Seattle Washington Building Expert Directory

Doctrine of Avoidable Consequences as Affirmative Defense

January 31, 2018 — David Adelstein - Florida Construction Legal Updates

The doctrine of avoidable consequences is an affirmative defense that can be used in certain property damage lawsuits. This is a defense that does not go to liability, but it goes to damages. This doctrine of avoidable consequences defense holds that a plaintiff cannot recover damages caused by a defendant that the plaintiff could have reasonably avoided . See Media Holdings, LLC v. Orange County, Florida, 43 Fla.L.Weekly D237c (Fla. 5th DCA 2018). Stated differently, if the plaintiff could have reasonably avoided the consequences of the damages caused by the defendant then the plaintiff cannot recover those damages. However, the defendant needs to prove this defense — the burden is on the defendant to establish this defense (ideally through expert testimony).

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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

Regions Where Residential Construction Should Boom in 2014

January 13, 2014 — CDJ STAFF
Construction Digital reports that five regions should see a boom in residential construction in 2014, based on research from McGraw-Hill Construction. According to the report, the rise in residential construction is likely to be as much as 26% in single-family housing, with an 11% rise expected in multi-family housing. The regions that should benefit the most from these are Houston, Atlanta, Phoenix, Denver, and Los Angeles. Cities that want to be in on the 2014 boom are advised to “lower permit fees,” offer “construction grants and loans,” and to get the word out to contractors that the area is going to provide a favorable environment for contractors. Read the court decision
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Condominium Association Responsibility to Resolve Construction Defect Claims

July 23, 2014 — Nicholas D. Cowie – Maryland Condo Construction Defect Law Blog
The Maryland Court of Special Appeals recently issued an opinion in Greenstein v. Council of Unit Owners of Avalon Court Six Condominium Inc. finding that an association can be sued by its unit owner members if it fails to take timely legal action against a developer. In that case, the association was aware of construction defects, but failed to take action to preserve its claim and then filed a lawsuit against the developer too late, after the statute of limitations expired. As a result, the suit against the developer was dismissed and the association was forced to assess its unit owner members for the $1 million in repair costs. Some of the unit owners then sued their association, seeking to recover the cost of their assessments on the ground that the association was negligent in failing to pursue a timely legal action against the developer. On appeal, the court was asked to decide whether state law permits owners to sue their condominium association for negligently failing to sue a developer for common element construction defects. The court, in an unpublished opinion, found that an association could be held liable to its members. The court said: “The duty to maintain, repair and replace the common elements together with the exclusive right to initiate litigation regarding the common elements [which was stated in a provision of the association’s bylaws] creates a concomitant obligation on the part of the [association] to pursue recovery from [the developer] on behalf of [the unit owners] for damage to the common elements caused by [the developer’s] negligence, breach of contract or violation of any applicable law.” Read the court decision
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Reprinted courtesy of Nicholas D. Cowie, Maryland Condo Construction Defect Law Blog
Mr. Cowie may be contacted at ndc@cowiemott.com

Pay Inequities Are a Symptom of Broader Gender Biases, Studies Show

May 17, 2021 — Pam Radtke Russell, Debra K. Rubin, Janice L. Tuchman & Alisa Zevin - ENR
Pay gaps between men and women are a problem in the AEC industry and beyond—and they are a sign of complex, systemic problems in companies. “It’s more of a symptom,” said Elizabeth Walgram, senior consultant in the compensation and career strategies practice at human resources consulting firm Segal. Reprinted courtesy of Pam Radtke Russell, ENR, Debra K. Rubin, ENR, Janice L. Tuchman, ENR and Alisa Zevin, ENR Ms. Russell may be contacted at Russellp@bnpmedia.com Ms. Rubin may be contacted at rubind@enr.com Ms. Tuchman may be contacted at tuchmanj@enr.com Ms. Zevin may be contacted at zevina@enr.com Read the court decision
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With No Evidence of COVID-19 Being Present, DC Trial Court Finds No Claim for Business Interruption

