Kentucky Supreme Court Creates New “Goldilocks Zone” to Limit Opinions of Biomechanical Experts
July 24, 2023 —
Aimee E. Muller - Lewis BrisboisLexington, Ky. (June 26, 2023) – In a recent decision, the Kentucky Supreme Court placed stricter limitations on the opinions that biomechanical engineers may offer at trials in Kentucky courts. Specifically, the published opinion issued in Renot v. Securea, Supreme Ins. Co., 2023 Ky. LEXIS 163, recognizes a new space for the testimony of biomechanics experts – “The Goldilocks Zone.”
Where is the Goldilocks Zone?
The Goldilocks Zone is a perfect place in which the proffered testimony is neither too specific such that it wanders into the realm of medical causation, nor too general such that it fails to help a lay jury. Specifically, a biomechanical engineer’s expert testimony must be limited to the forces generated by the subject collision, the generally anticipated responses of a hypothetical person’s body to those forces, and the range of typical injuries resulting from such forces. Moreover, following Renot, a biomechanical engineer’s proffered opinions no longer may enter into the realm of diagnosing a specific medical condition associated with a traumatic injury. Instead, the question of whether a trauma actually caused or exacerbated a plaintiff’s injuries falls solely within the purview of a medical doctor.
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Aimee E. Muller, Lewis BrisboisMs. Muller may be contacted at
Aimee.Muller@lewisbrisbois.com
NCCER Celebrates Construction Education Programs and Products in 2024
January 07, 2025 —
The National Center for Construction Education and ResearchALACHUA, Fla., Dec. 30, 2024 (GLOBE NEWSWIRE) --
The National Center for Construction Education and Research (NCCER) released several new or updated educational products in 2024, serving its ongoing mission to provide workforce development solutions for the construction industry and impacting 330,000 people.
NCCER's newest craft training products include a new certification program, multiple curricula updates, new Spanish curriculum translations, and NCCERconnect digital courses and resources.
One of the highlights of the year was the launch of the brand-new
Construction Foreman Certification Program. Helping to fill a significant gap in formal training for frontline supervisors, the program covers critical areas of field leadership such as people management, communication, quality, safety and productivity. The Construction Foreman Certification Program is the latest offering in NCCER's Construction Leadership Series (CLS), which provides turnkey, self-paced online certification solutions for leadership development. The first title in the CLS, the
Construction Superintendent Certification Program, debuted in 2023.
About NCCER – The National Center for Construction Education and Research (NCCER) is an independent 501(c)(3) nonprofit education foundation and the leading provider of construction education for industry and career and technical education programs. With flexible workforce development and learning solutions, NCCER's programs provide consistency and quality to ensure craft professionals and learners receive industry-recognized credentials and certifications. To learn more, visit www.nccer.org.
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Tall and Sustainable Is Not an Easy Fix
June 01, 2020 —
Christopher G. Hill - Construction Law MusingsWay back in 2009, I discussed the interaction between taller and taller buildings and sustainable (“green”) building. Back then, the reference was to the construction of skyscrapers in the Middle East and Europe. The initially referenced ENR article was written in the context of an urban retrofit of some of Chicago’s taller buildings to make them more sustainable.
Just this week, ENR published another article relating to sustainability and super tall buildings. The gist of the article is that while many see taller (rather than wider) as the trend to meld an urban population explosion with more sustainable building practices, this goal is not an easy one to meet.
For one, according to the article, energy performance metrics are hard to obtain, both due to the relative newness of these buildings and the seeming reluctance of certain owners to provide the data. Bob Pratt, a managing director in the Shanghai office of developer Tishman Speyer Properties, is quoted in the article, stating
Once we have measuring sticks about performance, we will know what to do” to make buildings sustainable.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrissghill@constructionlawva.com
Liability Insurer Precluded from Intervening in Insured’s Lawsuit
September 17, 2018 —
David Adelstein - Florida Construction Legal UpdatesThere are cases where I honestly do no fully understand the insurer’s position because it cannot have its cake and eat it too. The recent opinion in Houston Specialty Insurance Company v. Vaughn, 43 Fla. L. Weekly D1828a (Fla. 2d DCA 2018) is one of those cases because on one hand it tried hard to disclaim coverage and on the other hand tried to intervene in the underlying suit where it was not a named party.
This case dealt with a personal injury dispute where a laborer for a pressure washing company fell off of a roof and became a paraplegic. The injured person sued the pressure washing company and its representatives. The company and representatives tendered the case to its general liability insurer and the insurer–although it provided a defense under a reservation of rights—filed a separate action for declaratory relief based on an exclusion in the general liability policy that excluded coverage for the pressure washing company’s employees (because the general liability policy is not a workers compensation policy). This is known as the employer’s liability exclusion that excludes coverage for bodily injury to an employee. The insurer’s declaratory relief action sought a declaration that there was no coverage because the injured laborer was an employee of the pressure washing company. The pressure washing company claimed he was an independent contractor, in which the policy did provide limited coverage pursuant to an endorsement.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Colorado Court of Appeals to Rule on Arbitrability of an HOA's Construction Defect Claims
November 20, 2013 —
W. Berkeley Mann, Jr. — Higgins, Hopkins, McLain & Roswell, LLCOn October 24, 2013 the Colorado Court of Appeals granted a rare interlocutory appeal in a multi-family residential construction defect case. The Court of Appeals accepted the case ofTriple Crown at Observatory Village Association, Inc. v. Village Homes of Colorado, Inc.(2013 WL 5761028) as an interlocutory appeal after the parties briefed and obtained rulings from the trial court that compelled the case to binding arbitration in lieu of a jury trial on all issues. The appellate decision of October 24, 2013 did not decide the merits of the case, but discussed the issues to be decided in the eventual merits decision. The significance of the issues presented and the interlocutory nature of this appeal both make this case worth watching for further appellate proceedings.
