Columbus Ohio Building Expert Directory

Construction Defect Claims are on the Rise Due to Pandemic-Related Issues

April 25, 2022 — Beverley BevenFlorez – CDJ Staff
According to a recent New York Times article, pandemic-related issues such as “stop-and-start construction, global supply chain issues, pressure from lenders and yo-yoing housing prices” has caused an increase in construction defect suits for new apartment developments: “Complaints and legal claims are already emerging, signaling that a confluence of all factors amid the Covid crisis could continue to be a problem for new construction — from entry-level studios to top-tier penthouses — for years to come, according to lawyers and development consultants.” A Times analysis of Department of Buildings data by Marketproof demonstrated an increase in complaints beginning March 1st, 2020: “During the first year of the pandemic, new residential buildings recorded an average of five complaints per building, a 46 percent jump from the same period the previous year.” Steven D. Sladkus, a partner at Schwartz Sladkus Reich Greenberg Atlas told the Times that his “'phone’s been ringing off the hook' with complaints from homeowners in new condo buildings” regarding “heating problems, poor sound insulation, fire safety issues and faulty elevators.” Developers have faced a variety of pandemic-related challenges including a disrupted supply chain, shut downs, shipping delays, labor shortages, and increased material prices. In 2020, the lack of availability of vaccines caused some construction to halt: “Suddenly one guy calls in sick and the whole crew of electricians can’t show up,” Steven Zirinsky, co-chair of the building codes committee at the New York chapter of the American Institute of Architects told the Times. Read the court decision
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Manufacturer of Asbestos-Free Product May Still Be Liable for Asbestos Related Injuries

July 30, 2015 — Kristian B. Moriarty, R. Bryan Martin and Lee Marshall – Haight Brown & Bonesteel LLP
In Sherman v. Hennessy Industries, Inc. (No. B252566, filed June 18, 2015), the Court of Appeal, Second District, reversed a trial court’s grant of summary judgment in favor of a manufacturer of a brake grinding machine. The Court cited an exception to the general rule that manufacturers may not be held liable, under a strict products liability theory, where the plaintiff’s injuries arise from other products that are used in conjunction with the defendant’s product. Plaintiff and appellant, Michael Sherman, was an automobile mechanic from 1962 to 1977. Mr. Sherman alleged that during this period he used an arcing machine, which abraded brake linings by means of sand paper moving at high speeds. Sherman alleged the machine released asbestos dust, which he then brought home, exposing his wife Debra Sherman to asbestos. Ms. Sherman developed mesothelioma and passed away from exposure to the asbestos dust carried home by her husband. Reprinted courtesy of Kristian B. Moriarty, R. Bryan Martin and Lee Marshall of Haight Brown & Bonesteel LLP Mr. Moriarty may be contacted at kmoriarty@hbblaw.com Mr. Martin may be contacted at bmartin@hbblaw.com Mr. Marshall may be contacted at lmarshall@hbblaw.com Read the court decision
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Negligence Claim Not Barred by Gist of the Action Doctrine

February 18, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Pennsylvania Supreme Court held that the insureds' negligence claim survived because it was not based upon breach of a duty created by the policy, but upon the alleged breach of a duty imposed by tort law. Bruno v. Erie Ins. Co,, 2014 Pa. LEXIS 3319 (Dec. 15, 2014). After purchasing their home, the insureds obtained a homeowner's policy from Erie. A separate endorsement covered loss to the property caused by "fungi," which was included as any form of mold. The endorsement obligated Erie to pay up to $5,000 for loss caused by mold. The policy required Erie to pay the cost of testing the air to confirm the absence or presence of mold. If mold was present, Erie was to pay for the cost of removal, including the cost of tearing out any part of the property needed to gain access to the mold. While renovating the basement, the insureds discovered two areas of black mold in close proximity to leaking water pipes. Erie was notified and sent an adjuster to view the mold. The adjuster took no action, but returned a couple of days later with an engineer. The adjuster and engineer informed the insureds that the mold was harmless and that health problems associated with mold were a media frenzy and overblown. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Construction Defect Lawsuits Hinted for Dublin, California

February 07, 2013 — CDJ STAFF
Without naming the community, the blog Around Dublin says that a condo community in Dublin, California may be prepping for a construction defect lawsuit. According to the article, the problems include a façade peeling away from the building, cracks in walls and granite countertops, and issues with both the HVAC systems and the plumbing. The homeowners association is said to have insufficient reserve funds to address the problems. Read the court decision
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No Coverage for Homeowner Named as Borrower in Policy but Not as Insured

