House of Digital Twins
March 08, 2021 —
Cristina Savian - AEC BusinessAs a vocal and passionate advocate for the adoption of Digital Twins for our built assets, I keep finding myself standing in, what feels like, the middle of a house of cards, observing its always rocky structure in constant danger of collapse. A wobbly system threatened by the tremors stressed by one of the most prominent digital revolutions that our construction industry has ever experienced.
DIGITAL TWINS FOR OUR BUILT ASSET.
This booming industry trend is gaining speed at a rate that the construction industry has never experienced before. Construction has always been slow at innovating and still holds its title as the least digitalised industry, but the Digital Twin revolution has now found our location and is ready to disrupt. I often witness how these forces attempt to pull down the cards, but, to my surprise, their resilience is what keeps holding the house together. Hold on, is this resilience or resistance?
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Cristina Savian, AEC Business
Ohio Court of Appeals Affirms Judgment in Landis v. Fannin Builders
April 20, 2011 —
Beverley BevenFlorez CDJ STAFFThe Ohio Court of Appeals affirmed the judgment in Landis v. William Fannin Builders. Landis contracted Fannin Builders to build their home. The case involved staining problems on the T1-11 siding chosen by the plaintiffs.
After a year and a half of discussion on how to resolve the problem of uneven staining on the siding, Landis filed suit “against Fannin Builders, alleging claims for breach of contract, breach of the express limited warranty, and violation of the Ohio Consumer Sales Practices Act (“OCSPA”). Fannin Builders, in turn, filed a third-party complaint against 84 Lumber, alleging claims for breach of contract and indemnification. With the trial court’s leave, Fannin Builders also later amended its answer to add a counterclaim against appellees for breach of contract and unjust enrichment. In the counterclaim, Fannin Builders alleged that appellees still owed it $3,908.98 for the construction of appellees’ home.”
“In its decision, the trial court found in appellees’ favor on their breach of contract claim and against appellees on their claims for breach of the express limited warranty and violation of the OCSPA. Additionally, the trial court found in Fannin Builders’ favor on its counterclaim for breach of contract and against Fannin Builders on its third-party claims for breach of contract and indemnity. The trial court determined that appellees’ damages amounted to $66,906.24, and after setting off the $3,908.98 that appellees owed Fannin Builders under the construction contract, the trial court awarded appellees $62,997.26. The trial court reduced its decision to judgment on May 18, 2010.”
Fannin Builders appealed this judgment and assigned the following errors:
[1.] The Trial Court Erred as a Matter of Law by Concluding that Appellant Breached its Contract with Appellees when it provided a Semi-Transparent Oil-Based Stain that Simply did not Meet their Approval.
[a.] The Contract does not Contain a Satisfaction Clause.
[b.] Even if the Court Implies a Satisfaction Clause, the Court Should Apply an Objective Standard.
[2.] The Trial Court Erred as a Matter of Law by Failing to Consider Appellant’s Right to Cure.
[3.] The Trial Court committed Reversible Error by not Assessing Damages Using “Diminished Value Standard,” and by Creating a Remedy that Constitutes Economic Waste.
[4.] The Trial Court Erred as a Matter of Law by Concluding that Appellant is Barred from Seeking Indemnification When 84 [Lumber] Never Fulfilled its Obligations Pursuant to the Settlement Agreement Entered on August 2, 2005.
In response to the first assigned error, the Court of Appeals stated: “Because the failure to provide siding of a uniform color, not appellees’ displeasure, breached the contract, we reject Fannin Builders’ contention that the trial court implied a satisfaction clause into the contract and found a breach of that clause. Accordingly, we overrule Fannin Builders’ first assignment of error.”
The Court of Appeals overruled the second assignment of error and provided the following reasoning: “Although Fannin Builders depends upon a term of the limited warranty for its right to cure, the trial court concluded that no breach of the limited warranty occurred. Fannin Builders breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIA’s Quality Standards. Consequently, the limited warranty does not apply to this case, and thus, it does not prevent appellees’ recovery of damages.”
The Appeals Court found “the trial court’s award of damages” was “both reasonable and supported by competent, credible evidence,” and therefore concluded “that the trial court did not err in setting appellees’ damages at $62,997.26.” The Fannin Builders third assignment of error was overruled.
