Green Construction Claims: More of the Same
May 10, 2021 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday, Musings welcomes back Timothy R. Hughes, Esq., LEED AP. Tim (@timrhughes on Twitter) is a Shareholder in the Arlington, Virginia firm of Bean, Kinney & Korman, P.C. In his practice as a business, corporate, and construction law attorney, Tim was the Chair of the Construction Law and Public Contracts Section of the Virginia State Bar. He was recognized by Virginia Lawyer’s Weekly as a 2010 “Leader in the Law” and a member of the Legal Elite for Construction Law for 2010 by Virginia Business Magazine. A regular speaker and writer, Tim is the lead editor of his firm blog, Virginia Real Estate, Land Use and Construction Law.
Green construction liability risk has received a lot of discussion over time. My take is that sustainable design and construction projects present the same type of risk profile as other construction projects, with the caveat that there may be “a little more”. A little more risk. A little more lack of predictability. A little more process overlay. Thus, green construction claims really are just “more of the same”.
I have watched and participated in the discussion. With regards to the Chesapeake Bay Foundation building, the reality is that any project can face challenges of product specification and performance, green or not. We can see plenty of examples where products have created tremendous risk and liability to the construction industry, the avalanche of EIFS litigation and Chinese drywall standing as just two of the most recent examples. A product failed, but that is nothing truly new.
Read the court decisionRead the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Illinois Supreme Court Holds that Constructions Defects May Constitute “Property Damage” Caused By An “Occurrence” Under Standard CGL Policy, Overruling Prior Appellate Court Precedent
January 08, 2024 —
Jason Taylor - Traub Lieberman Insurance Law BlogOn November 30, 2023, the Illinois Supreme Court issued an opinion that overturned precedent in Illinois regarding whether faulty workmanship that only caused damage to the insured’s own work constituted “property damage” caused by an “occurrence” under Illinois law. In Acuity v. M/I Homes of Chicago, LLC, 2023 IL 129087, the Illinois Supreme Court considered whether Acuity, a mutual insurance company, had a duty to defend its additional insured, M/I Homes of Chicago, LLC (M/I Homes), under a subcontractor’s commercial general liability (CGL) policy in connection with an underlying lawsuit brought by a townhome owners’ association for breach of contract and breach of an implied warranty of habitability. The Cook County Circuit Court granted summary judgment in favor of Acuity finding no duty to defend because the underlying complaint did not allege “property damage” caused by an “occurrence” under the initial grant of coverage of the insurance policy. The appellate court reversed and remanded, finding that Acuity owed M/I Homes a duty to defend. The Illinois Supreme Court affirmed, in part, holding construction defects to the general contractor’s own work may constitute “property damage” caused by an “occurrence” under the standard CGL Policy. This is significant as it overrules prior Illinois precedent finding that repair or replacement of the insured’s defective work does not satisfy the initial grant of coverage of a CGL Policy.
By way of background, the underlying litigation stems from alleged construction defects in a residential townhome development in the village of Hanover Park, Illinois. The townhome owners’ association, through its board of directors (the Association) subsequently filed an action on behalf of the townhome owners for breach of contract and breach of the implied warranty of habitability against M/I Homes as the general contractor and successor developer/seller of the townhomes. The Association alleged that M/I Homes’ subcontractors caused construction defects by using defective materials, conducting faulty workmanship, and failing to comply with applicable building codes. As a result, “[t]he [d]efects caused physical injury to the [t]ownhomes (i.e. altered the exterior’s appearance, shape, color or other material dimension) after construction of the [t]ownhome[ ] was completed from repeated exposure to substantially the same general conditions.” The defects included “leakage and/or uncontrolled water and/or moisture in locations in the buildings where it was not intended or expected.” The Association alleged that the “[d]efects have caused substantial damage to the [t]ownhomes and damage to other property.”
Read the court decisionRead the full story...Reprinted courtesy of
Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Home Prices in 20 U.S. Cities Increased 4.3% in November
January 28, 2015 —
Victoria Stilwell – Bloomberg(Bloomberg) -- Home prices in 20 U.S. cities rose at a slower pace in the year ended in November, a sign the industry struggled to find momentum even amid low mortgage rates.
The S&P/Case-Shiller index of property values increased 4.3 percent from November 2013 after rising 4.5 percent in the year ended in October, the group said Tuesday in New York. The median projection of 28 economists surveyed by Bloomberg called for a 4.3 percent year-over-year advance. Nationally, prices rose 4.7 percent after a 4.6 percent gain in the year ended in October.
Read the court decisionRead the full story...Reprinted courtesy of
Victoria Stilwell, BloombergMs. Stilwell may be contacted at
vstilwell1@bloomberg.net
NTSB Faults Maintenance, Inspection Oversight for Fern Hollow Bridge Collapse
March 19, 2024 —
Jim Parsons - Engineering News-RecordThe City of Pittsburgh’s failure to act for more than a decade on repeated maintenance and repair recommendations regarding the Fern Hollow Bridge was the probable cause for the structure’s dramatic 2022 collapse, the National Transportation Safety Board (NTSB) said at its Feb. 21, 2024, meeting. The city is the owner of the bridge.
Reprinted courtesy of
Jim Parsons, Engineering News-Record
ENR may be contacted at enr@enr.com
Read the full story... Read the court decisionRead the full story...Reprinted courtesy of
Remembering Joseph H. Foster
April 20, 2016 —
White & Williams LLPWe are saddened to share the news of the loss of our longtime partner and good friend, Joseph H. Foster.