July 08, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The magistrate judge recommended that the homeowner's complaint seeking coverage for damage caused by Hurricanes Laura and Delta be denied because the homeowner was only named as the borrower under the policy. LeDay v. Integon Nat'l Ins. Co., 2024 U,S. Dist. LEXIS 87369 (W.D. La. April 15, 2024). When the homeowner sought coverage for hurricane damage, it was denied. The homeowner then sued and Integon moved to dismiss. Integon argued it did not issue a policy to the homeowner, but the policy was issued to Midland Mortgage. The pro se homeowner did not respond to the motion. 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

SkenarioLabs Uses AI for Property Benchmarking

December 04, 2018 — Aarni Heiskanen - AEC Business
AI continues to be a hot topic across industries. The PropTech startup SkenarioLabs has a data analytics solution that utilizes AI. The results have been successful from the perspective of property owners: reliable technical surveys that contribute to making smart investment decisions. Topi TiihonenWhile automatic valuation is not a recent invention for property owners and investors, there has not previously been an available service that combines it with technical surveying. SkenarioLabs has been building a system that digitizes technical surveys in order to help property owners manage their properties. The algorithm extracts a property’s technical risk from the market value. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

From Both Sides Now: Looking at Contracts Through a Post-Pandemic Lens

August 03, 2020 — Lori S. Smith - White and Williams
A little over a year ago, I wrote a blog post about the danger of relying on precedent. Now, more than ever, clients and their advisors need to revisit contract forms on which they may have been relying for years. While many of us have lived through times that required certain adjustments in how we viewed contractual obligations — recessions, wars, oil embargoes, natural disasters, 9/11 — none of these events had the widespread and long-lasting impact that the current COVID-19 pandemic is having. None of these events shut down the U.S. economy and impacted global supply chains across every industry in the manner we are now experiencing. With this in mind, there is a need to figure out what the “new normal” will look like for contract negotiations in a post-pandemic world. Business professionals need to now anticipate more widespread disruption than we could have ever before imagined. It isn’t just force majeure clauses or material adverse effect provisions, as these will likely add pandemics and government shutdowns to their ever-growing list of contemplated risks, if they were not already expressly covered. And it is not clear, at least in the near-term, whether a resurgence or mutation of COVID-19 or the emergence of another virus can truly be seen as unforeseeable in a post-COVID world. The issues are much more fundamental to the approach that parties may take in negotiating contracts. Commercial contracts between purchasers, vendors, distributors, licensors and licensees will need to evaluate allocation of risk from both sides and come to a new happy medium that all can live with in an ever-evolving world. While parties should review their standard contracts in their entirety, some key provisions to think about include:

Length of the contract and exclusivity. Depending on which side you are on, you may want to reconsider a long-term arrangement that ties your company to a particular vendor or distributor. Supply chain disruption can have a seriously detrimental impact on your business. Are requirements contracts where a particular supplier is required to make available all of your needs for a certain good or service really the best arrangement for your business? What about take or pay arrangements where you are obligated to which are common in certain industries pay a minimum amount or a penalty to a supplier whether or not you actually purchase the contemplated volume of goods ? Do you really want to be tied up in an exclusive arrangement, or do you need flexibility to maintain secondary or tertiary sources of supply? Do you want to provide a licensee with an exclusive right to your technology (even within a limited field of use or industry sector)?

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Reprinted courtesy of Lori S. Smith, White and Williams
Ms. Smith may be contacted at smithl@whiteandwilliams.com

Constructive Changes – A Primer

October 02, 2018 — Jonathan R. Mayo - Smith Currie
A “constructive change” occurs when an owner action or omission not formally acknowledged by the owner to be a change in the contact’s scope of work forces the contractor to perform additional work. Constructive changes are not formal change orders, but informal changes that could have been ordered under a contract’s changes clause if the change had been recognized by the owner. The constructive change doctrine recognizes that being informally required to do extra work is similar to a formal change order and should be governed by similar principles. Thus, if it is found that a constructive change order did occur, the contractor may be entitled to payment for additional costs incurred, and an extension to the contract performance period. Constructive changes most often arise where there is a dispute regarding contract interpretation, defective plans and specifications, acceleration or suspension of work, interference or failure to cooperate with the contractor, misrepresentation or nondisclosure of superior knowledge or technical information, over inspection, or a delay in providing requested information crucial to the contractor’s ability to continue work. Read the court decision
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Reprinted courtesy of Jonathan R. Mayo, Smith Currie
Mr. Mayo may be contacted at jrmayo@smithcurrie.com

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