No Coverage for Defects in Subcontrator's Own Work
February 11, 2019 —
Tred R. Eyerly - Insurance Law HawaiiDamage to the concrete floor installed by the insured subcontractor was not property damage and thus not covered under the insured's CGL policy. Kalman Floor Co. v. Old Republic Gen. Ins. Corp., 2019 U.S. Dist. LEXIS 3319 (D. Colo Jan. 8, 2019).
In 2007, Kalman Floor Co. was subcontracted to construct over 158,000 square feet of concrete flooring for a cold storage facility. The concrete floor was completed in late 2008. In late 2009, the contractor notified Kalman that pockmarks, or "pop-outs," were visible on the concrete flooring. The only damage to tangible property in the facility caused by the pop-outs was the concrete flooring itself.
On January 31, 2009, Old Republic issued a general liability policy to Kalman for one year. The policy excluded for damage to "your work," defined as "work or operations performed by you or on your behalf." Old Republic denied coverage for damage to the concrete floor. Kalman sued, seeking a declaration that the exclusions did not bar coverage.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Architect Norman Foster Tells COP26: Change 'Traditional' City Design to Combat Climate Change
November 19, 2021 —
James Leggate - Engineering News-RecordRegaining control over the climate crisis will require a change in the way cities are designed and built, noted British architect Sir Norman Foster told global attendees at the
COP26 summit in Glasgow, Scotland, in a presentation with John Kerry, President Joe Biden's special climate envoy.
Reprinted courtesy of
James Leggate, Engineering News-Record
Mr. Leggate may be contacted at leggatej@enr.com
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Quick Note: Insurer Must Comply with Florida’s Claims Administration Act
September 14, 2017 —
David Adelstein - Florida Construction Legal UpdatesAs an insured, know YOUR rights under Florida’s Claims Administration Act (Florida Statute s. 627.426). I wrote an article on this exact topic. If a third-party claim is asserted, or in the process of being asserted, against you, do yourself a favor and consult a lawyer that can assist you with preserving your insurance coverage rights. You pay liability insurance premiums for a reason so make sure you are not doing anything that could jeopardize rights under applicable insurance policies.
A liability insurer must comply with the Claims Administration Act if it wants to deny coverage based on a coverage defense (e.g., the insured’s failure to cooperate with the insurer).
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
Dadelstein@gmail.com
Class Action Certification by Association for “Matters of Common Interest”
August 24, 2020 —
David Adelstein - Florida Construction Legal UpdatesAssociations have authority to pursue as a class, on behalf of all of their respective members, lawsuits “concerning members of common interest to the members.” Fla. R. Civ. P. 1.221. This includes, but is not limited to, the common property or the areas in which the association is responsible. But, what about matters or elements for which the association is not responsible or does not own? For example, issues or damages relative to a specific unit or owner that are prevalent throughout?
The Third District Court of Appeal addressed this question in Allied Tube and Conduit Corp. v. Latitude on the River Condominium Association, Inc., 45 Fla. L. Weekly D1518a (Fla. 3d DCA 2020) when in affirmed a class certification by a condominium association relating to the removal and replacement of the condominium building’s defective fire sprinkler system. In affirming the class certification by the condominium association, the Third District maintained:
Rule 1.221 expressly authorizes condominium associations to “institute, maintain, settle, or appeal actions or hearings in its name on behalf of all association members concerning matters of common interest to the members.” “[A]s to controversies affecting the matters of common interest . . ., the condominium association, without more, should be construed to represent the class composed of its members as a matter of law.” “[T]he common interest provision of the rule has been interpreted to permit a class action by the association for a construction defect located physically within a unit, rather than in the common elements, if the defect is prevalent throughout the building.” We, therefore, cannot say the trial court abused its discretion in finding that damages resulting from the replacement of the fire-sprinkler system throughout the building were a matter of common interest for purposes of certification at this stage of the litigation.
Allied Tube and Conduit Corp, supra (internal citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Connecting Construction Project Information: Open Technology Databases Improve Project Communication, Collaboration and Visibility
March 14, 2018 —
Andy Kayhanfar - InEightThe construction industry has been plagued for decades with projects coming in over budget and behind schedule. There are many reasons this happens, but it ultimately comes down to just one thing – a lack of connected information.
Today, gigabytes and even terabytes of data are generated on a project and housed in different systems that do not talk or share information, which creates a closed approach and inhibits collaboration. Data is siloed and only accessible to certain companies, departments or disciplines, which gives each project stakeholder a very limited view into the status of the project as they are making decisions.
