The Future Has Arrived: New Technologies in Construction
October 17, 2022 —
Sarah Biser - ConsensusDocsThe construction industry has traditionally been slow to adapt to new technologies, but things are changing.
Construction companies are keen to control costs (including increased costs due to supply chain issues), improve efficiency, maintain productivity while dealing with labor shortages, and enhance safety, and protect data bases from cyberattacks. New technologies, including robotics, 3D printing, cloud and mobile computing, augmented reality, blockchain, and cybersecurity, are helping construction companies achieve those goals.
Here are some key takeaways.
Augmented Reality (AR) vs. Virtual Reality
Augmented Reality is a technology that superimposes a computer generated image upon a user’s view of the real work. Virtual Reality, on the other hand, creates a virtual environment to replace the real one.
AR has uses in many industries. For example, shoppers using AR can see what furniture or appliances will look like in their own homes and offices. Medical professionals can also use the technology to visualize organs and simulate procedures prior to operations.
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Sarah B. Biser, Fox Rothschild LLP (ConsensusDocs)Ms. Biser may be contacted at
sbiser@foxrothschild.com
Waiver of Consequential Damages: The Most Important Provision in a Construction Contract
March 08, 2021 —
Jeremy P. Brummond - Construction ExecutiveConstruction agreements can be lengthy. They often include terms covering everything from logistics for working on the project site to complicated provisions regarding intellectual property. Many provisions in a construction agreement deal with risk and who is going to pay for damage claims if or when they occur.
However, not all risk-shifting provisions are equally important. While provisions that impose obligations on the contractor to maintain confidentiality, indemnify for personal injury or property damage, or correct defective work can expose a contractor to substantial damage claims and are thus important, contractors can significantly control the amount of damages the owner can claim by including a well-drafted waiver of “consequential damages” provision in the agreement.
Because the waiver of consequential damages can significantly control the amount of damages for which a contractor is assuming risk and greatly limit the owner’s ability to recoup many damages, it is arguably the most important provision in a construction contract. Therefore, it is essential for contractors and owners to carefully consider the waiver of consequential damages before entering into any construction agreement.
Reprinted courtesy of
Jeremy P. Brummond, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Brummond may be contacted at
jbrummond@lewisrice.com
CA Homeowners Challenging Alternate Pre-Litigation Procedures
April 15, 2014 —
Beverley BevenFlorez-CDJ STAFFGarret Murai on his California Construction Law blog discussed how some homeowners have challenged homebuilders who use alternative pre-litigation procedures instead of the rules of California’s Right to Repair Act (SB 800).
“The Right to Repair Act, which was intended to help curb the then rising tide of residential construction defect litigation, provides mandatory pre-litigation procedures which must be followed in construction defect cases involving new residential construction,” Murai explained. “One of the major exceptions to the statutory pre-litigation procedures under SB 800, however, is that a homebuilder can opt to use its own alternative pre-litigation procedures if disclosed to a homebuyer.”
Murai used The McCaffrey Group, Inc. v. Superior Court case to demonstrate that homeowners can challenge the builder’s use of alternative pre-litigation procedures, and win if they can prove that the alternate procedures are “unconscionable.”
“For homebuilders, the take away is that, sure you can adopt your own alternative pre-litigation procedures under the Right to Repair,” Murai stated, “but if you do just know that they may be challenged by homeowners who may contend that they are unconscionable, which kinda defeats the whole idea behind SB 800 which was intended to reduce the amount of litigation the first place.”
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Can General Contractors Make Subcontractors Pay for OSHA Violations?
March 05, 2015 —
Craig Martin – Construction Contractor AdvisorOSHA has long held the opinion that general contractors may be held liable for subcontractor’s OSHA violations and the Eighth Circuit Court of Appeals, overseeing the Midwest, has agreed since 2009. To combat this risk, general contractors would be well served to incorporate targeted indemnity provisions into their subcontracts that require subcontractors to pay for all claims and costs associated with subcontractor caused OSHA violations.
