Arctic Roads and Runways Face the Prospect of Rapid Decline
July 19, 2021 —
Tony Frangie Mawad - BloombergMelting permafrost across Arctic regions has already caused highways to buckle and homes to sink. A new study conducted in the north of Alaska helps explain why rising temperatures are hitting roads, airports and other infrastructure particularly hard.
Researchers who monitored temperatures and melting near Prudhoe Bay on Alaska’s North Slope documented how the thawing of frozen ground beneath a highway tended to spread laterally to the side of the road, with the melting process accelerated by snow accumulations and puddling. Those interactions led to more rapid thawing than in areas of undisturbed permafrost.
Researchers also found that melting in their test area, alongside a highway that runs atop permafrost, followed a two-phase process — a gradual initial thaw, followed by an accelerated process once warming exceeded a critical point.
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Tony Frangie Mawad, Bloomberg
Carin Ramirez and David McLain recognized among the Best Lawyers in America© for 2021
March 15, 2021 —
Colorado Construction Litigation BlogHiggins, Hopkins, McLain & Roswell is pleased to announce that Carin Ramirez and David McLain were recently selected by their peers for inclusion in The Best Lawyers in America© for 2021. Carin Ramirez has been recognized for her work in insurance litigation and David McLain has been recognized for his work in construction law.
Carin Ramirez has over 11 years of experience in civil defense litigation with an emphasis on the defense of construction defect lawsuits on behalf of developers, general contractors, and other construction professionals. She also practices in the areas of personal injury defense, premises liability, environmental torts, wrongful death, negligent design, property damage, subrogation claims, contract disputes, bad faith, and commercial litigation. David McLain has over 22 years of experience and is well known for his work in the defense of the construction industry, particularly in the area of construction defect litigation. He is a member of the Executive Committee of the CLM Claims College - School of Construction, which is the premier course for insurance, industry, and legal professionals.
HHMR is highly regarded for its expertise in construction law and the litigation of construction-related claims, including the defense of large and complex construction defect matters. Our attorneys provide exceptional service to individuals, business owners, Fortune 500 companies, and the insurance industry. The firm is experienced in providing legal support throughout trials and alternative dispute resolution such as mediations and arbitrations.
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Higgins, Hopkins, McLain & Roswell
Potential Construction Liabilities Contractors Need to Know
September 21, 2020 —
Manipal Dhariwal - Construction ExecutiveThe outbreak of COVID-19 started in early December 2019, gradually expanding to the other countries of the world. The spread of the pandemic did not just affect the world in terms of health, but also made industries suffer across all verticals—leading to a few unique challenges for construction contractors.
From financial imbalance to trouble retaining cash flow, the circumstances have turned to be completely unfavorable for the contractors that rely on banks for essential surety credits to sustain. To prevent loss of liquidity, the contractors are leaning toward construction accounting software and other technology to keep their accounting data in place and avoid risks with project deliveries.
But still, there are many other factors that must be considered to maintain cash flow for potential credit availability such as debt agreements and lines of credit, which involve financing of equipment and vehicles.
Nevertheless, it is completely the responsibility of the contractors to stick with the guidelines related to the line of credit and debt agreements which in most cases are covenant ratios.
Reprinted courtesy of
Manipal Dhariwal, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Delaware District Court Finds CGL Insurer Owes Condo Builder a Duty to Defend Faulty Workmanship Claims — Based on the Subcontractor Exception to the Your Work Exclusion
October 04, 2021 —
Anthony L. Miscioscia & Laura Rossi - White and WilliamsOn September 7, 2021, in one of the few decisions addressing the scope of coverage for faulty workmanship under Delaware law, the Delaware District Court denied an insurer’s motion seeking a declaration that it neither needed to defend nor indemnify an insured-builder under a commercial general liability policy.
In this declaratory judgment action, Pennsylvania National Mutual Casualty Insurance Company v. Zonko Builders, the insurer argued that the ongoing underlying action failed to properly plead an “occurrence” in a case alleging damages to a condominium caused by faulty workmanship involving subcontractors.* Zonko Builders (Zonko) served as the general contractor, supervising subcontractors. The Condominium Association sued Zonko for damages allegedly resulting from design and construction deficiencies. The motion was opposed by the Condominium Association, which cross-moved for partial judgment on the pleadings.
In AE-Newark Associates, L.P. v. CNA Insurance Companies, 2001 Del. Super. LEXIS 370 (Del. Super. Ct. Oct. 2, 2001), the Delaware Superior Court found that an insured was entitled to coverage for damages arising from a faulty roof system installed by a subcontractor on behalf of the insured general contractor.
Reprinted courtesy of
Anthony L. Miscioscia, White and Williams and
Laura Rossi, White and Williams
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Ms. Rossi may be contacted at rossil@whiteandwilliams.com
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Don’t Overlook Leading Edge Hazards
May 20, 2019 —
Baxter Byrd - Construction ExecutiveLeading edge hazards are often misunderstood and overlooked on today’s highly visible jobsites. Evidence is readily available via images shared on construction-related social media accounts.
