Another Reminder to ALWAYS Show up for Court
July 20, 2020 —
Christopher G. Hill - Construction Law MusingsI have discussed the need to always respond to a lawsuit on multiple occasions here at Construction Law Musings. However, I keep reading cases where the defendant fails to appear either by pleading or in person. Such action is never a good idea as demonstrated once again in the case of Balfour Beatty Infrastructure, Inc. v. Precision Constr. & Mgmt. Group, LLC, a case out of the Eastern District of Virginia.
The basic facts are not a surprise and are taken from the magistrates report that was adopted by the District Court. Balfour Beatty and Precision entered into a subcontract for some electrical work at a project located in Loudoun County. The subcontract included an attorney fees provision and provided for liquidated damages for late performance and the typical damages for default. The project began in July of 2016 with substantial completion July 5, 2018. Precision failed to supply sufficient manpower and sent a letter to Precision stating the same. After an agreement between the parties regarding supplementation by Balfour Beatty and to the accompanying back charge, Balfour Beatty informed Precision by letter that it would be liable for any liquidated damages. The Owner began assessing liquidated damages and Balfour Beatty subsequently terminated the subcontract and discovered defective work by Precision.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
The National Building Museum’s A-Mazing Showpiece
July 09, 2014 —
Beverley BevenFlorez-CDJ STAFFThe “massive maze” designed by the Bjarke Ingels Group (BIG) is now open at the National Building Museum in Washington D.C., reported Architect Magazine. The roughly 60-foot square maze reaches about 18 feet, but the “walls slope in toward the center, allowing visitors to see more of the maze as they move through it.” When you reach the center, you get a complete overview of the maze.
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Harmon Towers Duty to Defend Question Must Wait, Says Court
March 01, 2012 —
CDJ STAFFThe Harmon Towers project in Las Vegas was eventually halted short of the planned forty-seven stories after “it was determined that there was substantial defective construction, including defective installation of reinforcing steel throughout the Harmon.” The American Home Insurance Company and Lexington Insurance Company put forth a claim that they had no duty to defend Perini Construction, the builder of the defective Harmon Towers. Further, American Home seeks to recover the monies American reimbursed Perini. The United States District Court of Nevada ruled in the case of American Home Assurance Co. v. Perini Building on February 3, 2012.
The two insurance companies covered Perini and its subcontractors, Century Steel, Pacific Coast Steel, and Ceco Concrete Construction. Century Steel was the initial subcontractor for the reinforcing steel; they were later acquired by Pacific Coast Steel. In this current case, Perini Construction is the sole defendant.
Perini sought a dismissal of these claims, arguing that without the subcontractors joined to the case, “the Court cannot afford complete relief among existing parties.” The court rejected this claim, noting that the court can determine the duties of the insurance companies to Perini, which the court described as “separate and distinct from those of the subcontractors.” The subcontractors “have not claimed an interest in the subject matter of the action.” The court concluded that it could determine whether Perini was entitled or not to coverage without affecting the subcontractors. The court rejected Perini’s claim.
Perini also asked the court to abstain from the case, arguing that it was better heard in a state court. The court noted that several considerations cover whether a case is heard in state or federal courts. The court noted that if the case weighed heavily on state law, the state courts would be the obvious location. Further, if there were a parallel action in the state courts, “there is a presumption that the whole suit should be heard in state courts.” This is, however, no parallel state suit, although the court noted that Perini has “threatened” to do so.
However, the issue of who is to blame for the problems at Harmon Towers has not been resolved. The court concluded that until the “underlying action” was concluded, it was premature to consider the issues raised in this case while the earlier lawsuit was still in progress. The court denied Perini’s motion to dismiss the case. Given that the outcome of the earlier construction defect case may lead to further litigation in state court, the District Court granted Perini’s motion to abstain, but staying their judgment until the construction defect case is resolved.
Read the court’s decision…
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How AI and Machine Learning Are Helping Construction Reduce Risk and Improve Margins
November 28, 2018 —
Manu Venugopal - Construction ExecutiveThe construction industry is often characterized as high risk and low margin. According to a McKinsey report, almost 98 percent of projects incur cost overruns or delays. Meanwhile, the construction productivity curve has remained flat when compared to other industries.
In the last decade, with the advent of cloud and mobile technologies, industry leaders have been focused on digitizing construction workflows. This has resulted in improved efficiencies, but also has created an explosion of new data sources in the construction industry. Project teams are now capturing and documenting data on mobile devices, site progress is documented via drones and sensors are used to create a connected jobsite.
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Manu Venugopal, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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ACS Obtains Overwhelming Jury Trial Victory for General Contractor Client
March 28, 2022 —
Scott R. Sleight - Ahlers Cressman & Sleight PLLCACS is pleased to share news of our recent $19.2 million victory for a general contractor client after a lengthy virtual jury trial involving the Nexus condominium project in downtown Seattle. On Tuesday March 22, 2022, ACS obtained a jury verdict awarding significant damages to our general contractor client and denying nearly all damages claimed against our client by the project owner. The 28-day jury trial commenced via Zoom on January 24 and involved testimony from more than two dozen witnesses on more than 185 discrete change issues and subcontractor pass-through claims as well as counterclaims from the owner for liquidated damages and other damages. Amazingly, after only two days of deliberating the jury reached a verdict resolving all claims overwhelmingly in favor of our general contractor client.