OSHA’s Multi-Employer Policy
OSHA’s Multi-Employer Policy, a/k/a OSHA Instruction CPL 02-00-124, allows OSHA to cite multiple employers at a single worksite for creating a hazard, or for failing to prevent or correct a hazard, even if their own workers are not exposed to the hazard. A ‘‘controlling’’ or ‘‘correcting’’ employer is liable for hazards that it did not take ‘‘reasonable care’’ to detect and prevent.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Violation of Prompt Payment Statutes is Not a Breach of Contract. But That’s Not the Most Interesting Part
November 01, 2022 —
Garret Murai - California Construction Law BlogWhile construction projects can get messy, they don’t get much messier than the next case, which, while involving a fairly limited legal issue, has such jaw dropping facts it’s worth a read if only to make you feel a bit better about your own project.
The Clark Bros. Case
In Clark Bros, Inc. v. North Edwards Water District, 77 Cal.App.5th 801 (2022), general contractor Clark Bros., Inc. was awarded over $3 million in damages against a local water district on a water treatment facility project.
The Project
The North Edwards Water District serves approximately 220 customers in the Mojave Desert. It has one employee, Dollie Dimples Kostopoulos. Seriously, you can’t make this stuff up. The drinking water it provides to its customers contains three times the legal limit of arsenic, a carcinogen.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Auditor: Prematurely Awarded Contracts Increased Honolulu Rail Cost by $354M
February 11, 2019 —
Honolulu Star-Advertiser - Engineering News-RecordJan. 10 --A series of "prematurely" awarded rail contracts doled out to construction companies as early as 2009 prompted delay claims and change orders that increased the cost of the Honolulu rail project by more than $354 million , according to a new report by the Hawaii State Auditor released today.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
Municipal Ordinances Create Additional Opportunities for the Defense of Construction Defect Claims in Colorado
August 22, 2022 —
Ricky Nolen - Colorado Construction Litigation BlogMunicipal ordinances may provide additional defenses for construction professionals where state law does not provide sufficient protection for Colorado’s builders. Colorado state law can be a minefield of potential liability for construction professionals. Even though the state legislature has stated that it must “recognize that Construction defect laws are an existing policy issue that many developers indicate adds to for-sale costs,” the legislature has remained hesitant to provide any meaningful protection from construction defect claims, resulting in almost unlimited exposure for Colorado’s construction professionals.
Given this background of state laws that do not go far enough in protecting Colorado’s construction professionals, it may be fruitful to review municipal ordinances for new defenses and to temper state law developments applicable to construction defect claims. This is an area of law that is only just developing in Colorado. In fact, the ordinances discussed in this article were only passed in the last two years with many cities only adopting the present versions of the ordinances in 2021. The two model ordinances discussed below are potentially helpful in three ways. The first model ordinance gives construction professionals a right to repair defects in the multi-family construction and in the common interest community context. The second model ordinance is helpful in two ways. First, it establishes that homeowners associations may not unilaterally circumvent ADR protections included in the original declarations for such communities.[1] Second, the ordinance reduces the risk that strict liability will be imposed on a construction professional where a building code is violated.
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Ricky Nolen, Higgins, Hopkins, McLain & Roswell, LLCMr. Nolen may be contacted at
nolen@hhmrlaw.com
Trial Court's Award of Contractual Fees to Public Adjuster Overturned
June 03, 2019 —
Tred R. Eyerly - Insurance Law HawaiiA judgment awarding the public adjuster his compensation for work performed under contract was remanded for further proceedings by the Hawaii Intermediate Court of Appeals. Joslin v Ota Camp-Makibaka Ass'n, 2019 Haw. App. LEXIS 155 (Haw. Ct. App. April 5, 2019).
A fire destroyed the homeowners' residence on September 19, 2013. The property was subject to the bylaws of the Association of Apartment Owners of Ota Camp. The Association had a policy with Alterra Excess & Surplus Insurance Company and submitted a claim for all units damaged in the fire. The Association's adjuster came the following day to inspect the site.
Separately, Robert Joslin, public adjuster, entered a contract with the homeowners to adjust their claim in exchange for twelve-percent of any insurance proceeds obtained. Over the next several months Joslin pursued insurance proceeds from Alterra on behalf of the homeowners. On December 18, 2013, Joslin filed a complaint with the Insurance Division arguing that Alterra had failed to timely make payments on the claim.
On February 10, 2014, Alterra's third party administrator, Engle Martin & Associates, sent a check to Joslin for $231,940 made out to the Association, the homeowners and Joslin.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com