Another Municipality Takes Action to Address the Lack of Condominiums Being Built in its Jurisdiction
March 12, 2015 —
Heather M. Anderson – Higgins, Hopkins, McLain & Roswell, LLCWhether you are in the market to downsize or are looking to be a first time home buyer, you have likely noticed that your housing options in Colorado have become extremely limited over the course of the last several years. If you are a contractor and have worked on multi-family projects in the recent past, you know why the housing options are limited in the State of Colorado. In the past two years, there have been studies commissioned and articles published in local periodicals investigating the extreme slowdown seen in the construction of owner-occupied multi-family housing, namely condominiums and townhomes. Those of us involved in and with the construction industry are intimately familiar with the lengthy, complicated, and incredibly expensive construction defect litigation that has plagued multi-family construction in the State of Colorado and brought it to a virtual halt.
And now, local municipalities and elected officials are starting to take notice. Most recently, the City of Lone Tree passed Ordinance No. 15-01, to become effective on April 1, 2015. According to the City of Lone Tree, Ordinance No. 15-01 is “aimed at encouraging the development of owner-occupied, multi-family residential projects through the adoption of regulations designed to balance the risk and exposure to builders and developers of such projects, while still protecting homeowners from legitimate construction defect claims.”
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Heather M. Anderson, Higgins, Hopkins, McLain & Roswell, LLCMs. Anderson may be contacted at
Anderson@hhmrlaw.com
Don't Count On a Housing Slowdown to Improve Affordability
June 13, 2022 —
Conor Sen - BloombergAs mortgage rates continue to rise, all eyes are fixed on the housing market for signs of a potential slowdown. But any slowdown that does materialize won't affect the industry equally because it isn't going to be about fundamental problems with the housing market. Rather, it will be the result of the Federal Reserve intentionally increasing borrowing costs to cool off inflation.
The Fed's efforts are happening in the context of a supply-constrained market where homebuilders have been struggling to complete as many homes as they would like. Any negative impact of rising mortgage rates would be felt disproportionately where affordability problems already are the worst — high-cost coastal markets — and then in materials for the early part of the construction cycle, such as lumber.
Understanding the nature of the housing challenge is important so that you aren’t tempted to compare the situation with past downturns. For now, at least, there is no broad industry downturn as we’ve seen before in oil and gas or the technology sector that would lead to the housing market suffering in places like Houston or the San Francisco Bay Area. Homeowners haven't taken on too much debt, and there's no inventory glut — quite the opposite, in fact — that would lead to a broad-based downturn.
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Conor Sen, Bloomberg
Colorado Abandons the “Completed and Accepted Rule” in Favor of the “Foreseeability Rule” in Determining a Contractor’s Duty to a Third Party After Work Has Been Completed
January 17, 2013 —
Brady Iandiorio, Higgins, Hopkins, McLain & Roswell, LLCIn a recent case, the Colorado Court of Appeals found that a contractor had a duty to a third party to warn it of a dangerous condition, even after the contractor had completed its work and the owner had accepted the contractor’s work. Collard v. Vista Paving Corp., -- P.3d --, 2012 WL 5871446 (Colo. App. 2012). While not an earth shattering or entirely new concept, the decision rendered in Collard directly accepted the foreseeability rule at the expense of the completed and accepted rule. Id.
In Collard, the City of Grand Junction (“the City”) hired Vista Paving Corp. (“Vista”) to construct two road medians according to the City’s plans and designs. On July 9, 2007, Vista began work on the medians. According to its contract with the City, Vista was responsible for traffic control during construction of the medians. On July 19, 2007, Vista completed its construction of both medians. On that date, the City’s project inspector conducted his final inspection of Vista’s work. The City’s inspector then told Vista that its work had been completed and that Vista was authorized to leave the site. Vista requested permission to remove the traffic control devices to which the City’s inspector agreed. Vista removed all of its traffic control devices.
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Brady IandiorioMr. Iandiorio can be contacted at
iandiorio@hhmrlaw.com
Foreclosures Decreased Nationally in September
October 29, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to the San Diego Source, in “September 2014, there were 46,000 completed foreclosures nationally, down from 68,000 in September 2013, a year-over-year decrease of 32.6 percent and down 61 percent from the peak of completed foreclosures in 2010, according to the September National Foreclosure Report of CoreLogic.”
Between 2000 and 2006, “completed foreclosures averaged 21,000 per month nationwide.” Furthermore, the San Diego Source reported that “[s]ince the financial crisis began in September 2008, there have been approximately 5.2 million completed foreclosures across the country, and since homeownership rates peaked in Q2 of 2004, there have been approximately 7 million homes lost to foreclosure.”
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Are Modern Buildings Silently Killing Us?
May 16, 2022 —
Michael Rubino - Construction ExecutiveConstruction, in general, is a rapidly evolving industry as contractors, architects, and engineers are tasked with keeping up with government regulations, building practices and technological innovations. While growth and evolution are pivotal components of successful projects and businesses, it’s led to a few issues, one of which involves mold.
Like the construction industry, the world of mold is evolving as more research, understanding, and awareness develops, highlighting its prevalence in buildings and the effect it can have on the health of those exposed. What industry professionals are witnessing time and again is an increasing occurrence of individuals reaching out and asking for help after experiencing exposure that led to chronic illness. The reality is that modern buildings are contributing to this rise.
The Top of the Funnel
An issue aiding in mold’s prevalence in modern-day buildings is the way in which they are built. In an effort to achieve net-zero energy-efficient buildings, construction professionals have adopted the technique of sealing buildings as tightly as possible. While this transition reduces energy costs in the building, it also introduces a few new problems that aren't always addressed in modern construction. One such issue is how the lack of airflow between the indoor and outdoor environments can lead to a buildup of contaminant particles in the building.
