Arizona Purchaser Dwelling Actions Are Subject to a New Construction
September 04, 2019 —
William L. Doerler - The Subrogation StrategistArizona recently amended its Purchaser Dwelling Action statute to, among other things, involve all contractors in the process, establish the parties’ burdens of proof, add an attorney fees provision, establish procedural requirements and limit a subcontractor’s indemnity exposure. The governor signed the bill—2019 Ariz. SB 1271—on April 10, 2019, and the changes go into effect and apply, retroactively “to from and after June 30, 2019.” The following discussion details some of the changes to the law.
Notice to Contractors and Proportional Liability
Under the revised law, a “Seller” who receives notice of a Purchaser Dwelling Action (PDA) from a residential dwelling purchaser pursuant to A.R.S. § 12-1363* has to promptly forward the notice to all construction professionals—i.e. architects, contractors, subcontractors, etc., as defined in A.R.S. § 12-1361(5)—that the Seller reasonably believes are responsible for an alleged construction defect. A.R.S. § 12-1363(A). Sellers can deliver the notice by electronic means. Once construction professionals are placed on notice, they have the same right to inspect, test and repair the property as the Seller originally placed on notice. A.R.S. § 12-1362(B), (C).
To the extent that the matter ultimately goes to suit, A.R.S. § 12-1632(D) dictates that, subject to Arizona Rules of Court, construction professionals “shall be joined as third-party defendants.” To establish liability, the purchaser has the burden of proving the existence of a construction defect and the amount of damages. Thereafter, the trier of fact determines each defendant’s or third-party defendant’s relative degree of fault and allocates the pro rata share of liability to each based on their relative degree of fault. However, the seller, not the purchaser, has the burden of proving the pro rata share of liability for any third-party defendant. A.R.S. § 12-1632(D).
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
Federal Contractors Should Request Debriefings As A Matter Of Course
May 30, 2018 —
Scott MacDonald - Ahlers Cressman & Sleight BlogFederal Contractors—especially those engaging in FAR Part 15 direct contract negotiations—should make it a routine practice to timely request debriefings after the Contracting Agency excludes the bidder from the competitive range (“pre-award debriefing”) or after the Agency issues the award (“post-award debriefing”). Debriefings allow the Contractor to understand the evaluation process used by the Contracting Agency and to receive an assessment of how it fared in that evaluation. This is not a one-sided presentation as Contracting Agencies are required to answer the contractor’s relevant questions about the decision-making process. Properly run debriefings can be used to better tailor future bids and negotiations, as further marketing to the Contracting Agency for future awards, and, occasionally, to unearth grounds for a potential protest if any part of the evaluation process is out of sync with the FARs. In the event the contractor learns of a basis for protest at the debriefing, the deadline to file a protest begins running from the date of the debriefing—whether it was required or not.
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Scott MacDonald, Ahlers Cressman & Sleight PLLCMr. MacDonald may be contacted at
scott.macdonald@acslawyers.com
Report Highlights Trends in Construction Tech, Digitization, and AI
November 11, 2024 —
Aarni Heiskanen - AEC BusinessBluebeam, a top technology provider for AEC professionals, has just released its “Building the Future: Bluebeam AEC Technology Outlook 2025” report. This report highlights key global trends in construction technology, including the role of AI and digital tools. Based on insights from over 400 AEC technology leaders, the report also uncovers challenges that prevent full-scale adoption of these tools.
The online research surveyed technology decision-makers (managers or above) within AEC firms in the US, UK, Canada, France, Spain, Germany, Australia, and New Zealand in July 2024.
AI’s Growing Role in Construction
According to the report, 74% of surveyed AEC professionals are now using AI in one or more phases of building projects. AI is especially popular in the design (48%) and planning (42%) stages. Many AEC firms recognize its value: over half (55%) of companies using AI say it’s crucial, and most now allocate up to 25% of their budgets to AI initiatives. Despite this support, concerns over AI regulation are significant. About 54% of respondents are worried about regulations, and 44% say this impacts their use of AI.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Don’t Ignore the Dispute Resolution Provisions in Your Construction Contract
June 05, 2023 —
David Adelstein - Florida Construction Legal UpdatesDon’t ignore dispute resolution provisions in a construction contract. Sometimes, you may want to. But dispute resolution provisions should be one of the first provisions you look to when a dispute arises recognizing these provisions will be raised if you fail to comply. Not only will they be raised, but the presumption is they will be enforced. This is the situation that was raised in Seminole County, Florida v. APM Construction Corp., 2023 WL 3555356 (Fla. 5th DCA 2023).