The fourth and final assignment of error was also overruled by the Court of Appeals. “While Fannin Builders correctly asserts that 84 Lumber never installed the replacement siding, it ignores the fact that it ordered 84 Lumber to remove the replacement siding from appellees’ property. Thus, Fannin Builders precluded 84 Lumber from completely performing under the August 2, 2005 letter agreement. […] Consequently, Fannin Builders cannot now claim that the letter agreement is unenforceable or that it is entitled to indemnification from 84 Lumber. Because Fannin Builders assumed all liability for the defective siding in the letter agreement, it is responsible for appellees’ damages.”
James A. Zitesman, Columbus, Ohio Business Attorney, compared the case to Jones v. Centex (Ohio App. 2010), which had a different verdict:
“The common thread is the implied warranty of good workmanship. In the Jones case, the Court found that the buyers had in fact waived all implied warranties, including the implied warranty of good workmanship. In the contract between Jones and Centex, the builder stated that it “…would not sell the property to Purchasers without this waiver.” Probably should have been a sign to the buyers.
In the Landis case, the Court stated, “Contracts for the future construction of a residence include a duty, implied by law, that the builder must perform its work in a workmanlike manner.” The Court gave significant weight to the concept of the implied warranty of good workmanship. The builder relied upon the BIA Warranty which limits builders’ liability and exposure to legal issues. The trial court concluded there was no breach of the limited warranty, rather the builder “breached the duty of workmanlike conduct implicit in the construction contract, not the limited warranty requiring it to satisfy the BIAs Quality Standards.”
The Supreme Court of Ohio has accepted the Jones v. Centex Homes case for review.
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New California "Construction" Legislation
November 08, 2018 —
Richard H. Glucksman, Esq. & Chelsea L. Zwart, Esq. - Chapman Glucksman Dean Roeb & BargerGovernor Jerry Brown signed two potentially impactful Senate Bills relating to the construction of apartment buildings late last month. These Bills, discussed further below, were introduced, in part, in response to the Berkeley balcony collapse in June 2015, which was determined by the California Contractors State License Board to be caused by the failure of severely rotted structural support joists the repair of which were deferred by the property manager, despite indications of water damage.
SENATE BILL 721 ESTABLISHES HEIGHTENED “LOAD-BEARING” INSPECTION REQUIREMENTS
On August 21, 2018, the California State Senate passed SB 721, one of two bills by Senator Jerry Hill introduced this year seeking to address the safety of multifamily rental residences. Now that the Governor has signed the Bill, a new section will be added to the California Health and Safety Code, requiring that every 6 years, destructive testing be performed on at least 15% of each type of load-bearing, wood framed exterior elevated element (such as balconies, walkways, and stair landings) in apartment buildings with 3 or more units. Interestingly, prior to being passed by the State Senate, SB 721 was revised in June 2018, such that the inspection requirements do not apply to common interest developments (i.e., condominiums).
As set forth in the new Health and Safety Code Section 17973:
"the purpose of the inspection is to determine that exterior elevated elements and their associated waterproofing elements are in a generally safe condition, adequate working order, and free from any hazardous condition caused by fungus, deterioration, decay, or improper alteration to the extent that the life, limb, health, property, safety, or welfare of the public or the occupants is not endangered."
The inspection must be paid for by the building owner and performed by a licensed contractor, architect, or civil or structural engineer, or a certified building inspector or building official from a recognized state, national, or international association. Emergency repairs identified by the inspector must be made immediately. For non-emergency repairs, a permit must be applied for within 120 days and the repair completed within 120 days of the permit’s issuance. If repairs are not completed within 180 days, civil penalties of $100-$500 per day may be imposed.
The required inspection must be completed by January 1, 2025 and every 6 years thereafter, unless an equivalent inspection was performed during the 3 years prior to January 1, 2019, the effective date of the new law. For a building converted to condominiums that will be sold after January 1, 2019, the inspection required by Health and Safety Code Section 17973, must be performed prior to the first close of escrow.
SENATE BILL 1465 SETS CONTRACTOR REPORTING REQUIREMENTS
The Governor also signed SB 1465, adding Sections 7071.20, 7071.21, and 7071.22 to the California Business and Professions Code. The new law requires that a contractor licensed with the Contractors’ State License Board "report to the registrar in writing within 90 days after the licensee has knowledge of any civil action resulting in a final judgment, executed settlement agreement, or final arbitration award in which the licensee is named as a defendant or crossdefendant, filed on or after January 1, 2019," that meets certain and specific criteria, including that it is over $1 million and arises out of an action for damages to a property or person allegedly caused by specified construction activities of the contractor on a multifamily rental residential structure.