The core issue in this appeal was the applicability of Colorado’s Uniform Arbitration Act (C.R.S. § 13-22-201, et seq.), based on recorded Declarations filed by the developer. The Declarations mandated that the HOA arbitrate any design/construction disputes with the developer. Immediately prior to suit, the Association sought to amend the Declarations in order to avoid the arbitration process for these claims. The interlocutory appellate issues resulted from the trial court’s order compelling the arbitration over the objections of the Association.
The trial court’s decision was based on a reading of the Colorado Revised Non-Profit Corporation Act (“CRNPC,” at C.R.S. § 7-127-107), which was found applicable to the Association.
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W. Berkeley Mann, Jr.W. Berkeley Mann, Jr. can be contacted at
mann@hhmrlaw.com
A Survey of New Texas Environmental Laws
December 30, 2019 —
Anthony B. Cavender - Gravel2GavelThis is a brief survey of many of the environmental and regulatory laws passed by the Texas Legislature and signed by the Governor in the 86th Regular Session of the Legislature, which ended in May 2019. Altogether, more than 1,300 laws were enacted in this session, including a surprising number of environmentally related bills. Most of these new laws take effect on September 1, 2019. This survey places them in the following broad categories: Air, Water; Waste; Disaster (principally because of the effects of Hurricane Harvey); and Miscellaneous.
(Special thanks to Jay Bowlby, a summer intern in our Houston office, who made a significant contribution to this survey.)
1.
Air
HB 1627—amends Section 386.001(2) of the Health and Safety Code to remove several counties from the list of counties with deteriorating air quality subject to the Texas Emissions Reductions Plan.
HB 1346—relates to the diesel emissions reductions incentives and gives the TCEQ flexibility in administering this program.
HB 2726—concerns amended air quality permit applications. The law provides that construction of a project may proceed, at the applicant’s own risk, after the TCEQ Executive Director has issued a draft permit including the permit amendment. However, this provision does not apply to a permit amendment affecting a concrete batch plant located within 888 yards of a residence.
HB 3725—creates the Texas Emissions Reduction Plan Trust Fund, which will be held by the Comptroller and administered by the TCEQ, which also administers the TERP program.
SB 698—authorizes the TCEQ to provide expedited processing of certain Texas Clean Air Act permit applications by increasing the agency’s permitting staff.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Stormy Skies Ahead? Important News Regarding a Hard Construction Insurance Market
August 13, 2019 —
Jason M. Adams - Gibbs GidenWord out of the construction insurance brokerage community is that the construction insurance industry has entered a hard market, seemingly overnight. Property (i.e. builder’s risk), liability and wrap-up markets are all reacting unfavorably, resulting in higher premiums and decreased availability of coverage options.
The prospect of a hard market has been looming for some time given massive weather driven property losses and historically low rates (among other factors). It appears the time is upon us.
Key takeaways for construction professionals are:
- Expect insurance premiums to go up, potentially significantly, at renewal time and/or when seeking a new project specific program (e.g., an OCIP, CCIP, etc.).
- Expect that the available coverage will get worse. Carriers may be unable to offer once standard coverage enhancements and/or may add new exclusions.
- If quotes have been offered consider locking them in now, before the underwriters are forced to increase the rates/restrict coverage, or pull the quotes entirely.
- With respect to wrap-ups and other project specific programs, consider requesting extensions now if the project is expected to go beyond the current policy term.
- As always, the risk management team (lawyer, broker, risk manager) should work together to carefully review contracts and coverage. This will become even more important if the carriers start to introduce new exclusions as a result of the hard market.
Hard markets come and go. The tough times are when true construction insurance professionals separate themselves from the pack and become the key to weathering the storm.
Jason M. Adams, Esq. is Senior Counsel at Gibbs Giden representing construction professionals (owners/developers, contractors, architects, etc.) in the areas of Construction Law, Insurance Law and Risk Management, Common Interest Community Law (HOA) and Business/Civil Litigation. Adams is also a licensed property and casualty insurance broker and certified Construction Risk & Insurance Specialist (CRIS). Gibbs Giden is nationally and locally recognized by U. S. News and Best Lawyers as among the “Best Law Firms” in both Construction Law and Construction Litigation. Chambers USA Directory of Leading Lawyers has consistently recognized Gibbs Giden as among California’s elite construction law firms. Mr. Adams can be reached at jadams@gibbsgiden.com. Read the court decisionRead the full story...Reprinted courtesy of
Seventh Circuit Confirms Additional Insured's Coverage for Alleged Construction Defects
August 10, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe Seventh Circuit held that the underlying complaint alleged an occurrence by asserting that the painting subcontractor was negligent in causing damage to the building. Westfield Ins. Co. v. Nat'l Decorating Serv., Inc., 2017 U.S. App. LEXIS 12516 (7th Cir. July 13, 2017).
McHugh Construction, the general contractor for construction of a 24 story condominium building in Chicago, retained National Decorating Service, Inc. as a subcontractor to perform all of the painting work. This meant National Decorating would paint the exterior of the building with a protective coating that was a waterproof sealant.
After completion, the building's board of managers sued McHugh, National Decorating, and others for damages resulting from faulty workmanship. The third amended complaint alleged: (1) significant cracking of the exterior concrete walls, interior walls, and ceilings; (2) significant leakage through the exterior concrete walls, balconies, and windows; (3) defects to the common elements of the building; and (4) damage to the interior ceilings, floors, interior painting, drywall, and furniture in the units.
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Tred R. Eyerly - Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
