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Real Estate & Construction News Round-Up (11/02/22) – Flexible Workspaces, Sustainable Infrastructure, & Construction Tech

November 15, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
This week’s round-up dives into digital transformation in the construction industry, renewed interest in flexible workspaces, and how the infrastructure sector can become more resilient and sustainable, both economically and environmentally.

Digital transformation in the construction industry is top of mind for many firms, but most are still in the beginning and intermediate phases of implementing new digital capabilities. (Ursula Cullen, PBC Today)
Companies could mitigate climate hazards and build resilience into the life cycle of their infrastructure and capital projects by facilitating a comprehensive approach to understanding risk. (Brodie Boland and Daphne Luchtenberg, McKinsey & Company)
The use of drones in project planning, as well as the incorporation of other technology, is proposed as an alternative solution to addressing the construction industry’s labor shortage. (Shaun Passley, For Construction Pros)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

Court Holds That Insurance Producer Cannot Be Liable for Denial of COVID-19 Business Interruption Claim

November 23, 2020 — Christopher P. Leise & Marc L. Penchansky - White and Williams LLP
After an insurance carrier denied a lawyer and her law firm’s claim for lost business income due to the COVID-19-related shutdown, she sued both her carrier and the insurance producer that procured the policy. See Wilson v. Hartford Casualty Company, No. 20-3384 (E.D.Pa. Sep. 30, 2020). In one of the first cases to consider producer liability in COVID-19 cases, Judge Eduardo Robreno dismissed the lawsuit against the producer and the carrier. USI procured the Policy from Hartford for Rhonda Hill Wilson and her law firm. The Policy included coverage for lost business income and extra expense caused by direct physical loss of, or damage to property. Similarly, the Policy covered lost business income if a nearby property experienced a direct physical loss that caused a civil authority to issue an order that prohibited access to the law firm’s property. The Policy also included a virus exclusion “for loss or damage caused directly or indirectly by . . . [p]resence, growth, proliferation, spread or any activity of . . . virus.” Judge Robreno did not decide whether the Policy afforded any coverage to Wilson and her law firm for their COVID-19 losses. Rather, he found that even if they could, the virus exclusion unambiguously barred any coverage they could possibly claim. For that reason, Judge Robreno dismissed the claims against Hartford. Reprinted courtesy of Christopher P. Leise, White and Williams LLP and Marc L. Penchansky, White and Williams LLP Mr. Leise may be contacted at leisec@whiteandwilliams.com Mr. Penchansky may be contacted at penchanskym@whiteandwilliams.com Read the court decision
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Quick Note: Independent Third-Party Spoliation Of Evidence Claim

June 18, 2019 — David Adelstein - Florida Construction Legal Updates
In an earlier posting I discussed the difference between first-party spoliation of evidence and third-party spoliation of evidence. There is NO independent cause of action for first-party spoliation of evidence because that can be dealt with directly in the underlying lawsuit. This deals with the assertion that an actual party to a lawsuit spoiled evidence. 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

Proving & Defending Lost Profit Damages

June 09, 2016 — David Adelstein – Florida Construction Legal Updates
I have written numerous articles regarding the challenge in proving lost profit damages. Yes, lost profits are a form of damages in business disputes, but they are a form of damages that are subject to a certain degree of conjecture and speculation. For this reason, lost profit evidence is oftentimes precluded from being presented at trial or lost profit damages are reversed on appeal. This is why it is imperative to ensure i’s are dotted and t’s are crossed when it comes to proving lost profit damages. It is also imperative, when defending a lost profit claim, to put on evidence and establish the speculative nature of the lost profit damages. Read the court decision
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Reprinted courtesy of David M. Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

White and Williams Obtains Reversal on Appeal of $2.5 Million Verdict Against Electric Utility Company

September 03, 2014 — Edward Koch, Mark Paladino, Luke Repici, & Andrew Susko – White and Williams LLP
PPL Electric Utilities successfully argued on appeal that the $2.5 million plaintiff’s molded verdict awarded to an injured painting subcontractor should be vacated because the alleged evidence was legally insufficient and therefore the utility was not liable. In Nertavich v. PPL Electric Utilities, the plaintiff argued that although the utility was a landowner out of possession of the worksite, the utility was liable because it controlled the work of the subcontractor both by contract and by conduct. PPL argued on appeal before the Superior Court of Pennsylvania that the alleged evidence of the utility company’s control was insufficient as a matter of law to constitute control over the means and methods of the subcontractor’s work, and thus, PPL was not liable as a landowner out of possession. Reprinted courtesy of White and Williams LLP attorneys Edward Koch, Mark Paladino, Luke Repici and Andrew Susko Mr. Koch may be contacted at koche@whiteandwilliams.com; Mr. Paladino may be contacted at paladinom@whiteandwilliams.com; Mr. Repici may be contacted at repicil@whiteandwilliams.com; and Mr. Susko may be contacted at suskoa@whiteandwilliams.com Read the court decision
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Pennsylvania Superior Court Tightens Requirements for Co-Worker Affidavits in Asbestos Cases

