Never, Ever, Ever Assume! (Or, How a Stuck Shoe is Like a Construction Project Assumption)
October 21, 2019 —
Melissa Dewey Brumback - Construction Law in North CarolinaThis summer, I had the fortune of taking a trip to Europe. The first place I visited was Amsterdam. A lovely town with a lot of culture and more canals than you can shake a stick at. I was meeting family there, but had hours to kill ahead of time. So, I decided to take the train from the airport into the City Centre, leave my bags at the train station luggage locker, and begin exploring.
My plan took its first misstep when I attempted to board the train. Not being in a hurry, I let the other passengers get on first. Sure, I noticed the train conductor blowing his whistle while I stepped onto the train, but figured I was fine since I was already on the steps up. Until, that is, the door began to close, with me in the doorway, suitcase in the train, one foot inside, and one foot mid step up to the cabin. The door closed on my backpack (which was still on my back), but I managed to force it into the train compartment. My shoe, however, was not quite as lucky. Part of my shoe made it inside, and part was outside the door.
No worry– just look for the door release mechanism, right? Wrong! There was none. The train started up, with my shoe still halfway in and halfway out of the train. (Luckily my foot itself made it inside all in one piece). The conductor came along to scold me, and told me that he could *probably* rescue my shoe once we got to Central Station. In the meantime, I sat on a nearby jump seat, keeping tabs on my shoe and fuming that this was *not* the way I planned to start my vacation. Long story short– the train conductor was able to salvage my shoe, but not without a lot of commentary on how I should never have boarded the train after the whistle blew. Lesson learned.
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Melissa Dewey Brumback, Ragsdale Liggett PLLCMs. Brumback may be contacted at
mbrumback@rl-law.com
Deescalating Hyper Escalation
July 05, 2023 —
Paul F. Williamson - Construction Executive Recent years have seen the construction industry get hit by a perfect storm of rising costs, workforce shortages, delivery delays, supply-chain issues, inflation, interest-rate hikes and materials price escalation. The cost of construction has become more expensive, leaving all parties to grapple with the sufficiency of their risk-management strategies and the ramifications of contracts that are ill-equipped to deal with unprecedented cost increases. Of particular concern to industry participants are the volatile price fluctuations that construction materials have undergone and how to appropriately mitigate the risks they present.
Although owners, general contractors and subcontractors may seek to mitigate future risks, many who are party to an existing contract all too often must scramble to divine how to absorb significantly more financial risk than they expected pre-pandemic. Contracts that were bid and entered into prior to the pandemic may have seen, in some instances, double- and triple-digit percent increases in prices due to hyper escalation, with little recourse to address such situations. While parties to private contracts are free to mitigate their risk through contract negotiations, parties to federal or state public procurements are somewhat more constrained.
Reprinted courtesy of
Paul F. Williamson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Tenth Circuit Finds Insurer Must Defend Unintentional Faulty Workmanship
December 09, 2011 —
Tred R. Eyerly - Insurance Law HawaiiApplying Colorado law, the Tenth Circuit found a duty to defend construction defect claims where the faulty workmanship was unintentional. Greystone Const. Inc. v. National Fire & Marine Ins. Co., 2011 U.S. App. LEXIS 22053 (10th Cir. Nov. 1, 2011). A prior post [here] discussed the Tenth Circuit’s certified question to the Colorado Supreme Court in this matter, a request that was rejected by the Colorado court.
In two underlying cases, Greystone was sued by the homeowner for damage caused to the foundation by soil expansion. In both cases, the actual construction was performed by subcontractors. Further, in neither case was the damage intended or anticipated. Nevertheless, National Union refused to defend, contending property damage resulting from faulty construction was not an occurrence.
Relying on a Colorado Court of Appeals case, General Security Indemn. Co. of Arizona v. Mountain States Mut. Cas. Co., 205 P.3d 529 (Colo. App. 2009), the district court granted summary judgment to National Union.
On appeal, the Tenth Circuit first considered whether Colorado legislation enacted to overturn General Security could be applied retroactively. The statute, section 13-20-808, provided courts "shall presume that the work of a construction professional that results in property damage, including damage to the work itself or other work, is an accident unless the property damage is intended and expected by the insured."
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com
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Aarow Equipment v. Travelers- An Update
January 16, 2024 —
Christopher G. Hill - Construction Law MusingsPreviously here at Musings, I discussed the application of pay if paid clauses and the Miller Act. The case that prompted the discussion was the Aarow Equipment & Services, Inc. v. Travelers Casualty and Surety Co. case in which the Eastern District of Virginia Federal Court determined that a “pay if paid” clause coupled with a proper termination could defeat a Miller Act bond claim. However, as I found out a couple of weeks ago at the VSB’s Construction Law and Public Contracts section meeting, the 4th Circuit Court of Appeals reversed and remanded this case in an unpublished opinion (Aarow Equipment & Services, Inc. v. Travelers Casualty and Surety Co.)
