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DIRECTORY AND CAPABILITIES

A Court-Side Seat: NWP 12 and the Dakota Access Pipeline Easement Get Forced Vacations, while a Potential Violation of the Eighth Amendment Isn’t Going Anywhere

August 10, 2020 — Anthony B. Cavender - Gravel2Gavel
Here’s a report on several new decisions made over the past few days. U.S. SUPREME COURT U.S. Army Corps of Engineers v. Northern Plains Resources Council On July 8, 2020, the Court has issued a partial stay of the decision of the U.S. District Court for Montana, which had held that the nationwide use by the Corps of Engineers of its Nationwide Permit 12 to permit oil and gas pipelines must be vacated because the Corps, when it reissued these permits in 2012, failed to follow the requirements of the Endangered Species Act. The breadth of this ruling seems to have surprised and alarmed many past and perspective permittees of the Corps. The stay will not apply to the ongoing Ninth Circuit litigation. FEDERAL COURTS OF APPEAL Vega, et al. v. Semple (The U.S. Court of Appeals for the Second Circuit) On June 29, 2020, the court refused to dismiss a putative class action by past and present inmates of Connecticut’s Garner Correctional Institution who alleged that state correctional officials exposed them to excessive amounts of radon gas in violation of the Eighth Amendment. These officials are alleged to have been “deliberately indifferent” to inmate safety. A 1993 Supreme Court decision, Helling v. McKiney, clearly established the law in this area, and the Garner facility opened in 1992. The defense clams of limited immunity as to federal law violations were rejected. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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You May Be Able to Dodge a Bullet, But Not a Gatling Gun

November 16, 2020 — Garret Murai - California Construction Law Blog
In the days before cable, and long before Netflix, I watched my fair share of spaghetti westerns on lazy weekend afternoons. Bullets zinging past cowboys, knocking off hats, and ricocheting off rocks. But while you might get lucky and dodge a bullet, not so with a Gatling gun.* In the next case, C. W. Johnson & Sons, Inc. v. Carpenter, Case No. B300187 (August 7, 2020), a contractor who was unlicensed during a portion of a project dodged a bullet. However, I’m not so sure that he’s going to be able to dodge the hail of bullets that are coming after. The C. W. Johnson & Sons Case As cases go, the C. W. Johnson & Sons case is pretty straightforward. In March 2016, Contractor C. W. Johnson & Sons, a family owned flooring company, was contracted to install flooring at Randall Carpenter’s house for a total contract price of $68,343. Work was performed between March and September 2016 including some warranty, repair and corrective work after September 2016. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Top Five General Tips for All Construction Contracts

October 26, 2020 — Christopher G. Hill - Construction Law Musings
For this week’s Guest Post Friday here at Musings we welcome Spencer Wiegard. Spencer is a Partner with Gentry Locke Rakes & Moore, LLP. He is a member of the firm’s Construction Law and Commercial Litigation practice groups. Spencer focuses his practice in the areas of construction law and construction litigation. Spencer is a member of the Board of Governors for the Virginia State Bar Construction Law and Public Contracts Section, and a member of the Legislative Committee of the Associated General Contractors of Virginia and the Executive Committee for the Roanoke/SW Virginia District of the Associated General Contractors of Virginia. I would like to thank Chris for inviting me to author today’s guest post. Over the past few days, I have found myself wading through the terms and conditions of a lengthy and complicated construction contract, while at the same time aggressively negotiating for Houston house leveling cost readjustments. As I slogged through the legalese, I was reminded of a presentation that I gave earlier this year to the Roanoke District of the Virginia Associated General Contractors. The district’s executive committee asked me to speak to its members concerning the broad topic of “Construction Contracts 101.” At the beginning of my presentation, I passed along my top five general tips for all construction contracts. Although some of these tips may sound like common sense, I often encounter situations where these basic rules are violated by experienced contractors, subcontractors, suppliers and design professionals. My top five general tips for all construction contracts are:

1. Reduce the terms of the agreement to writing.
   1. The written agreement should include all important and relevant information and terms. If it was important enough to discuss prior to signing the contract, it is important enough to include in the written contract;
   2. At a minimum, include who, what, when, where, how, and how much;
   3. Both parties should sign the written agreement; and
   4. Don’t ignore handwritten changes to the contract, as these changes may either mean that you don’t have a deal, or they may become part of the contract when you sign it.
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   Reprinted courtesy of The Law Office of Christopher G. Hill
   Mr. Hill may be contacted at chrisghill@constructionlawva.com

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   No Choice between Homeowner Protection and Bankrupt Developers?

   February 10, 2012 — CDJ STAFF
   

   Donna DiMaggio Berger, writing in the Sun Sentinel argues those may be the only current choices in Florida. A recent court case, Lakeview Reserve HOA v. Maronda Homes has caused a swift response from the legislators. Ms. Berger notes that the construction defect bill, HB 1013, “would take away a homeowner’s rights to pursue a developer for defects to the driveways, roads, sidewalks, utilities, drainage areas and other so-called ‘off-site’ improvements.” The alternative? She notes that applying the Maronda decision would “bankrupt developers who don’t build defect-free roads and sidewalks.”

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   Hammer & Hand’s Top Ten Predictions for US High Performance Building in 2014

   January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
   On Hammer & Hand’s blog, Sam Hagerman, Skylar Swinford, and Dan Whitmore discuss how they expect US high performance building policy to evolve in 2014. The three consultants and builders have built “some of the most notable high performance green building projects around, including Karuna House,” “Pumpkin Ridge Passive House,” and the “Glasswood Commercial Passive House Retrofit,” according to the blog. Hagerman and Whitmore also have served on the Passive House Alliance US board. Predictions cover topics such as Net Zero Energy to Net Positive Energy buildings, renewable energy productions, building energy codes, CO2 heat pumps, and more. Read the court decision
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   Reprinted courtesy of
   

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   Tenth Circuit Finds Insurer Must Defend Unintentional Faulty Workmanship

   December 09, 2011 — Tred R. Eyerly - Insurance Law Hawaii
   

   Applying 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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   Court Rejects Insurer's Argument That Two Triggers Required

   May 12, 2016 — Tred R. Eyerly – Insurance Law Hawaii
   The court rejected the insurer's argument that two triggers - one for exposure to asbestos and one for resulting injury - were required under CGL policies. Compass Ins. Co. v. University Mechanical and Engineering Contractors, Inc., 2016 U.S. Dist. LEXIS (N.D. Cal. March 25, 2016). University Mechanical and Engineering Contractors, Inc. (UMEC) was a California corporation in the business of installing plumbing, piping and HVAC systems. UMEC was defending a number of asbestos cases in California state courts arising from its subcontracting work. 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

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   Suit Limitation Provisions in New York

   January 28, 2025 — Bill Wilson - Construction Law Zone
   New York law generally enforces a contractual suit limitation that specifies a “reasonable” period of time (usually shorter than the applicable statute of limitations) within which an action must be commenced. The contractual suit limitation needs to be fair and reasonable, given the circumstances of each particular case. The New York Court of Appeals recently examined this precedent in the context of an insurance policy enforcing an insurance contract’s two-year suit limitation period in Farage v. Associated Insurance Management Corp., 2024 N.Y. Slip Op. 05875 (Nov. 26, 2024). In Farage, a Staten Island multi-unit apartment building was damaged in a fire. The plaintiff owner filed its full repair claim for damages with its insurer six years after the fire and four years after the expiration of the contractual limitation period. The insurer denied the claim. The plaintiff filed suit for breach of contract and breach of the covenant of good faith fair dealing. The insurer moved to dismiss the action based on the two-year limitation provision in the insurance contract. Read the court decision
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   Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
   Mr. Wilson may be contacted at wwilson@rc.com

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