Presidential Memorandum Promotes Reliable Supply and Delivery of Water in the West
November 14, 2018 —
Anthony B. Cavender - Gravel2GavelIn a Memorandum dated October 19, 2018 and entitled Promoting the Reliable Supply and Delivery of Water in the West, the President has directed the Secretaries of the Interior and Commerce to work together to minimize “unnecessary regulatory burdens and foster more efficient decision-making” so that major federal water projects are constructed and operated in a manner that delivers water and power in an “efficient, cost-effective way.” More specifically, they will take steps to streamline the western water infrastructure regulatory processes and remove unnecessary burdens in accordance with the timetables set forth in the Memorandum.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
BIM Legal Liabilities: Not That Different
February 10, 2020 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Musings, we welcome Scott P. Fitzsimmons. Scott is an attorney with the construction law firm Watt, Tieder, Hoffar & Fitzgerald, where he represents contractors, subcontractors, owners, and engineers. He is also a LEED AP and an instructor for AGC of D.C., where he teaches BIM Contract Negotiation and Risk Allocation as part of AGC’s Certificate of Management, Building Information Modeling program.
When a new technology is introduced to the construction industry, contractors inevitably ask themselves one question “Great, how can this new gadget get me into trouble?” Building Information Modeling (BIM) is exactly the kind of technology that raises this fear. But, BIM has been around for a few years now, and the construction industry has done a good job of curtailing the fear of unanticipated legal liability.
Nevertheless, contractors should be aware of the pitfalls BIM introduces and should know how to limit their risk arising from this new “gadget.”
Often described as “CAD on Steroids,” BIM is truly much more than a simple design program. Along with early clash detection, BIM provides time and cost integration; calculates energy efficiency; and assists building maintenance long after project completion. Unlike CAD, BIM also modifies the collaborative nature of a construction project. Thus, subcontractors no longer review a design, submit shop drawings, and go to work. Rather, subcontractors are brought into the design process early in the project and often are asked to contribute to the design long before construction begins.
Asking a contractor or subcontractor to provide design services appears to shift the roles of an architect and a contractor. So, the questions abound: Is a contractor now responsible for design? Can the contractor be held responsible for defective design? Do not fret. To date, there has been only one advertised case addressing BIM liability. The reason is simple. For almost a hundred years, the United States Supreme Court has held that contractors are not responsible for defective design on a traditional design-bid-build project. Using BIM, therefore, should not modify a contractor’s responsibility. But, to ensure that your obligations do not extend beyond construction, all BIM requirements should be in writing and made part of your contract.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Colorado HB 13-1090: Concerning Payment of Amounts Due Under a Construction Agreement
February 21, 2013 —
David M. McLain — Higgins, Hopkins, McLain & Roswell, LLCOn January 17, 2013 Representative Fischer introduced House Bill 13-1090 into the Colorado House of Representatives. HB 1090 was assigned the House Business, Labor, Economic and Workforce Development Committee.
The bill, sponsored by Senator Tochtrop in the Senate, sets the following requirements for both private and public construction contracts:
The owner and contractor must make regular progress payments approximately every 30 days to contractors and subcontractors for work actually performed.
To receive the progress payments, the contractor and subcontractor must submit a progress payment invoice plus any required documents.
A contractor must pass on the progress payment to the subcontractor within 5 days or by the end of the billing cycle.
Interest accrues on unpaid progress payments.
A contract may extend a billing cycle to 60 days, but the contract must duly warn of this.
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David M. McLainmclain@hhmrlaw.com
Insurer's Withheld Discovery Must be Produced in Bad Faith Case
November 03, 2016 —
Tred R. Eyerly – Insurance Law HawaiiThe United States District Court for the Western District of Washington granted the insureds' motion to compel and ordered that the insurer produce withheld discovery. Bagley v. Travelers Home & Marine Ins. Co., 2016 U.S. Dist. LEXIS 115028 (W.D. Wash. Aug. 25, 2016).
The insureds' dock and boat ramp were damaged in a storm. Travelers refused to pay for the damage, arguing it was not covered. After Plaintiffs filed suit, Travelers admitted coverage and agreed to pay. The insureds' suit included a claim that Travelers wrongfully denied coverage, thereby costing the insureds money.