In it’s opinion, the 4th Circuit looked at some of the more “interesting” aspects of this case. One of these circumstances was that Syska (the general contractor) directed Aarow to construct sedimentary ponds and other water management measures around the project (the “pond work”), which both agreed was outside of the scope of the work defined in their subcontract. Syska asked that the government agree to a modification of the prime contract and asked Aarow to wait to submit its invoice for the pond work until after the government issued a modification to the prime contract and Syska issued a change order to the subcontract.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Partner John Toohey and Senior Associate Sammy Daboussi Obtain a Complete Defense Verdict for Their Contractor Client!
December 11, 2023 —
Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is excited to share that Newport Beach attorneys John Toohey and Sammy Daboussi obtained a complete defense verdict after years-long litigation in favor of their concrete contractor client.
This lawsuit arises from a claim made by Plaintiff for construction defects in a high-end single-family home. Our client was hired to perform concrete work on the foundations of the home. It was alleged that the home’s foundation was incorrectly built. It was further alleged that the construction defects/errors led to delays and substantial expenses. We argued that our client relied on the certifications provided to them by design professionals and the City. We further argued that our client, like any reasonable concrete/foundation subcontractor, has no responsibility or obligation, contractual or otherwise, to review and recheck the work completed by a licensed professional.
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Bremer Whyte Brown & O'Meara LLP
U.S. Building Permits Soared to Their Highest Level in Nearly Eight Years
June 17, 2015 —
Michelle Jamrisko – BloombergThrough all its ups and downs, the U.S. homebuilding industry is making slow progress.
While housing starts declined 11.1 percent in May to a 1.04 million annualized rate, it followed a revised 1.17 million pace the prior month to cap the best back-to-back readings since late 2007, Commerce Department data showed Tuesday in Washington. Permits for future projects climbed to the highest level in almost eight years.
The stop-and-go nature of the rebound, which has been exacerbated by the inclement weather that brought construction to a near standstill at the start of the year, masks a steady recovery in the industry at the center of the past recession. While residential real estate has yet to fulfill its typical role as a pillar of this economic expansion, gains in hiring and bigger paychecks are brightening Americans’ moods and could lift home purchases in the second half of 2015.
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Michelle Jamrisko, Bloomberg
OSHA Begins Enforcement of its Respirable Crystalline Silica in Construction Standard. Try Saying That Five Times Real Fast
November 02, 2017 —
Garret Murai - California Construction Law BlogOn October 23, 2017, the U.S. Occupational Safety and Health Administration (OSHA) began enforcement of its Respirable Crystalline Silica in Construction Standard (Construction Silica Standard). OSHA enforcement of its Construction Silica Standard actually began on September 23, 2017, but for a period of 30 days, OSHA offered compliance assistance in lieu of enforcement for employers who were making good faith efforts to comply with the Construction Silica Standard.
California’s Occupational Safety and Health Administration (Cal/OSHA) has a nearly identical construction silica standard that requires employers to limit worker exposure to respirable crystalline silica above 25 micrograms per cubic meter of air (25 μg/m3) as an 8-hour time-weighted average (TWA) under any foreseeable condition.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
The Condominium Warranty Against Structural Defects in the District of Columbia
July 24, 2023 —
Nicholas D. Cowie - Cowie Law GroupTHE CONDOMINIUM WARRANTY AGAINST STRUCTURAL DEFECTS
Condominium developers in Washington DC are required by statute to warrant against structural defects in residential condominiums. District of Columbia Condominium Act (“DC Condo Act”) § 42-1903.16(b). The warranty applies to both condominium common elements and each condominium unit. It requires a developer to repair structural defects, including any resulting damage to the condominium caused by a common element structural defect. DC Condo Act § 42-1903.16(a-1)(2). The statute creating this warranty is called the “Warranty Against Structural Defects,” contained in the DC Condo Act § 42-1903.16.
“Structural Defects” Defined
The warranty applies to “structural defects,” which are very broadly defined to include many types of construction defects. Structural defects are not just limited to defects in the supporting structure of the building. Rather, a structural defect can be any condition that:
“(A) Reduces the stability or safety of unit or common elements below standards commonly accepted in the real estate market,” or
(B) Restricts the normally intended use of all or part of the common elements of a unit and which requires repair, renovation, restoration, or replacement to serve the purpose for which it was intended.”
DC Condo Act § 42-1903.16(j)(6).
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Nicholas D. Cowie, Cowie Law GroupMr. Cowie may be contacted at
ndc@cowielawgroup.com