November 26, 2014 — Jerrold P. Anders & Tonya M. Harris – White and Williams LLP
In Krauss v. Trane US Inc., 2014 Pa. Super. 241, --- A.3d --- (October 22, 2014), the Superior Court of Pennsylvania held that a witness affidavit does not create a genuine issue of fact to defeat summary judgment when it reflects only a presumption and belief that certain products contained asbestos. Moreover, when an affidavit fails to demonstrate plaintiff’s frequent, regular, and proximate exposure to a specific defendant’s asbestos-containing product, summary judgment will be granted. The Executor of the Estate of Henry M. Krauss filed two lawsuits against forty-nine defendants in the Philadelphia Court of Common Pleas. Plaintiff alleged that Mr. Krauss, a bricklayer from 1978 to 1983, was occupationally exposed to asbestos and developed mesothelioma. Various defendants moved for summary judgment based on insufficient product identification. The trial court granted summary judgment in favor of the defendants because the co-worker affidavits failed to show that: (1) Mr. Krauss worked in proximity to the defendants’ products; (2) the products contained asbestos during the relevant period; or (3) Mr. Krauss inhaled asbestos fibers from the products. Reprinted courtesy of Jerrold P. Anders, White and Williams LLP and Tonya M. Harris, White and Williams LLP Mr. Anders may be contacted at andersj@whiteandwilliams.com; Ms. Harris may be contacted at harrist@whiteandwilliams.com Read the court decision
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Residential Interior Decorator Was Entitled to Lien and Was Not Engaging in Unlicensed Contracting

August 04, 2021 — David Adelstein - Florida Construction Legal Updates
Residential construction disputes can sometimes take nasty turns. This is not attributed to one specific reason, but a variety of factors. Sometimes, there are not sophisticated contracts (or contracts at all). Sometimes, relationships and roles get blurred. Sometimes, parties try to skirt licensure requirements. Sometimes, a party is just unreasonable as to their expectations. And, sometimes, a party tries to leverage a construction lien to get what they want. In all disputes, a party would certainly be best suited to work with construction counsel that has experience navigating construction disputes. An example of a construction dispute that took a nasty turn involving an interior decorator is SG 2901, LLC v. Complimenti, Inc., 2021 WL 2672295 (Fla. 3d DCA 2021). In this case, a condominium unit owner wanted to renovate his apartment. He hired an interior decorator to assist. As his renovation plans became more expansive, the interior decorator told him he would need to hire a licensed contractor and architect. The interior decorator arranged a meeting with those professionals and, at that meeting, they were hired by the owner and told to deal directly with the interior decorator, almost in an owner’s representative capacity since the owner traveled a lot. The interior decorator e-mailed the owner about status and requested certain authorizations, as one would expect an owner’s representative to do. At the completion of the renovation job, the owner did not pay the interior decorator because he was unhappy with certain renovations. The interior decorator recorded a construction lien and sued the owner which included a lien foreclosure claim. There was no discussion of the contracts in this case because, presumably, contracts were based on proposals, were bare-boned, or were oral. 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

Project Delivery Methods: A Bird’s-Eye View

November 01, 2021 — Levi W. Barrett, Nathan A. Cohen & Stewart Shurtleff - ConsensusDocs
For centuries the ability to construct sophisticated structures has been the yardstick for measuring civilizations. Naturally, as our knowledge and capacity to build has evolved and developed over the ages, the methods of project delivery have similarly progressed. From Design-Bid-Build to CM-at-Risk and Design-Build to Integrated Project Delivery, each method developed to fit a very specific need—but each carries its own set of inherent risks and rewards. In this article we explore key aspects and differences among the various delivery methods that are commonly used in today’s construction industry, and provide guidance related to the obligations and risk profiles of the parties involved. Ideally, contractors and construction managers may refer to the advice provided herein when determining whether a proposed delivery method properly fits the requirements of the project under consideration. Reprinted courtesy of Levi W. Barrett, Peckar & Abramson, P.C., Nathan A. Cohen, Peckar & Abramson, P.C. and Stewart Shurtleff, Peckar & Abramson, P.C. Mr. Barrett may be contacted at lbarrett@pecklaw.com Mr. Cohen may be contacted at ncohen@pecklaw.com Mr. Shurtleff may be contacted at sshurtleff@pecklaw.com Read the court decision
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