Judge Nixes SC's $100M Claim Over MOX Construction Delays
February 16, 2017 —
Engineering News-RecordA federal judge on Feb. 8 dismissed a claim by the state of South Carolina against the U.S. Dept. of Energy over delayed construction of the Mixed-Oxide Fuel Fabrication Facility, near Aiken, S.C. The claim for financial compensation was part of a lawsuit the state filed in February 2016 seeking payment of $1 million per day—or an annual maximum of $100 million—for the MOX facility not producing fuel by Jan. 1, 2016.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
ASBCA Validates New Type of Claim Related to Unfavorable CPARS Review [i]
May 03, 2017 —
John P. Ahlers - Ahlers & Cressman PLLCFor government contractors, an unfavorable performance rating review posted to the Contractor Performance Assessment Reporting System (“CPARS”) can be extremely costly. Many of the government-negotiated solicitations include past performance as an important, and sometimes even primary, evaluation factor for contract award. An unfavorable CPARS review on a past contract can cause the contractor to incur substantial extra costs in addressing the unfavorable review with contracting officers on future solicitations, and, in some instances, the contractor saddled with an unfair or inaccurate CPARS may have to challenge the review and recover some of these costs.
Both the Federal Court of Claims and the Armed Services Board of Contract Appeals (“ASBCA”) have held that they have jurisdiction to hear Contract Dispute Act claims regarding unfair and/or inaccurate CPARS review. The relief available to contractors until this year was a declaration from the Court of Claims or Board that an unfair or inaccurate CPARS review was arbitrary and capricious. Neither the Board nor the Court had the authority or power to order the contracting officer to change the unfavorable review. The contractor who received a declaration from the Court or the Board regarding an unfavorable CPARS review may use it in the future to explain the unfavorable review when bidding new government work; however, the unfavorable review remains in the CPARS system and shows up on all future solicitations, the Board or Court decision notwithstanding.
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John P. Ahlers, Ahlers & Cressman PLLCMr. Ahlers may be contacted at
jahlers@ac-lawyers.com
Cold Weather Causes Power Blackouts, Disruptions on Jobsites
February 22, 2021 —
Autumn Cafiero Giusti - Engineering News-RecordA February cold snap in the central U.S. has created record power demand, resulting in outages from Texas to North Dakota and contractors bracing for delays and damage from weather impacts.
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Autumn Cafiero Giusti, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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State Farm Unsuccessful In Seeking Dismissal of Qui Tam Case
January 26, 2017 —
Tred R. Eyerly – Insurance Law HawaiiIn an insurance related case, the United States Supreme Court affirmed the Fifth Circuit's decision that State Farm was not entitled to a dismissal of a qui tam case involving its claims-handling after Hurricane Katrina. State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, ___ U.S. ___, 137 S. Ct. 436 (2016).
Before Katrina, State Farm issued two types of policies to homeowners: (1) Federal Government-back flood policies and (2) its own general homeowner policies. After Hurricane Katrina, State Farm's policies were responsible for wind damage, and the government policies were responsible for flood damage. Therefore, it was in State Farm's interest to classify hurricane damage as flood-related.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
#4 CDJ Topic: Vita Planning and Landscape Architecture, Inc. v. HKS Architects, Inc.
December 30, 2015 —
Beverley BevenFlorez-CDJ STAFFIn the above mentioned case, a Texas architectural firm (HKS Architects, Inc.) hired a California design firm (Vita Planning and Landscape Architecture, Inc.) as a sub-consultant, according to
Garret Murai of
Wendel Rosen Black & Dean LLP in a post on his
California Construction Law Blog. After Vita filed a complaint in California against HKS, HKS filed a motion to dismiss on the grounds that the landscape design contract included a “Texas forum selection clause.” The court found in favor of Vita, stating that “section 410.42 precludes enforcement of the forum selection clause requiring Vita to litigate its dispute against HKS in Texas.”
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In their article, “Court of Appeal Opens Pandora’s Box on Definition of ‘Contractor’ for Forum Selection Clauses,”
Haight Brown & Bonesteel LLP attorneys
Abigail E. Lighthart and
David A. Harris also analyzed the Vita case: “The Vita ruling expands the protections by Section 410.42 beyond traditional ‘builders’ to design professionals and architects who do not actually ‘build’ a project. What remains to be seen is whether other courts will take the expansion to cover other groups that are in any way involved in a construction project.”
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Building in the Age of Technology: Improving Profitability and Jobsite Safety
June 10, 2019 —
Maria Laguarda-Mallo - Construction ExecutiveNew virtual design and construction (VDC) technologies are quickly shifting how the AEC industry is designing, documenting and building. From the use of new software, apps and laser scanners, to the deployment of drones and robots, many early adopters are benefitting from fully integrating these solutions into their workflows.
Virtual and Augmented Reality
In an industry where collaboration is becoming increasingly important, regardless of the firm size, VR is enabling stakeholders to “see” and “walk” through a building before ground is broken. In other words, teams can foresee issues, ask questions and provide feedback in the preconstruction phase.
The inclusion of AR and VR in the daily workflows of AEC firms signifies expedited decision-making, reduced rework and real-time collaboration, which in turn translates to a reduction of unexpected costs.