Our client was awarded $19.5 million on its claims totaling $20.6 million and largely defeated the owner’s counterclaims of $4.3 million, with the jury awarding only $318,000 to the owner. This results in a net judgment of $19.2 million in favor of our client. The ACS team, along with the client, worked incredibly hard on this case. The team includes lawyers Scott Sleight, Saki Yamada, Kristina Southwell, Cam Sheldon and paralegals Christina Granquist, Cydney Fermstad, Auzree Hightower, Amy Capell, Samina Helsley and Bernadette Bresee.
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Scott R. Sleight, Ahlers Cressman & Sleight PLLCMr. Sleight may be contacted at
scott.sleight@acslawyers.com
Energy Company Covered for Business Interruption Losses Caused by Fire and Resulting in Town-Ordered Shutdown
February 15, 2021 —
David G. Jordan - Saxe Doernberger & Vita, P.C.In the case of NextSun Energy Littleton, LLC v. Acadia Ins. Co., the United States District Court of Massachusetts held that once direct physical damage from a covered peril causes a covered business interruption loss, any increase in the duration of such business interruption, due to the enforcement of an ordinance or law, extends the coverage period provided for lost income. The Court further held that a policy exclusion for business interruption due to the enforcement of any ordinance or law not in force at the time of the loss only applies when the ordinance or law itself, not the enforcement action that it authorizes, was not in force at the time of the loss.
The case involved a solar panel company, NextSun Energy Littleton (NextSun), that operated solar panel arrays providing electricity to the town of Littleton, Massachusetts. Due to a fire, 88 of the solar panels were damaged, and the Town immediately issued a “red-tag” order halting all energy-generating activity pending a safety inspection. The plaintiff purchased insurance for its panels along with “Energy Generating Income” (EGI) coverage, from the defendant, Acadia Ins. Co. (Acadia). The EGI policy covered “direct physical loss or damage” to “renewable energy generating equipment” and also covered the actual loss of surplus power income incurred during the interruption period. However, it excluded interruption of energy-generating income “caused by the enforcement of any ordinance, law, or decree … not in force at the time of loss.”
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David G. Jordan, Saxe Doernberger & VitaMr. Jordan may be contacted at
DJordan@sdvlaw.com
Is the Manhattan Bank of America Tower a Green Success or Failure?
April 15, 2014 —
Beverley BevenFlorez-CDJ STAFFConstruction Digital reported that the Bank of America tower in Manhattan, New York, “has been conversely hailed as both the greenest skyscraper in the world and an energy-guzzling toxic tower that exposes the charade of the LEED rating system.” It is the first skyscraper to ever achieve the highest LEED Platinum rating. However, a critic alleged that the eighty-year old Empire State Building “uses half the energy” of the new Bank of America tower.
The Bank of America tower, designed by architects Cook and Fox, was built with “local and recycled materials,” as well as “floor-to-floor insulated glazing” that maximizes “natural light and traps heat, and lights are automatically dimmed in daylight.” Rainwater is captured for reuse, and “waterless urinals save an estimated 8,000,000 US gallons of water per year.”
However, Construction Digital reported that Sam Roudman in New Republic Magazine “pointed out that buildings contribute more to global warming than any other sector of the economy, consuming more energy and producing more greenhouse gas emissions in America than every car, bus, jet, and train combined; and furthermore, than every factory combined.”
Joel Levy writing for Construction Digital declared, “We can call LEED a failed artifice and even suggest abandoning it as a pointless charade, but unless we want to live in caves and go back to using candles for light, we must accept the fact that the 155,000,000 people that make up America’s workforce power the country and indeed the world’s economy…need somewhere to work.”
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U.K. High Court COVID-19 Victory for Policyholders May Set a Trend in the U.S.
November 09, 2020 —
Andres Avila & Anastasiya Collins - Saxe Doernberger & VitaOn September 15, 2020, in a matter entitled The Financial Conduct Authority v. Arch & Others1, the High Court of Justice of England and Wales, the equivalent of a trial court in the U.S., issued a ruling on a COVID-19 business interruption insurance case (the “Judgment”). Significantly, the Court sided with policyholders on most key coverage issues under specific non-damage business interruption insurance coverage forms. U.S. policyholders should review whether any of their policies issued by U.K.-based carriers, which may be subject to English law and have the forms discussed below, are impacted by this favorable decision.
The Financial Conduct Authority (“FCA”), the U.K. financial regulatory body, brought the case to establish liability under 21 lead representative sample policy wordings from eight insurer defendants. The case was filed on an expedited basis on June 9, 2020 under the Financial Market Test Case Scheme, which is used for claims of general importance that require authoritative court guidance. Although the Judgment is legally binding only on the carriers who were parties to the action, the FCA estimates the case could affect 700 types of policies across 60 different insurers, and 370,000 small to medium-sized enterprises policyholders (“SME”) in the U.K. While the Judgment may be appealed, it is expected to incentivize insurers to settle their claims before the outcome of an appeal is known.
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Andres Avila, Saxe Doernberger & Vita and
Anastasiya Collins, Saxe Doernberger & Vita
Mr. Avila may be contacted at AAvila@sdvlaw.com
Ms. Collins may be contacted at ACollins@sdvlaw.com
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