The insureds moved the court to compel Travelers to respond to certain discovery requests. First, the insureds requested the claims file Travelers maintained on their claim. The court did not order the production of privileged documents, but documents related to claims handling were not privileged. Travelers was ordered to produce all documents in the insureds' claim file that related to claim handling, even if the documents were created after the commencement of litigation.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Mexico City Metro Collapse Kills 24 After Neighbors’ Warnings
May 17, 2021 —
Max De Haldevang & Maya Averbuch - BloombergThe collapse of a long-troubled Mexico City metro track killed 24 people and put two of President Andres Manuel Lopez Obrador’s top allies in the line of fire Monday night, after a decade of safety concerns and probes surrounding the project.
About 79 people were injured, Mayor Claudia Sheinbaum said Tuesday. A broken beam led to the incident on the Golden Line of the metro system, she said. An international agency and the attorney general’s office will investigate.
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Max De Haldevang, Bloomberg and
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Colorado’s Abbreviated Legislative Session Offers Builders a Reprieve
October 26, 2020 —
David M. McLain – Colorado Construction LitigationWould you believe me if I told you that this year could have been worse for builders? Had COVID-19 not hit, the Colorado Legislature may have passed bills that would have had a severely negative impact on the home building industry. In response to the COVID-19 pandemic, the Legislature temporarily adjourned in mid-March, 67 days into the 120-day legislative session. After a two-month recess, the Legislature returned for approximately one month to pass critical bills including the state budget, the school finance act and what to do with the money from the federal CARES Act. Of the bills on the calendar when the Legislature temporarily adjourned, legislators focused on those that were “fast, free, and friendly,” and let the others fall by the wayside.
Bills that died included SB 20-138, which would have extended Colorado’s statute of repose for construction defect claims from six plus two years to 10 plus two years. The bill also contained a number of accrual and tolling provisions, which would have made it harder for builders to convince tribunals that claims were untimely. This bill died on the Senate floor, for lack of support. We will see whether plaintiffs’ attorneys will revive this effort next year.
SB 20-093, while not an outright ban on arbitration or a legislative overturning of the Vallagio decision, would have made it harder to administer and more difficult to get cases into arbitration. The bill died under the “fast, free, and friendly” test, i.e., it faced too much opposition. I expect to see this bill again next year, in some form.
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David McLain, Higgins, Hopkins, McLain & RoswellMr. McLain may be contacted at
mclain@hhmrlaw.com
There’s Still No Amazon for Housing, But Fintech’s Working on It
February 14, 2022 —
Patrick Clark - BloombergIt’s hard to imagine a better scenario for real estate technology than the one that played out in 2021. Low interest rates and pent-up demand ignited the hottest housing market on record, while the pandemic gave buyers and sellers new reasons to conduct business virtually.
And yet the year will be better remembered for the way some of the biggest names in the industry struggled. The highest-profile flop was Zillow Group Inc., the online listings giant that pulled the plug on its nascent instant homebuying operation in the face of mounting losses. Compass Inc., the tech-driven real estate brokerage, saw its shares plummet 50% as part of a broader selloff in property-related technology stocks. Better, an online mortgage company, fired 9% of its staff.
The bumpy year underscored a problem that’s been holding back the adoption of technology in real estate for the past two decades. Each sale of a home involves hundreds of thousands if not millions of dollars, and no two properties are exactly alike. Silicon Valley-backed companies have gone a long way in making searching for homes and advertising them simpler and faster. But it’s a difficult process to move fully online and involves a lot of people such as agents, appraisers, brokers, and contractors, as well as entrenched interests. For example, Zillow’s house buying business—billed as a way for customers to get out of their homes quickly and speed the moving process—faltered in part because the company couldn’t find enough contractors to fix up those homes to resell them.
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Patrick Clark, Bloomberg
Contractual Setoff and Application When Performance Bond Buys Out of its Exposure
July 02, 2024 —
David Adelstein - Florida Construction Legal UpdatesThe theory of “setoff” is an important theory in construction disputes. Florida’s Fourth District Court of Appeal recently provided worthy discussion on contractual setoffs:
Setoffs in contract claims are governed by [Florida Statute] section 46.015(2), which provides that if a plaintiff has released “any person in partial satisfaction of the damages sued for, the court shall [setoff] this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment.” The setoff statute intends to prohibit plaintiffs from getting double recoveries.
A setoff requires that settling and non-settling parties be jointly and severally liable. The settled damages must also be the same damages for which the setoff is sought; stated differently, a setoff is not proper where the trial damages to be setoff are separate and distinct from the settled damages.
Close Construction, LLC v. City of Riviera Beach Utility Special District, 49 Fla.L.Weekly D1184d (Fla. 4th DCA 2024) (internal citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com