Here, a contractor was terminated for cause by Seminole County. The contractor then filed suit against the County. The County moved to dismiss the lawsuit because the contractor failed to comply with contractual presuit administrative procedures in the contract prior to filing a lawsuit. While the trial court denied the County’s motion to dismiss, the appellate court granted the County’s petition for writ of certiorari quashing the trial court’s order denying the motion to dismiss. For purposes of granting the writ of certiorari, the appellate court held irreparable harm existed because “certiorari jurisdiction is properly exercised when a trial court permits a party to litigate when there is a contractual or legal obligation to first administrative proceed.” Seminole County, supra, at *2.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
New York Nonprofit Starts Anti-Scaffold Law Video Series
February 10, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to readMedia, The Lawsuit Reform Alliance of New York (LRANY) has released “‘Victims of the Scaffold Law’ video series” that highlights “the impact of New York's ‘Scaffold Law’ on small businesses, taxpayers, and, specifically New York's Minority and Woman Owned Business Enterprises.”
The New York Scaffold Law “imposes total liability on contractors and property owners in lawsuits for gravity-related construction accidents, regardless of any contributing negligence by the worker,” reports readMedia. Furthermore, the law “is responsible for over half of the largest settlements in the state and dramatically increases the cost of liability insurance and construction in New York.”
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When Customers Don’t Pay: What Can a Construction Business Do
June 06, 2022 —
Patrick Hogan – Handle.comLate payments are not unusual in construction. From general contractors to subs and material suppliers, every construction project participant has dealt with delayed payments as part of business. However, there’s the issue of clients who refuse to pay. Not late--just no payment. For businesses big and small, a client who refuses to pay can make a significant impact financially and operationally. Many construction transactions are made on trust, and when a client doesn’t pay, some contractors and suppliers may make poor decisions. Yet, to get out of a project going sideways--with payment in hand or lessons learned--you need to be smart and proceed with your business interest in mind.
Why is the customer not paying?
This is where it begins. You must first identify the reasons why a customer refuses to pay. Were they unsatisfied with the quality of work? Do they feel that what was delivered was not aligned with what’s contractually obligated? Do they feel like the work was rushed or the materials used inferior? Was the job finished later than agreed? All these are possibilities that need to be investigated.
If the customer has not volunteered any of this information, it’s best to personally visit the project or set a meeting with the customer to discuss issues in person. If the problems the customer has raised are valid, plan how to resolve them right away. Suppose, after the discussion, you’ve determined that the customer demands things beyond what’s contractually obligated, and you cannot resolve them without incurring unreasonable time and costs. In that case, you might have a delinquent customer in your hands.
Let the customer know your decision. If you’ve decided to proceed and fix the issues they’ve raised, send the invoice for the unpaid work immediately upon commencing the remedial work. Of course, there is no guarantee that addressing their concerns will result in swift payment, so exercise your best judgment. If you think you’ve exhausted all the cordial means to get them to pay as the contract requires, you might need to consider your legal options.
A legal option to recover payments: Filing a mechanics lien
State laws protect construction providers like contractors and material suppliers from non-payment through lien laws. Mechanics liens work by placing a hold on the property where the work or materials were provided as a security in case of non-payment. Mechanics liens can result in a sale of the property where the lien is attached, and the proceeds will be used to pay unpaid vendors.
When a client fails to pay after a good-faith pursuit to resolve the payment issue, filing a mechanics lien becomes the smartest next move. However, note that to file a mechanics lien, you must have fulfilled the requirements of lien laws specific to the state where the project is located. For many states, the main requirement is sending a preliminary or pre-lien notice to secure your right to file liens. It’s only good business practice to
file preliminary notices for every project you work on. It’s not an indication of distrust in the client’s ability to pay–and that is mentioned in the wording of many statutory statements included in preliminary notices. It’s just industry standard to file prelim notices.
