Even Where Fraud and Contract Mix, Be Careful With Timing
April 12, 2021 —
Christopher G. Hill - Construction Law MusingsI have often discussed the limited circumstances under which a construction contract claim and a fraud claim can coexist. A recent case from the Western District of Virginia federal court demonstrates that care is necessary even in those limited circumstances.
In Fluor Fed. Sols., LLC v. Bae Sys. Ordinance Sys., the Court examined the question of a fraud statute of limitations under Virginia law. The basic facts found in the Complaint are these:
In 2011, the United States Army awarded BAE Systems Ordinance Systems Inc. a basic ordering agreement under which BAE was responsible for modernization projects at the Radford Army Ammunition Plant. This action stems from a subcontract between Fluor Federal Solutions LLC and BAE, under which Fluor agreed to design and construct a new natural gas boiler at the plant. Fluor has completed work on the project, and BAE has accepted that work. Nonetheless, Fluor claims that BAE has refused or failed to pay for the balance of the project costs. Fluor alleges that BAE received several changes to its prime contract from the Army but did not pass those changes along to Fluor until after BAE solicited a bid from Fluor and entered a contract with Fluor to build a temporary facility. Instead, BAE continued to misrepresent the scope of the project. Fluor alleges that the change in plans increased costs substantially, but that BAE withheld information about those changes so that it could solicit lower bids. Fluor alleges that it requested a copy of BAE’s prime contract on numerous occasions, but BAE failed to provide a copy of it. Instead, Fluor submitted a request under the Freedom of Information Act. It received a copy of BAE’s prime contract on Oct. 3, 2018.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Florida’s New Civil Remedies Act – Bulletpoints As to How It Impacts Construction
April 10, 2023 —
David Adelstein - Florida Construction Legal UpdatesThere has been much talk about Florida’s new Civil Remedies Act (
House Bill 837) that Governor DeSantis approved on March 24, 2023. As it pertains to construction, here is how I see it with key bulletpoints on the impact this new Act has on the construction industry:
- New Florida Statute s. 86.121 – This is an attorney’s fees statute for declaratory relief actions to the prevailing insured to determine insurance coverage after TOTAL COVERAGE DENIAL. (Note: A defense offered pursuant to a reservation of rights is not a total coverage denial.) This right only belongs to the insured and cannot be transferred or assigned. And the parties are entitled to the summary procedure set forth in Florida Statute s. 51.011 requiring the court to advance the cause on the calendar. The new statute does say it does NOT apply to any action arising under a residential or commercial property insurance policy. (Thus, since builder’s risk coverage is a form of property insurance, the strong presumption is this new statute would not apply to it.) Rather, the recent changes to Florida Statute s. 626.9373 would apply which provides, “In any suit arising under a residential or commercial property insurance policy, there is no right to attorney fees under this section.”
- Florida Statute s. 95.11 – The statute of limitations for negligence causes of action are two years instead of four years. This applies to “causes of action accruing after the effective date of this act.”
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
JAMS Announces Updated Construction Rules
June 21, 2021 —
JAMSIrvine, Calif. – JAMS, the largest private provider of
alternative dispute resolution (ADR) services worldwide, is pleased to announce it has revised and updated its
Construction Arbitration Rules & Procedures and
Expedited Construction Arbitration Rules & Procedures, effective June 1. These Rules were updated to reflect the latest developments and trends in
construction arbitration.
In response to the transition to virtual and hybrid proceedings, Rule 22 makes explicit the arbitrator’s full authority to conduct the hearing in person, virtually or in a combined form, as well as with participants in more than one geographic location. To support access to case documents throughout the proceedings, Rule 8 aligns electronic filing and service with the functionality of JAMS Access, a centralized, secure online case management platform.
Additional rules were created or revised to clarify and strengthen the authority of the arbitrator. Key changes include allowing an arbitrator to withhold approval of any intended change in party representation that could compromise the proceedings or the final award, to set a hearing without consulting a party that he or she reasonably believes will not participate and to permit a party to file a motion for summary disposition of a claim if the arbitrator believes that party has demonstrated the motion is likely to succeed.
About JAMS – Local Solutions. Global Reach.
Founded in 1979, JAMS is the largest private provider of alternative dispute resolution services worldwide. JAMS successfully resolves and manages business and legal disputes by providing efficient, cost-effective and impartial ways to overcome barriers at any stage of conflict. JAMS offers customized in-person, virtual and hybrid resolution services locally and globally through a combination of industry-specific experience, first-class client service, the latest technology and highly trained mediators and arbitrators.
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JAMS
Research Institute: A Shared Information Platform Reduces Construction Costs Considerably
October 26, 2017 —
Aarni Heiskanen - AEC BusinessA new Danish study shows how the use of a shared digital management and communication platform on large-scale construction projects leads to considerable cost reductions.