In the context of people showing pride for the hard work they do or the extreme conditions under which they work, posts offer glimpses into the methods employed to mitigate fall hazards. Alarmingly, many of these methods do not adhere to industry-accepted standards, especially in the case of leading edge applications.
Mincing Words
The definition of “leading edge” itself has undergone somewhat of a transformation since its introduction by OSHA to its current use by ANSI in the Z359.14-2014 “Safety Requirements for Self-Retracting Devices for Personal Fall Arrest and Rescue Systems” standard. OSHA defines a leading edge as an “unprotected side or edge during periods when it is actively or continuously under construction,” giving many the impression that a leading edge was a temporary condition found only during the construction of a structure.
Reprinted courtesy of
Baxter Byrd, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Byrd may be contacted at
info@puresafetygroup.com
Enforcement Of Contractual Terms (E.G., Flow-Down, Field Verification, Shop Drawing Approval, And No-Damage-For-Delay Provisions)
May 04, 2020 —
David Adelstein - Florida Construction Legal UpdatesWhat you contractually agree to matters, particularly when you are deemed a sophisticated entity. This means you can figuratively live or die by the terms and conditions agreed to. Don’t take it from me, but it take it from the Fourth Circuit’s decision in U.S. f/u/b/o Modern Mosaic, Ltd. v. Turner Construction Co., 2019 WL 7174550 (4th Cir. 2019), where the Court started off by stressing, “One of our country’s bedrock principles is the freedom of individuals and entities to enter into contracts and rely that their terms will be enforced.” Id. at *1.
This case involved a dispute between a prime contractor and its precast concrete subcontractor on a federal project. The subcontractor filed a Miller Act payment bond lawsuit. The trial court ruled against the subcontractor based on…the subcontract’s terms! So, yes, what you contractually agree to matters.
Example #1 – The subcontractor fabricated and installed precast concrete panels per engineering drawings. However, the parking garage was not built per dimensions meaning the panels it fabricated would not fit. The subcontractor had to perform remedial work on the panels to get them to fit. The subcontractor pursued the prime contractor for these costs arguing the prime contractor should have field verified the dimensions. The problem for the subcontractor, however, was that the subcontract required the subcontractor, not the prime contractor, to field verify the dimensions. Based on this language that required the subcontractor to field verify existing conditions and take field measurements, the subcontractor was not entitled to its remedial costs (and they were close to $1 Million). Furthermore, and of importance, the Court noted that the subcontract contained a flow down provision requiring the subcontractor to be bound by all of the terms and conditions of the prime contract and assume those duties and obligations that the prime contractor was to assume towards the owner. While this flow-down provision may often be overlooked, here it was not, as it meant the subcontractor was assuming the field verification duties that the prime contractor was responsible to perform for the owner.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Used French Fry Oil Fuels London Offices as Buildings Go Green
December 10, 2015 —
Siobhan Wagner – BloombergPricewaterhouseCoopers LLP’s office above Charing Cross railway station in London is cooled, heated and fueled by an unlikely source: used cooking oil.
The system, which helped the property become the greenest building in the U.K. capital, uses oil refined less than two miles away at London Bridge. It also helps prevent an invisible problem: “fatbergs” formed when oils dumped in drains and pipes congeal with baby wipes and diapers and block the city’s sewers.
“We’re using London’s waste to fuel a London office building,” said Jon Barnes, head of building at PwC. The system contributed toward a one-third reduction in electricity costs after a two-year refurbishment of the One Embankment Place office building that finished last year.
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Siobhan Wagner, Bloomberg
A Court-Side Seat: A Poultry Defense, a Houston Highway and a CERCLA Consent Decree that Won’t Budge
March 22, 2021 —
Anthony B. Cavender - Gravel2GavelFebruary saw the usual array of significant environmental decisions and federal regulatory notices.
THE FEDERAL COURTS
U.S. Court of Appeals for the District of Columbia
Luminant Generation v. EPA
The court will be grappling with a difficult venue case governed by the Clean Air Act (42 USC Section 7607(b)). In 2013, the U.S. Court of Appeals for the Fifth Circuit decided the case of Luminant Generation v. EPA (714 F. 3d 841), in which the court upheld the affirmative defenses that were made part of the Texas State Implementation Plan (SIP) and which applied to certain unpermitted emissions from regulated sources during periods of startup, shutdown or malfunction. These defenses were challenged in the Fifth Circuit and were rejected. On the national stage, EPA has been involved in litigation over these affirmative defenses and recently excluded from a “SIP Call” the Texas program, which was carved out. This EPA decision is being challenged in the DC Circuit (see Case number 20-1115),with the State of Texas arguing as an intervenor that any issues involving Texas belong in the Fifth Circuit, and not in the DC Circuit because the Act allows regional issues to be decided in the regional federal courts.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
