bill (A-3666) that requires construction businesses to certify participation in a U.S. Department of Labor-approved apprenticeship program in order to obtain or renew a public works contractor registration certificate. The DOL-approved program requirements apply to every classification of worker employed on a public works jobsite.
New Jersey businesses that don’t want to set up an in-house program can satisfy these mandates by participating in a trade association’s DOL-registered apprenticeship program.
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Joanna Masterson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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