September 28, 2020 — Tred R. Eyerly - Insurance Law Hawaii
A D.C. Superior Court rejected a business interruption claim due to closures related to the COVID-19 pandemic. Rose's 1, LLC v. Erie Ins. Exchange, Civil Case No 2020 CA 002424 B (Order dated Aug. 8, 2020). The decision is here. Plaintiffs owned a number of restaurants in the District of Coiumbia. Plaintiffs had commercial property coverage in a policy issued by Erie. The policy provided coverage for loss of income sustained due to interruption of business resulting directly from "loss or damage" to the insured property. DC Mayor Bowser issued a series of orders in March 2020 which closed all non-essential businesses, including plaintiffs' restaurants. Plaintiffs filed claims with Erie. When coverage was denied, plaintiffs filed suit. Both sides moved for summary judgment. The dispute centered on whether the closure of the restaurants due to the mayor's orders constituted a "direct physical loss" under the policy. Plaintiffs argued that the loss of use of the restaurants was "direct" because the closures were the direct result of the mayor's orders without intervening action. The court reasoned, however, that the orders were governmental edicts that commanded individuals and businesses to take certain actions. Standing alone and absent intervening actions by individuals and businesses, the orders did not effect any direct changes to the properties. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

French Government Fines National Architects' Group $1.6M Over Fee-Fixing

December 09, 2019 — Debra K. Rubin - Engineering News-Record
The French government’s anti-trust agency has fined the national architects’ registration group and four regional councils $1.64 million (€1.5 million) for price-fixing design fees on public works. Reprinted courtesy of Debra K. Rubin, Engineering News-Record Ms. Rubin may be contacted at rubind@enr.com Read the full story... Read the court decision
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Commercial Real Estate Brokerages in an Uncertain Russian Market

March 28, 2022 — Cait Horner & Adam J. Weaver - Gravel2Gavel Construction & Real Estate Law Blog
Several commercial real estate firms have joined the growing list of companies temporarily suspending – or outright terminating – property and facility management operations in Russia amid economic sanctions and mounting international pressure. CBRE is the latest to make such a move, discontinuing its Russian leasing, investment and property management operations and denouncing Russia’s invasion of Ukraine in a statement issued March 7th. Other major players, including Savills, Knight Frank, and Colliers, have already suspended operations in the country, citing similar concern for international sanctions and the humanitarian impact of the invasion. Colliers is going even further to suspend operations in Belarus as well. Recently, global real estate service giant JLL switched course, issuing a formal statement that “with great sadness,” it will begin the process of separating from its domestic operations in Russia, though not commenting on whether the separation will be temporary or permanent. This is a significant change from just earlier this month , where, when asked about pulling operations from the country, JLL stated it would stay abreast of the situation abroad and continue to ensure the safety of its people and clients. Now that CBRE and Dallas-based JLL have joined the list, Houston-based powerhouse Hines appears to be continuing its “wait and see” approach. Hines currently owns Russian assets valued at $2.9 billion, nearly 2 percent of its entire $160 billion asset portfolio, and its property management portfolio manages more than 243 million square feet worldwide. While other firms have temporarily suspended current operations, Hines has gone so far as to say it will avoid servicing any future investments in the country, though it did similarly condemn Russia’s actions. With JLL’s recent decision , if Hines does take a stronger stance, it will likely happen soon. Reprinted courtesy of Cait Horner, Pillsbury and Adam J. Weaver, Pillsbury Ms. Horner may be contacted at cait.horner@pillsburylaw.com Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com Read the court decision
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Court Rules in Favor of Treasure Island Developers in Environmental Case

July 09, 2014 — Beverley BevenFlorez-CDJ STAFF
A California court ruled that the Environmental Impact Report (EIR) that had been approved by the city of San Francisco was adequate for the proposed 8,000-home development on Treasure Island, according to the San Francisco Business Times. The suit had been brought by Citizens for a Sustainable Treasure Island back in 2011. However, in December of 2012, “a lower court affirmed the EIR and the citizens’ group appealed that decision.” The project was proposed by partners Lennar Corp. and Wilson Meany. The development would “add thousands of new housing units along with retail, hotel and office space in addition to renovating historic buildings and creating 300 acres of open space.” Read the court decision
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