COLUMBUS OHIO BUILDING EXPERT
DIRECTORY AND CAPABILITIES

California Plant Would Convert Wood Waste Into Hydrogen Fuel

January 10, 2022 — James Leggate - Engineering News-Record
A climate-focused tech company announced plans to open a $100-million plant outside Bakersfield, Calif., to convert wood waste into hydrogen fuel to prevent the material from emitting greenhouse gases. There has been no construction contract award, to date. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Despite Misapplying California Law, Federal Court Acknowledges Virus May Cause Physical Alteration to Property

October 26, 2020 — Scott P. DeVries, Michael S. Levine & Michael L. Huggins - Hunton Insurance Recovery Blog
On August 28, Judge Stephen V. Wilson of the Central District of California, entered the latest ruling in the ongoing saga of the COVID-19 business interruption coverage dispute between celebrity plaintiff’s attorney Mark Geragos and Insurer Travelers. The case, 10E, LLC v. The Travelers Indemnity Co. of Connecticut, was filed in state court. Travelers removed to federal court, where Geragos sought remand and Travelers moved to dismiss. Judge Wilson denied remand and granted the Motion to Dismiss, finding plaintiff did not satisfactorily allege the actual presence of COVID-19 on insured property or physical damage to its property. This holding is inconsistent with long standing principles of California insurance law and appears to improperly enhance the minimal pleading threshold under Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (To survive a motion to dismiss, a complaint need only allege a claim “that is plausible on its face.”). After rejecting Geragos’ attempt to have the case remanded based on a finding that Geragos had fraudulently joined a defendant to avoid removal, the Judge proceeded to the Motion to Dismiss which raised three issues: (1) the effect of the Virus Exclusion in the Travelers’ Policy, (2) whether plaintiff failed to allege that the governmental orders prohibited access to its property, and (3) whether plaintiff could “‘plausibly allege that it suffered ‘direct physical loss or damage to property’ as required for civil authority coverage.’” Rather than address the effect of the exclusion, which would be the narrowest issue (this exclusion is not present in all policies), the Court proceeded directly to the third issue, which has the broadest potential application. Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth, Michael S. Levine, Hunton Andrews Kurth and Michael L. Huggins, Hunton Andrews Kurth Mr. DeVries may be contacted at sdevries@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Huggins may be contacted at mhuggins@HuntonAK.com Read the court decision
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Subcontractors Essential to Home Building Industry

February 14, 2014 — Beverley BevenFlorez-CDJ STAFF
The National Association of Home Builders (NAHB), Eye on Housing reports that subcontractors are essential to the home building industry—a point that is often overlooked by those outside of the industry. According to the NAHB, “71 percent of those employed in the home building industry are subcontractors.” The average number of subcontractors used in single-family detached homes in 2012 was twenty-five, however larger builders used more subcontractors: “On average, builders who built more than 25 units used 32 subcontractors during 2012, compared to 23 for builders who built less than 25 units.” Read the court decision
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Wyncrest Commons: Commonly Used Progress Payments in Construction Contracts Do Not Render Them Installment Contracts

December 11, 2023 — Benjamin J. Hochberg - Peckar & Abramson, P.C.
In BIL-JIM Construction Company, Inc. v. Wyncrest Commons, LP, 2023 WL 7276637 (Unpublished, decided November 3, 2023), the New Jersey Appellate Division was asked to consider two issues regarding the interpretation and application of a construction contract that utilized the standard form American Institute of Architects owner/contractor agreement (AIA Document A101-2007) (the “AIA Contract”). Specifically, it was asked to consider: 1) whether a modified AIA Contract was an “installment contract,” whereby each progress payment was subject to its own statute of limitations; and 2) whether and when work had been approved in the context of New Jersey’s Municipal Land Use Law. While the decision is presently unpublished, it provides guidance as to how form contracts utilizing the same or similar terms will be treated by New Jersey’s courts and is a reminder that the potential for future claims must be considered during contract negotiations. Discussion The primary issue in Wyncrest was whether an AIA Contract was an “installment contract,” and the remaining issues turned on the resolution of this question. Wyncrest, the owner for the project at issue, did not dispute that its contractor, BIL-JIM Construction Company, Inc., had not been fully paid for work that it had performed in connection with a construction project located in Ocean County, New Jersey. Instead, Wyncrest argued that because its AIA Contract with BIL-JIM required that invoices be presented and paid monthly, it constituted an “installment contract.” As such, older payments would be treated as individual transactions and were time barred by the applicable statute of limitations. The trial court agreed with Wyncrest’s characterization of the AIA Contract as an “installment contract,” and found that BIL-JIM’s invoices were each subject to their own statute of limitations. However, the trial court disagreed with Wyncrest’s argument that BIL-JIM’s claim for retainage—which was submitted at the end of its work at the project—was time barred. Read the court decision
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Reprinted courtesy of Benjamin J. Hochberg, Peckar & Abramson, P.C.
Mr. Hochberg may be contacted at bhochberg@pecklaw.com

