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Caltrans to Speak before California Senate regarding Bay Bridge Expansion

August 06, 2014 — Beverley BevenFlorez-CDJ STAFF
The San Francisco Chronicle reported that at an upcoming California Senate hearing, Caltrans is expected to defend itself against “allegations that they ‘gagged and banished’ engineers who identified construction problems on the new Bay Bridge eastern span and that the agency failed to maintain basic quality control on the project.” Members of the “Senate Transportation and Housing Committee will question Caltrans Director Malcolm Dougherty, other state officials and the head of the bridge's lead contractor, American Bridge/Fluor, about two reports last week from an investigator and a panel of six engineers who were critical of how the $6.4 billion project was managed.” Read the court decision
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The Importance of Engaging Design Professional Experts Early, with a Focus on Massachusetts Law

June 27, 2022 — Jay Gregory - Gordon & Rees Construction Law Blog
In any Massachusetts case alleging negligence against a design professional, an expert witness on the topic of liability is a critical, early consideration. Given the expense of expert witnesses, counsel representing design professionals are wise to evaluate (1) the need for an expert, (2) the timing of the engagement of an expert, and (3) the scope of the expert’s services. To begin, not every allegation of negligence against a design professional necessitates an expert opinion. “The test for determining whether a particular a particular matter is a proper one for expert testimony is whether the testimony will assist the jury in understanding issues of fact beyond their common experience.” Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Co., 439 Mass. 387, 402 (2003) (addressing duties of an insurer). For instance, in its ruling in Parent v. Stone & Webster Engineering Corp., the Massachusetts Supreme Court noted no expert would be necessary to prove professional negligence where an electrician was injured by a mislabeled distribution box carrying 2,300 volts. 408 Mass. 108 (1990). It is reasonable to expect lay jurors to comprehend the duty of an electrician to properly label a distribution box carrying potentially fatal quantities of voltage. To the extent liability is readily recognizable to the average juror (i.e. “within the ken of the average juror”), significant cost savings are achievable by forgoing the use of an expert witness. That, however, is the exception. Read the court decision
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Reprinted courtesy of Jay S. Gregory, Gordon Rees Scully Mansukhani
Mr. Gregory may be contacted at jgregory@grsm.com

California Booms With FivePoint New Schools: Real Estate

May 13, 2014 — John Gittelsohn – Bloomberg
FivePoint Communities Management Inc. is already constructing a school at its Great Park Neighborhoods project in Irvine, California, for 1,000 elementary and middle school students even as it’s still building the first 700 homes. “We build the schools ahead of time,” said Emile Haddad, chief executive officer of Aliso Viejo, California-based FivePoint, which has permits for about 10,000 homes at Great Park. “That way we always have them ready.” Local schools, along with parks and recreation facilities, have long been draws for buyers in new communities. Now, as school districts face tight construction budgets and homebuilders compete to attract families able to qualify for mortgages, developers are taking the lead on school construction instead of waiting for local governments to do the job. Read the court decision
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Reprinted courtesy of John Gittelsohn, Bloomberg
Mr. Gittelsohn may be contacted at johngitt@bloomberg.net

Judicial Economy Disfavors Enforcement of Mandatory Forum Selection Clause

December 16, 2023 — David Adelstein - Florida Construction Legal Updates
Mandatory forum (venue) selection provisions are generally construed in favor of enforceability. Parties agreed to the forum for disputes so why not enforce them, right? A recent federal district court case out of the Eastern District of Louisiana exemplifies an exception grounded in judicial economy which disfavors the enforceability of mandatory forum selection provisions. Keep in mind that this judicial economy exception is fairly limited but the fact pattern below demonstrates why enforcing the mandatory forum selection provision was disfavored due to judicial economy. In U.S. f/u/b/o Exposed Roof Design, LLC v. Tandem Roofing, 2023 WL 7688584 (E.D.La. 2023), a sub-subcontractor filed a Miller Act payment bond lawsuit against the prime contractor and the prime contractor’s Miller Act payment bond sureties. The sub-subcontractor also sued the subcontractor that hired it. However, the sub-subcontractor’s subcontract with the subcontractor included a mandatory forum selection provision in a different form. The subcontractor moved to sever and transfer the sub-subcontractor’s claims against it to the forum agreed upon in the subcontract. The trial court denied the severance and the transfer. Below are the reasons. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

