Coronavirus, Force Majeure, and Delay and Time-Impact Claims
March 30, 2020 —
Garret Murai - California Construction Law BlogIt’s scary, uncertain times as the world grasps with how to deal with the coronavirus pandemic that has now spread to every continent on the globe with the exception of Antarctica. Although this is a global crisis, it has, and for the immediately future will continue to have, a direct impact on us individually as well our industry.
While the impact of the coronavirus on the construction industry is uncertain, what is certain, is that it will have an impact, whether on the construction labor market, on construction supply chains, on the ability of contractors to deliver projects on time and within budget, and on decisions by owners whether to move forward with projects altogether.
According to Ken Simonson, chief economist with the Associated General Contractors of America, during an interview at the ConExpo conference this past week in Las Vegas, while the coronavirus crises “is a story evolving by the hour . . . the impacts on construction are going to happen, but it’s hard to say how extensive, how long they’ll last, [and] how soon they’ll show up.”
From a legal perspective, the coronavirus, and really any natural disaster, from the “Campfire Fire” in Northern California in 2018 to the “Big One” which can happen anytime, has the potential to adversely impact a construction project or shut it down completely. This in turn raises two different, but interrelated legal concepts: (1) force majeure; and (2) delay and time-impact claims.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
NYC Design Firm Executives Plead Guilty in Pay-to-Play Scheme
June 18, 2019 —
Engineering News-RecordTwo former top executives of New York City-based engineer HAKS pleaded guilty in city court May 13 to bribe charges related to efforts to gain municipal water infrastructure contracts, according to court filings, an attorney for its ex-chief financial officer and plea agreements provided to ENR by the Manhattan district attorney's office.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.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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Insurer's Daubert Challenge to Insured's Expert Partially Successful
November 03, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe insurer was partially successful in challenging two of the insureds' experts in a bad faith case. Estate of Arroyo v. Infinity Indem. Ins. Co., 2016 U.S. Dist. LEXIS 115669 (S.D. Fla. Aug. 29, 2016).
The Estate sought to qualify two experts, Lewis N. Jack and James P. Schratz. They were to opine on Infinity's handling of the Estate's insurance claims and the extent of damages warranted in the case. Jack was to testify on Infinity's duties to the insured, its investigation of the case, its reliance on Infinity's agents, and his belief that Infinity could have settled the case. Schratz's opinions mostly concerned Infinity's handling of its investigation.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
New Washington Law Nixes Unfair Indemnification in Construction Contracts
April 25, 2012 —
Douglas Reiser, Builders Council BlogContractual fairness ? it is part of my mantra. If you read the blog, you probably know that I preach brevity, balance and clarity in contracting. The State of Washington did well to finally eliminate something that has angered me for quite some time ? unfair indemnification.
One of my favorite construction contract revisions is mutual indemnification. Many “up the chain” contractors and owners are going to stick you with a unilateral indemnification clause that protects them for just about everything, including their own fumbling of a project. Adding mutual indemnification provides some balance, and keeps parties reliant upon each other for success on the job site.
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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com
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Top 10 OSHA Violations For The Construction Industry In 2023
February 26, 2024 —
Dominic Donato & Jeff Miragliotta - Kahana FeldEvery year, the Occupational Safety and Health Administration (OSHA) publishes their top violations in the construction industry. And typically, the most common violations are consistent year after year. What separates 2023 is the number of citations involving Fall Protection, Scaffolding, Ladders, and the failure to use personal protective equipment (PPE) or other life safety equipment (LSE). The following is the list of the Top Ten OSHA violations for 2023:
(10) Toxic and Hazardous Substances. There were 382 citations issued for “hazardous communication” and improper warnings issued to construction employees.
(9) Excavations. There were 395 citations issued for failure to provide proper and specific excavation requirements and instructions.
(8) Scaffolding – Aerial Lifts. There were 481 citations issued for improper lifting equipment and supports for building scaffolding.
Reprinted courtesy of
Dominic Donato, Kahana Feld and
Jeff Miragliotta, Kahana Feld
Mr. Donato may be contacted at ddonato@kahanafeld.com
Mr. Miragliotta may be contacted at jmiragliotta@kahanafeld.com
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ASCE Statement on National Dam Safety Awareness Day - May 31
June 06, 2022 —
Dennis D. Truax, President, American Society of Civil Engineers (ASCE)Washington, DC. – Nationwide, more than 92,000 dams protect communities across the country, providing numerous services including irrigation, water conservation, and flood protection. Advocating for the safety, robustness, and sustainability of our nation's dams is a top priority for ASCE as we recognize May 31 as National Dam Safety Awareness Day.
National Dam Safety Awareness Day is observed in remembrance of the "Johnstown Flood" on May 31, 1889. Failures of the South Fork Dam near Johnstown, PA, resulted in the death of more than 2,200 people. This tragedy serves as an illustration of the critical importance of effectively maintaining and managing our nation's dams and ensuring that adequate dam safety measures remain in place to avoid these preventable tragedies.
ASCE's
2021 Report Card for America's Infrastructure gave the nation's dams a "D" grade. Of the nation's 92,000 dams, more than 15,000 are classified as having "high hazard potential", meaning that dam failure would result in the loss of life. While increased state investment in dam safety programs has allowed for better assessment of dams and the ability to identify rehabilitation needs as well as potential hazards, increased federal investment is still needed to ensure the safety of dams nationwide.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Wheaton to Require Sprinklers in New Homes
November 06, 2013 —
CDJ STAFFThe town of Wheaton, Illinois is considering a change to its building codes, based on the recommendations made in the 2012 building code, released by the International Code Council. Eighty-two towns in Illinois already require new homes to have fire sprinklers. Wheaton did not adopt any changes from the 2006 or 2009 building code; they are currently using the standards of the 2003 edition.
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