To be successful, the construction industry needs to free project data from closed systems. There must be a way to give all project stakeholders access to accurate information within the context of how it applies to the overall project that will empower everyone from owners to engineers to contractors to make timely, fully informed decisions that bring projects in on time and within budget.
INTRODUCING THE OPEN TECHNOLOGY DATABASE
The need for deep visibility into project information across systems and stakeholders has given rise in the construction industry to the open technology database. This approach enables project stakeholders to link the data in their existing software systems and connect that information into one centralized location. Project stakeholders can continue to use and maintain the data in their own systems while still feeding the information to the shared environment, which brings together critical project details, provides context for decisions and makes it easier for all parties to collaborate.
Project stakeholders are now able to connect business data related to estimating, cost control, scheduling, contracts, purchasing, accounting and more. This creates a common data set across the project that can be quickly accessed and can easily be put in the hands of project decision makers.
Innovative companies are taking this connectivity to a new level. They see the potential to use 3D models beyond simply the design aspects of a project and bring them into the activities of construction. Innovators are taking all the project information available in the shared environment and connecting it to the 3D model to create a comprehensive view of the project.
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Andy Kayhanfar, Construction Executive, a Publication of Associated Builders and Contractors. All Rights Reserved
Construction Problem Halts Wind Power Park
November 13, 2013 —
CDJ STAFFEngineers have yet to determine why a blade on a wind turbine broke at a wind power plant in Michigan, but as part of their investigation they are halting work on the final 10 turbines. The already completed 60 turbines have been taken out of operation. As a result, the Echo Wind Park is no longer generating power.
Scott Simons, a spokesperson for the project, said “we’re not going to put anyone or anything at risk until we get to the bottom of this.” However, Dennis Buda, the project manager, attributed the broken blade to a manufacturing defect. Construction was planned to end in November.
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Florida’s New Civil Remedies Act – Bulletpoints As to How It Impacts Construction
April 10, 2023 —
David Adelstein - Florida Construction Legal UpdatesThere has been much talk about Florida’s new Civil Remedies Act (
House Bill 837) that Governor DeSantis approved on March 24, 2023. As it pertains to construction, here is how I see it with key bulletpoints on the impact this new Act has on the construction industry:
- New Florida Statute s. 86.121 – This is an attorney’s fees statute for declaratory relief actions to the prevailing insured to determine insurance coverage after TOTAL COVERAGE DENIAL. (Note: A defense offered pursuant to a reservation of rights is not a total coverage denial.) This right only belongs to the insured and cannot be transferred or assigned. And the parties are entitled to the summary procedure set forth in Florida Statute s. 51.011 requiring the court to advance the cause on the calendar. The new statute does say it does NOT apply to any action arising under a residential or commercial property insurance policy. (Thus, since builder’s risk coverage is a form of property insurance, the strong presumption is this new statute would not apply to it.) Rather, the recent changes to Florida Statute s. 626.9373 would apply which provides, “In any suit arising under a residential or commercial property insurance policy, there is no right to attorney fees under this section.”
- Florida Statute s. 95.11 – The statute of limitations for negligence causes of action are two years instead of four years. This applies to “causes of action accruing after the effective date of this act.”
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Delays and Suspension of the Work Under Fixed Price Government Contract
July 22, 2024 —
David Adelstein - Florida Construction Legal UpdatesHere is an interesting fact pattern and case decided by the Civilian Board of Contract Appeals dealing with (1) force majeure type events and epidemics (Covid-19); (2) suspension of the work; and (3) delays. These are three topics important to all contractors including federal contractors.
In Lusk Mechanical Contractors, Inc. v General Services Administration, 2024 WL 1953697, CBCA 7759 (CBCA 2024), a contractor entered into a fixed price contract with the government to repair, replace, and modernize site and building systems at a federal building. The contractor commenced work right before Covid-19. When Covid-19 hit, the government issued the contractor a two-week suspension of work notice on March 27, 2020. The suspension of work allowed off-site administrative work to continue but suspended on-site physical work. The government extended the suspension of work three more times. The contractor could resume work on the exterior on June 1, 2020, but was not permitted to resume work on the interior until July 20, 2020. On the same date that the contractor was able to commence interior work, it submitted a modification for delay caused by the suspension – 64 days for the time period the entire site shutdown, and 51 days for the interior work shutdown.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