Mr. Foster was a nationally recognized trial attorney who began his career at White and Williams LLP in 1958, becoming a partner in 1963, and continued to practice law, coming into the office every day, until he was hospitalized before his passing. A true giant in the Pennsylvania legal community, Joe exemplified the best of the legal profession and was widely admired and respected among the bar and bench for his lasting and impactful contributions.
Mr. Foster served as the Chair of the Litigation Department and a member of the firm’s Executive Committee. During his tenure at White and Williams, he grew to become one of the most respected trial lawyers in Pennsylvania. He promoted a culture of excellence in client services and was the proverbial lawyer’s lawyer, treating his adversaries with courtesy and respect and always looking to find justice in the matters he handled. He was active in training at the firm, mentoring generations of trial lawyers and personally moving for the admission of hundreds of new attorneys at the firm, including an annual ceremony in Federal Court.
Read the court decisionRead the full story...Reprinted courtesy of
White & Williams LLP
Improperly Installed Flanges Are Impaired Property
February 16, 2016 —
Tred R. Eyerly – Insurance Law HawaiiAnswering certified questions from the Fifth Circuit, the Texas Supreme Court found there was no coverage for flanges that leaked after installation. U. S. Metals, Inc. v. Liberty Mutual Group, Inc., 2015 Texas LEXIS 1081 (Dec. 4, 2015).
U. S. Metals sold Exxon 350 custom-made, stainless steel, weld-neck flanges for use in refineries. Testing after installation showed the flanges leaked and did not meet industry standards. Exxon decided to replace the flanges to avoid risk of fire and explosion. For each flange, this involved stripping the temperature coating and insulation, cutting the flange out of the pipe, removing the gaskets, grinding the pipe surfaces smooth for re-welding, replacing the flange and gaskets, welding the new flange to the pipes, and replacing the temperature coating and insulation. The replacement process delayed operation of the diesel units for several weeks.
Exxon sued U.S. Metal for over $6 million as the cost of replacing the flanges and $16 million as damages for lost use of the diesel units during the process. U.S. Metals settled with Exxon for $2.2 million and then sought indemnification from its liability insurer, Liberty Mutual.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Hundreds Celebrated the Grand Opening of the Associated Builders and Contractors of Southern California Riverside Construction Training Center
February 14, 2023 —
Associated Builders and ContractorsRIVERSIDE, Calif., Feb. 10, 2023 (GLOBE NEWSWIRE) -- Today the Associated Builders and Contractors Southern California Chapter (ABC), hosted hundreds of community members as they cut the "ribbon" of their third training center in Southern California.
"Today is a celebration, but it also represents a continued commitment by ABC and our membership to supply a skilled, trained, and safe construction workforce for Southern California," stated Nick McFayden, ABC SoCal's Board Chair.
Jon Krystafik, Vice Chairman of the Training Trust commented, "Our training facility is unique. You may have toured other facilities but with ours you will see we don't just train one craft. Here Apprentices and Craft trainees are receiving cutting edge training in Electrical, Plumbing, Low Voltage and HVAC/Sheet Metal." Krystafik added, "Our trustees had a dream 10 years ago to train residents in the inland empire. Today it is a reality!"
ABC Southern California Chapter is an association of contractors that believe in the Merit Shop Philosophy. Merit shop encourages open competition and a free enterprise approach that awards contracts and employment based solely on merit, safety, quality, and cost, regardless of labor affiliation. The chapter is one of 68 throughout the country and represents nearly 400 member companies.
Read the court decisionRead the full story...Reprinted courtesy of
Construction Litigation Roundup: “A Less Than Valiant Effort”
June 21, 2024 —
Daniel Lund III - LexologyA Miller Act claimant in federal court in New Jersey in relation to a VA medical center project found itself on the wrong end of the law and was sent packing by the court.
The claimant had supplied products for the project to general contractor Valiant Group, LLC, pursuant to a purchase order from the GC. The general contractor allegedly refused to pay the supplier, leading to the claim against the GC and its payment bond surety in the amount of $126,900. The supplier also sought recovery under the federal Prompt Payment Act, 31 U.S.C. §§ 3901-07. State law claims were asserted as well.
Chipping away at the federal law claims – the claims forming the asserted basis for federal court jurisdiction for the case – the court first dispensed with the Prompt Payment Act claim. According to the court, allegations that the general contractor had “wrongfully and improperly withheld remuneration… despite [having] ‘received payment from the U.S. Department of Veterans Affairs’" – whether or not accurate – did not trigger the Act. The court wrote:
“The Prompt Payment Act was enacted ‘to provide the federal government with an incentive to pay government contractors on time by requiring agencies to pay penalties . . . on certain overdue bills . . . [and] was later amended to include provisions applicable to subcontractors.’… Absent from the Act, however, are ‘any explicit provisions for subcontractor enforcement if the prime contractor fails to make timely payment.’… This is because the Act ‘merely requires that the prime contractor's contract with the subcontractor include the specified payment clause. [It] does not require the prime contractor to actually make payments to the subcontractor[.]’… The Act, therefore, does not ‘give subcontractors an additional cause of action for an alleged breach by a general contractor of a subcontract.’”
Read the court decisionRead the full story...Reprinted courtesy of
Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