Filing a mechanics lien includes a period where the client still has the opportunity to pay arrears before the lien is enforced. Suppose the client fails to pay in this period. You are now allowed to enforce the mechanics lien through a lawsuit. This is a complex process, but it presents itself as the last resort to recover payments. As long as all your documents are in check, you’ve filed the necessary notices in the time and manner required by law, and you’ve fulfilled your contractual obligations to the client, a ruling in your favor is the likely outcome.
Promoting timely payments
It’s in your best interest to promote timely payments from your customers. While construction contracts are primarily reliant on trust, there are many things you can do to encourage and facilitate timely payments from your clients. Here are some ideas:
- Use detailed contracts and progress billing
- Vet clients through background research, credit history, references, and public financial records
- Send regular on-time invoices
- Ensure your invoices are aligned with the formats used by your client’s payables department
- Provide multiple payment methods
- File the necessary preliminary notices throughout the project
In the case of construction payments, the adage prevention is better than cure applies. There are many reasons why payments get delayed or skipped, some malicious, some not. It’s in your best interest to ensure that you are doing everything from your end to promote timely payments and that you’re fully protected by rights granted to construction businesses by law.
About the Author:
Patrick Hogan is the CEO of
Handle.com, where they build software that helps contractors and material suppliers with lien management and payment compliance. The biggest names in construction use Handle on a daily basis to save time and money while improving efficiency.
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BHA Has a Nice Swing: Firm Supports NCHV and Final Salute at 2017 WCC Seminar
May 03, 2017 —
CDJ STAFFBert L. Howe & Associates (BHA) is excited to announce the return of their very popular Sink a Putt for Charity at the 2017
West Coast Casualty Construction Defect Seminar. This year, participant’s efforts on the green will help benefit both the
National Coalition for Homeless Vets and
Final Salute. As in years past, sink a putt in the BHA golf challenge and win a $25 Amazon gift card, and for every successful putt made, BHA will make a $25 cash donation in the golfer’s name to be distributed equally between these two worthy organizations.
While at the booth, don’t forget to test out BHA’s industry leading data collection and inspection analysis systems. BHA has recently added video overviews to their data collection process, as well as next-day viewing of inspection data via their secured BHA Client Access Portal. Discover meaningful cost improvements that translate to reduced billing while providing superior accuracy and credibility. Also learn about BHA’s expanding market presence and full range of services in Texas, Florida, and across the Southeast United States.
Attendees can also enter to win Dodger baseball tickets or a new iPad Pro! Other BHA giveaways include USB charging blocks, pocket tape measures, multi-tools, LED flashlights, and foam stress balls.
For more information on the National Coalition for Homeless Vets, please visit: http://nchv.org/
To learn more about how Final Salute provides homeless women Veterans with safe and suitable housing, please visit: http://www.finalsaluteinc.org/
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A Court-Side Seat: Flint Failures, Missed Deadlines, Toad Work and a Game of Chicken
October 05, 2020 —
Anthony B. Cavender - Gravel2GavelThe last few weeks have yielded a number of interesting developments in the Federal courts.
FEDERAL COURTS OF APPEAL
In re Flint Water Cases
Several local and State of Michigan officials, including the former governor, requested dismissal from the civil litigation seeking damages for the massive failure of Flint, Michigan’s public drinking water system. On August 5, 2020, the U.S. Court of Appeals for the Sixth Circuit agreed that the plaintiffs, residents of Flint, have successfully pled a case that the conduct of the defendants so “shocked the conscience” that a claim for a violation of their substantive due process rights was appropriately alleged. The defendants, including the former governor, argued that they were entitled to a qualified immunity defense. The court rejected this argument on the basis of the earlier decisions made by the court in this matter. Judge Sutton concurred because he was bound by this precedent, but remarked that the evidence for the governor’s culpability was very thin; he was not intimately connected to the extraordinary error in judgment. The majority was very upset with this concurrence as indicted by their own opinion.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