The Danish Building Research Institute conducted a six-month research project that studied the effects of using a specific IT concept during construction. The three case studies were:
1. The Maersk Tower, a 15-story, 42,700-square-meter extension to the Panum complex.
2. The Niels Bohr Building, a 52,000-square-meter new laboratory and academic building.
3. The Danish Defence’s Property Agency’s construction project portfolio (FES).
Each of them used GenieBelt as the shared IT platform. It was used for the progress management of a construction project portfolio, management of construction activities, and communication between the construction management team and contractors.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
info@aepartners.fi
With Wildfires at a Peak, “Firetech” Is Joining Smart City Lineups
October 21, 2024 —
James P. Bobotek - Gravel2Gavel Construction & Real Estate Law BlogThe
threat of extreme wildfires has doubled in the past 20 years, with almost 20,000 fires blazing across the United States in 2024 alone. These high-intensity fires can be deadly, expensive, and create lingering health and environmental consequences. While we are used to seeing firefighters on the frontlines, researchers hope that next-generation smart technology, augmented by artificial intelligence (AI), will also play a key role in battling these conflagrations. Many municipalities, particularly those near wildfire-prone forests, are beginning to incorporate fire-focused advances (or “firetech”) into their smart city ecosystems.
“Smart cities” are urban centers enhanced by utilities, emergency services,
traffic signals and more that are linked through information and communications technology. Though the concept can spark cybersecurity-related concerns, many locales are gradually implementing many different kinds of smart tech. Following the 2023 wildfire that devastated Maui, for example, Hawaii installed a network of
cloud-based fire and wind sensors that use AI to detect wildfires in real time. Smart tools like these can aid in predicting and discovering fires, streamlining emergency alert protocols, calculating vital analytics and improving firefighter safety. The National Fire Protection Association (NFPA) is
actively studying these innovations, particularly in terms of environmental (smart buildings or robotics), operational (communications) and personnel (PPE sensors or biometrics). Below are a few of the key technologies to watch in this emerging field:
- Smart Sensors. A total of 80 sensors (64 wildfire sensors and 16 wind sensors) were placed throughout Hawaii starting in March of 2024. Attached to existing utility poles, they detect heat in the air, and then engage AI and smart learning to distinguish smoke particles and gases produced by fires from those commonly found in Hawaii’s atmosphere—such as volcanic ash and ocean salt. Positioned in “strings,” the sensors “talk” to each other and send text messages to officials when they find a problem.
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James P. Bobotek, PillsburyMr. Bobotek may be contacted at
james.bobotek@pillsburylaw.com
When an Insurer Proceeds as Subrogee, Defendants Should Not Assert Counterclaims Against the Insured/Subrogor
June 14, 2021 —
Gus Sara - The Subrogation StrategistIn a subrogation action, one party is substituted to the rights and remedies of another with respect to a lawful claim. The substituted party (the subrogee) is legally able to pursue any right or seek any remedy that would be available to the subrogor regarding that claim. But can a defendant in a subrogation action assert any claim against the subrogee that it would have against the subrogor? In Federated Mut. Inc. Co. v. Kosciusko County, No. 3:20-CV-960, 2021 U.S. Dist. Lexis 88735, the United States District Court for the Northern District of Indiana considered whether a defendant could assert counterclaims against the insureds/subrogors in an action filed in the name of their subrogee. The court held that since the insurerds/subrogors were not a party to the action and the defendant could assert the substance of its counterclaim as a defense, the defendant could not file counterclaims against the insureds/subrogors in the insurer’s subrogation action.
Kosciusko County arose from a motor vehicle accident involving a semi-tractor trailer owned by Bellman Oil Company, Inc. (Bellman) and B & B Transport, Inc. (B & B). The accident occurred on a highway in Kosciusko County in October of 2019. The accident caused the semi-tractor trailer containing ethanol fuel to roll over four times and burst into flames. Federated Mutual Insurance Company (FMIC) insured Bellman and B & B for the semi-tractor trailer and issued payments as a result of the accident.
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Gus Sara, White and WilliamsMr. Sara may be contacted at
sarag@whiteandwilliams.com
US Appeals Court Halts OSHA Vaccine Mandate, Unclear How Long
November 15, 2021 —
Debra K. Rubin & Jeff Yoders - Engineering News-RecordThe U.S. Court of Appeals in New Orleans on Nov. 6 stayed the Biden administration's requirement that workers at U.S. companies with at least 100 employees be vaccinated against COVID-19 or be tested weekly, citing potential "grave statutory and constitutional" issues raised by opponents of the US Occupational Safety and Health Administration's emergency temporary standard announced on Nov. 4.
Reprinted courtesy of
Debra K. Rubin, Engineering News-Record and
Jeff Yoders, Engineering News-Record
Ms. Rubin may be contacted at rubind@enr.com
Mr. Yoders may be contacted at yodersj@enr.com
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High School Gym Closed by Construction Defects
October 28, 2011 —
CDJ STAFFThe high school gym in Lake Oswego, Oregon has been shut down because testing has revealed that the construction defects have lead to deterioration of the structural integrity of the roof. The school district noted that there was a chance of collapse if there were a “significant seismic event or heavy rain and winds and snow.” The school district has been in a lawsuit with the builders since 2008, which was recently settled for $600,000.
The school board is still determining whether the original contractor will be asked to correct the defect or if they will bid the job out.
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