Reprinted courtesy of
Michael Rubino, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Alabama Still “An Outlier” on Construction Defects
October 14, 2013 —
CDJ STAFFWhile many state Supreme Courts have determined that faulty construction work can be an occurrence under a standard commercial liability policy, the Alabama Supreme Court has taken the contrary view. Writing on the Kilpatrick Townsend blog, Carl A. Salisbury and Edmund M. Kneisel point out that the decision makes Alabama “an outlier,” and they ask, “how much longer will the outliers hold out?”
They note that in the underlying construction defect case, “the arbitrator awarded $3 million in compensatory damages to the homeowners because of improperly installed flashing; improperly installed brick; the lack of weep holes in the brick; improperly installed doors and windows; improper construction of the upper porches; faulty construction of the roof; improper installation of a bathtub.” They summarize: “the house must have leaked like a colander.”
When the insurer denied coverage, the contractor sued. The insurer argued that “the CGL policy form does not cover construction-related acts or omissions because such acts are not an insured ‘occurrence.’” Mr. Salisbury and Mr. Kneisel point out that “the Alabama Supreme Court agreed.”
The problem they see is that “if there is no insurance for any intentional act, then insurance is simply a rip-off — it covers nothing.” They quote Justice Benjamin Cardozo to this effect: “To restrict insurance to cases where liability is incurred without fault of the insured would reduce indemnity to a shadow.” Their argument is that the Alabama decision was not the “correct position,” as exemplified by recent decisions from West Virginia, North Dakota, Connecticut and Georgia. The case “was a prime opportunity for the Alabama Supreme Court to leave the ranks of the outliers and join the majority view.”
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Federal Defend Trade Secrets Act Enacted
July 14, 2016 —
Michael B. McClellan & Jason L. Morris – Newmeyer & Dillion LLPOn May 11, 2016, President Obama signed the Defend Trade Secrets Act (“DTSA”) into law,
creating a private federal civil cause of action for trade secret misappropriation. This landmark
legislation, a product of bipartisan backing and significant support from the business
community, will affect businesses and individuals operating in almost every economic sector
across the country. The DTSA will potentially be at issue any time an employee with access to
confidential, proprietary, and trade secret information moves on to a competitor or launches
a startup that competes with the former employer. This will be true so long as the product
or service that the trade secret relates to is either used in or intended for use in interstate
or foreign commerce. Under present commerce clause jurisprudence, the vast majority of
businesses providing products and services in the United States will be affected by this new law.
The DTSA will provide, for the first time, a codified federal civil remedy for
misappropriation of trade secrets. Although most states have adopted some version of the
Uniform Trade Secrets Act (“UTSA”), there remains significant variation between the states in
their application of the UTSA and litigants face significantly different statutory frameworks
depending upon which state holds jurisdiction over the dispute. In addition, prior to this
new law, litigants were limited to pursuing their claims for misappropriation of trade secrets
in state courts, unless federal diversity jurisdiction applied to the dispute. The DTSA changes
that dynamic, providing original federal subject matter jurisdiction over trade secret disputes.
Reprinted courtesy of
Michael B. McClellan, Newmeyer & Dillion and
Jason L. Morris, Newmeyer & Dillion
Mr. McClellan may be contacted at Michael.mcclellan@ndlf.com
Mr. Morris may be contacted at Jason.morris@ndlf.com
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False Implied Certifications in Making Payment Requests: What We Can Learn from Lance Armstrong
January 20, 2020 —
Brian S. Wood & Alex Gorelik - ConsensusDocsIn April 2018, the Department of Justice announced a $5M settlement reached in its lawsuit against former professional cyclist, Lance Armstrong. While the fallout from Armstrong’s latently-admitted use of performance-enhancing drugs (“PEDs”) was well-publicized, including lost sponsorship deals, stripped Tour de France titles, and damage to his reputation, few were aware of Armstrong’s exposure to liability and criminal culpability for false claims against the government. The DOJ’s announcement reminded Armstrong and the rest of us of the golden rule of dealing with the government: honesty is the best policy. The corollary to that rule is that dishonesty is costly.
Armstrong’s liability stemmed from false statements (denying the use of PEDs) he made, directly and through team members and other representatives, to U.S. Postal Service (“USPS”) representatives and to the public. USPS was the primary sponsor of the grand tour cycling team led by Armstrong. The government alleged in the lawsuit that Armstrong’s false statements were made to induce USPS to renew and increase its sponsorship fees, in violation of the False Claims Act.
The Statute
Enacted in 1863, the False Claims Act (“FCA”) was originally aimed at stopping and deterring frauds perpetrated by contractors against the government during the Civil War. Congress amended the FCA in the years since its enactment, but its primary focus and target have remained those who present or directly induce the submission of false or fraudulent claims. The current FCA imposes penalties on anyone who knowingly presents “a false or fraudulent claim for payment or approval” to the federal Government. A “claim” now includes direct requests to the Government for payment, as well as reimbursement requests made to the recipients of federal funds under federal benefits programs (such as Medicare). Thirty-one states, the District of Columbia, and Puerto Rico have also enacted laws imposing penalties for false claims against state agencies and their subdivisions, with most of these laws modelled after the federal FCA.
Reprinted courtesy of
Brian S. Wood, Smith, Currie & Hancock, LLP and
Alex Gorelik, Smith, Currie & Hancock, LLP
Mr. Wood may be contacted at bswood@smithcurrie.com
Mr. Gorelik may be contacted at agorelik@smithcurrie.com
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