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Builders FirstSource to Buy ProBuild for $1.63 Billion

April 15, 2015 — Prashant Gopal – Bloomberg
Builders FirstSource Inc., a Dallas-based maker of materials for new homes, rose the most on record after saying it agreed to buy competitor ProBuild Holdings LLC for $1.63 billion. ProBuild, based in Denver, operates about 400 lumber and building product distribution, manufacturing and assembly centers serving 40 U.S. states, according to a statement Monday. The companies had 2014 combined revenue of $6.1 billion. Builders FirstSource surged 68 percent to $11.57. It was the biggest one-day gain ever for the shares, which began trading in June 2005. Read the court decision
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Negligent Construction an Occurrence Says Ninth Circuit

June 30, 2011 — CDJ STAFF

One June 27, the US Court of Appeals has rejected an appeal from Mid-Continent Casualty Company. Mid-Continent had appealed a summary judgment granted to Titan Construction Company.



Titan Construction had built condominiums for the Williamsburg Condominium Association, which later filed a construction defect lawsuit against Titan and other defendants. Titan settled with the developer, Kennydale, assigning its rights against Mid-Continent to Kennydale. Mid-Continent filed suit, claiming that “it had no obligation to indemnify or defend Titan, Kennydale, or various other defendants.” The district court found in favor of Mid-Continent, granting a summary judgment, concluding that Titan’s insurance covered “occurrences,” and none had taken place.



On appeal, the court found that the negligent construction of the condominiums constituted an “occurrence” The case was remanded and the district court this time found in favor of Titan, “concluding that Mid-Continent failed to raise a triable issue as to the applicability of the remaining policy exclusions.

The Ninth Circuit Court of Appeals has now affirmed that decision and Titan’s summary judgment stands.

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NIST Florida Condo Collapse Probe Develops Dozens of Hypotheses

June 13, 2022 — James Leggate - Engineering News-Record
Federal investigators looking into the causes of the partial collapse of the 40-year-old Champlain Towers South residential condominium in Surfside, Fla., last year have developed about two-dozen hypotheses, and are working to prove or disprove each, using a growing collection of evidence. They aim to issue recommendations for changes to building codes and standards, in an effort to avoid a similar tragedy, by the end of 2024. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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You Are on Notice: Failure to Comply With Contractual Notice Provisions Can Be Fatal to Your Claim

September 26, 2022 — Jenifer B. Minsky - ConsensusDocs
Imagine your firm is the construction manager on a multi-million-dollar project. At the end of the project you are five million dollars out-of-pocket. You have a stack of claims for additional and extended work which led to the overrun, payment for which will easily cover the shortfall. However, the owner refuses to compensate you until you can satisfactorily answer their inquiry: “Where are the notices that are expressly required under the terms of the contract?” You had a good relationship with the owner’s field representative who was aware you were performing the work and understood that your company was compiling claims. The once cooperative owner, now suffering financial restraints of their own, is resolute in their refusal leaving you no choice but to expend substantial sums of money to litigate the claims, the success of which is far from assured. What Contract Language Can Be A Trap For An Unwary Contractor? While courts are generally hesitant to order a forfeiture and some courts disfavor condition precedents, a judge’s hands may be tied by particular contract language requiring the strict enforcement of notice requirements. Such provisions may include: (1) an explicit clause that there be precise compliance with notice requirements; (2) express consequences for noncompliance (e.g., if the required notice is not provided the claim will be waived, forfeited or abandoned); (3) a statement that the notice requirements are a condition precedent to recovery; (4) language such as “if,” “provided that,” “or else” or “on condition that” (e.g., the owner shall review the claim, “provided such claim” was received within the applicable notice period) or (5) prohibition of any waiver of the notice requirement. To the extent the notice provision includes such language, a contractor can be without recourse even when the owner has actual knowledge of the claims or cannot show prejudice by the lack of notice. Read the court decision
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Reprinted courtesy of Jenifer B. Minsky, Peckar & Abramson, P.C.
Ms. Minsky may be contacted at jminsky@pecklaw.com

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