COVID-19 Case Remanded for Failure to Meet Amount in Controversy

September 14, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court remanded to state court a loss of rent claim because the amount in controversy requirement was not met. Geragos & Geragos Fine Arts Bldg., LLC v. Travelers Indemn. Co., 2020 U.S Dist. LEXIS 127427 (C.D. Cal. July 20, 2020). Geragos suffered loss of rental income due to the COVID-19 tenant relief measures implemented in Los Angeles. The tenant relief orders would remain in effect for the duration of the emergency period, the end date of which was not presently set. Geragos submitted a claim for loss of rental income to Travelers. When the claim was denied, Geragos sued in state court. Travelers removed to federal district court. Geragos moved to remand the case back to state court for lack of subject matter jurisdiction. 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

Avoid Five Common Fraudulent Schemes Used in Construction

December 02, 2019 — Ken Van Bree - Construction Executive
Here’s an attention-getting statistic: A typical case of fraud in the construction industry has a median loss of $227,000, according to the 2018 Report to the Nations issued by the Association of Certified Fraud Examiners (ACFE) on occupational or internal fraud. This report further showed that the construction industry’s median loss is approximately $119,000 higher than the average fraud losses across all industries. Construction companies are most at risk for fraud related to corruption (such as bribes and kickbacks), billing related schemes, expense reimbursements, check tampering and equipment or material theft. This brings up three important questions:

What are the fraud schemes affecting your company?
How can contractors keep their companies from experiencing these types of fraud?
What is the profile of fraudster?

The threat of fraud can never be wholly removed; however, companies should take steps to identify likely fraud schemes they might face. Below are a number of schemes frequently used to defraud construction companies. Reprinted courtesy of Ken Van Bree, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Wilke Fleury Attorneys Featured in “The Best Lawyers in America” & “Best Lawyers: Ones to Watch” 2025 Editions

August 19, 2024 — Wilke Fleury LLP
2025 Best Lawyers & Ones to Watch George Guthrie, Best Lawyer Adriana Cervantes, One to Watch Steven Williamson, Best Lawyer Jason Eldred, One to Watch Daniel Foster, Best Lawyer David Frenznick, Best Lawyer Kathryne Baldwin, One to Watch Daniel Egan, Best Lawyer Wilke Fleury is extremely proud to have five attorneys recognized in The Best Lawyers in America and three attorneys recognized in the Best Lawyers: Ones to Watch in America! Best Lawyers has been regarded by lawyers and the public for more than 40 years as the most credible measure of legal integrity and distinction in the United States. Congratulations to this talented group! Read the court decision
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Reprinted courtesy of Wilke Fleury LLP

Defenses Raised Three-Years Too Late Estop Insurer’s Coverage Denial

February 21, 2022 — Michael S. Levine & Yaniel Abreu - Hunton Insurance Recovery Blog
Liability insurance typically affords broad defense coverage. But insurers sometimes reserve their right to challenge the insured’s right to a defense, or even outright terminate the defense. When this occurs after the insurer has been in exclusive control of the defense, some courts recognize that the consequences can be catastrophic for the insured defendant. Insurers, therefore, may be estopped from denying coverage where doing so will prejudice the insured. This is exactly what transpired in RLI Ins. Co. v. AST Engineering Corp., No. 20-214 (2d Cir. Jan. 12, 2022), where the Second Circuit affirmed the district court’s decision that an insurer’s attempt to withdraw the defense it had provided to its insured for three years would prejudice the insured. In AST Engineering, RLI sought a declaration that it did not have to defend the insured, AST, in two underlying cases in which AST was sued as a third-party defendant. The underlying cases concerned a construction project in New York City for which AST provided engineering drawings on October 28, 2012. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Yaniel Abreu, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Abreu may be contacted at yabreu@HuntonAK.com Read the court decision
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