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Maria Laguarda-Mallo, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Ms. Laguarda-Mayllo may be contacted at
maria.laguarda-mallo@viatechnik.com
Texas Court of Appeals Conditionally Grant Petition for Writ of Mandamus to Anderson
April 25, 2011 —
Beverley BevenFlorez CDJ STAFFThe Texas Court of Appeals conditionally grant mandamus relief to Anderson Construction Company and Ronnie Anderson (collectively “Anderson”)… from the trial court in a construction defect lawsuit filed by Brent L. Mainwaring and Tatayana Mainwaring. See Tex. Prop. Code Ann. 27.001-.007 (West 2000 & Supp. 2010). Relators contend the trial court abused its discretion by compelling discovery while the case was abated by operation of law.
The Court of Appeals opinion describes what led up to the proceedings: “The Mainwarings’ original petition identified certain defects in their Anderson-constructed home. Those defects concerned the roof trusses and framing, air conditioning, mortar and masonry, exterior doors and windows, and weep holes. With respect to the five areas of defects identified in their original petition, the Mainwarings gave Anderson the statutorily required notice on January 13, 2010. After implementing agreed extensions, Anderson made an offer of settlement for the defects the Mainwarings identified in their notice. Almost eight months later, the Mainwarings filed an amended petition adding defects they had not included in their original petition and notice. The additional defects the Mainwarings included in their amended petition had not been addressed by Anderson’s offer of settlement.”
Following these events, Anderson claimed the Mainwarings did not respond in writing to their settlement offer. “Anderson filed a verified plea in abatement on December 2, 2010. In the trial court, Anderson claimed that the Mainwarings failed to respond in writing to Anderson’s settlement offer, as required by Section 27.004(b) of the RCLA. See Tex. Prop. Code Ann. 27.004(b)(1). The Mainwarings moved to compel discovery responses from Anderson. The Mainwarings alleged that they rejected Anderson’s settlement offer, and that if their response was insufficient, they contend that Anderson’s offer was rejected by operation of law on the twenty-fifth day after the Mainwarings received it. See Tex. Prop. Code Ann. 27.004(i). The Mainwarings’ motion to compel was not supported by affidavit. See Tex. Prop. Code Ann. 27.004(d)(2). On January 13, 2011, Anderson filed a verified supplemental plea in abatement. Anderson alleged that the Mainwarings failed to provide written notice concerning the newly alleged defects and complained the Mainwarings were attempting to circumvent the inspection and resolution procedure of the RCLA. Over Anderson’s objection that the lawsuit had been abated, the trial court granted the Mainwarings’ motion to compel discovery.”
After listening to both sides, the Court of Appeals offered this reasoning for their opinion: “The parties do not dispute that Anderson inspected the property before the Mainwarings alleged the existence of additional defects in their amended pleading, nor do the Mainwarings claim that Anderson has been given an opportunity to inspect the additional defects the Mainwarings identified in their amended pleadings. We conclude the trial court did not have the discretion to deny or lift the abatement until the Mainwarings established their compliance with the statute. In other words, the Mainwarings are required to provide Anderson a reasonable opportunity to inspect the additional defects identified by their amended pleading, which will allow Anderson the opportunity to cure or settle with respect to the newly identified defects.”
The Court of Appeals spoke directly on the issue of mandamus relief: “The Mainwarings contend that mandamus relief is not available because the trial court’s ruling does not prevent Anderson from making settlement offers during the discovery process. ‘An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments.’ In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). The failure to abate a case is typically not subject to mandamus. See In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193, 196 (Tex. 2002) (citing Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985)). In this case, however, the case was abated by operation of law. By ignoring the statutory abatement, the trial court interfered with the statutory procedure for developing and resolving construction defect claims. See In re Kimball Hill Homes Tex., Inc., 969 S.W.2d 522, 525 (Tex. App. Houston [14th Dist.] 1998, orig. proceeding) (An appeal provides an inadequate remedy for the trial court’s failure to observe automatic abatement pursuant to the RCLA.). The benefits of mandamus review are not outweighed by the detriments of mandamus review in this case.“
In conclusion, “The trial court had no discretion to compel discovery while the case was abated, and Anderson, who has been compelled to respond to discovery during a period the case was under an automatic abatement, has no adequate remedy on appeal. Accordingly, we conditionally grant the petition for writ of mandamus. The writ will issue only if the trial court fails to vacate its order of February 3, 2011, and fails to refrain from proceeding with the case until a motion to reinstate is filed that establishes compliance with the notice and inspection requirements of the Residential Construction Liability Act.”
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How Will Artificial Intelligence Impact Construction Litigation?
September 12, 2023 —
Patrick McKnight - The Dispute ResolverIn the first half of 2023, artificial intelligence (“AI”) caught the public’s imagination. Attorneys have not been immune from the fever-pitch of commentary regarding the possible applications. While early adopters have had varying degrees of success, commentators have proposed various potential impacts on construction projects and disputes. This article discusses potential areas where AI can assist in preventing and resolving disputes from the pre-bid stage through project completion and close-out.
What is AI?
Artificial intelligence entered the popular zeitgeist accompanied by both optimistic and pessimistic predictions about the future. Internet searches on AI exploded in December 2022, reflecting a rapid and widespread public interest in the topic. The term “AI” itself is often loosely used to refer to a machine or computer software with the ability to conduct machine learning.[1] Whereas “automation” is the simple process of computing inputs, artificial intelligence refers to the ability to learn without additional programming from a human being. Now, increased computing power is finally helping some of the potential applications of this technology come into focus. Nonetheless, artificial intelligence is still maturing and is subject to “hallucinations” where the technology essentially generates erroneous nonsense.
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Patrick McKnight, Fox Rothschild LLPMr. McKnight may be contacted at
pmcknight@foxrothschild.com