Where more than one contractor was named as a defendant or cross-defendant, each of the contractors apportioned more than $15,000 in liability must report the action. Importantly, the new statute also imposes similar reporting requirements on insurers of contractors. SB 1465 also addresses an impacted party’s failure to comply with the reporting requirements.
COMMENT
Both SB 721 and SB 1465 are potentially significant and seek “legislative reform” to address construction issues by placing a greater burden on apartment owners as well as builders and subcontractors. How pragmatic and what impact they will have on the industry is obviously developing. If you are interested in receiving further detail concerning the Bills, please contact us. We are analyzing the new legislation and its intent and will be providing our ongoing comments.
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RICHARD H. GLUCKSMAN, ESQ. CHELSEA L. ZWART, ESQ., CGDRBChelsea L. Zwart may be contacted at
czwart@cgdrblaw.com
Three lawyers from Haight were recognized in The Best Lawyers in America© 2020 Edition
September 30, 2019 —
William G. Baumgaertner, Michael Leahy, & Denis Moriarty - Haight Brown & BonesteelCongratulations to Haight’s attorneys who were recognized in The Best Lawyers in America© 2020 Edition
Los Angeles, California
William G. Baumgaertner for personal injury and product liability litigation for plaintiffs and defendants
Michael Leahy for insurance law
Denis Moriarty for insurance law
Reprinted courtesy of Haight Brown & Bonesteel attorneys
William G. Baumgaertner,
Michael Leahy and
Denis J. Moriarty
Mr. Baumgaertner may be contacted at wbaum@hbblaw.com
Mr. Leahy may be contacted at mleahy@hbblaw.com
Mr. Moriarty may be contacted at dmoriarty@hbblaw.com
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Florida Supreme Court Decision Limits Special Damages Presented to Juries
July 18, 2022 —
John A. Rine & Shannon Murphy - Lewis BrisboisTampa, Fla. (June 16, 2022) - Verdicts in personal injury cases are greatly impacted by the amount of medical expenses a plaintiff can present to juries. In Florida, collateral sources of compensation, such as insurance payments, are generally not disclosed to juries. However, caselaw also typically does not allow plaintiffs to recover the gross amount of medical bills, but instead the amount after insurance adjustments. For decades, Florida courts have considered whether the bills are reduced by the adjustments before or after verdict. The recent Florida Supreme Court decision in Dial v. Calusa Palms Master Association, Inc., No. SC21-43 (Fla. Apr. 28, 2022), has standardized the way past medical expenses are presented to juries where the plaintiff was treated under Medicare.
As is commonly understood, the original amount billed by medical providers is far different than the amount actually paid. Most treatment is subject to some private or government insurance and those insurers typically have negotiated rates for treatment. Thus, the bills are reduced subject to insurance contractual adjustments and the resulting net bills are far lower. For decades, defense attorneys have argued that juries should hear only the lower net amount.
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John Rine, Lewis BrisboisMr. Rine may be contacted at
John.Rine@lewisbrisbois.com
Western Specialty Contractors Branches in San Francisco and Cleveland Take Home Top Industry Honors
January 03, 2022 —
Western Specialty Contractors(St. Louis, MO, Dec. 21, 2021) Western Specialty Contractors Branches in San Francisco, CA and Cleveland, OH are ending the year's fourth quarter on a high note, with each receiving a top industry award.
In October, Western's San Francisco Branch was named a 2021 International Concrete Repair Institute (ICRI) Project of the Year Award Finalist (Historic Category) for renovation and repurposing of the SMUD Museum of Science and Curiosity in Sacramento, CA. Western's Cleveland Branch was honored in December with the Institute of Real Estate Management (IREM) Northern Ohio Chapter's Industry Partner of the Year Award.
About Western Specialty Contractors
Family-owned and operated for more than 100 years, Western Specialty Contractors is the nation's largest specialty contractor in masonry and concrete restoration, waterproofing and specialty roofing. Western offers a nationwide network of expertise that building owners, engineers, architects, and property managers can count on to develop cost-effective, corrective measures that can add years of useful life to a variety of structures including industrial, commercial, healthcare, historic, educational and government buildings, parking structures, and sports stadiums. Western is headquartered in St. Louis, MO with 30 branch offices nationwide and employs more than 1,200 salaried and hourly professionals who offer the best, time-tested techniques and innovative technology. For more information about Western Specialty Contractors, visit www.westernspecialtycontractors.com.
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More Regulations for Federal Contractors
October 08, 2014 —
Craig Martin – Construction Contractor AdvisorThe Office of Federal Contract Compliance Programs (OFCCP) has been busy. In the last several weeks, the OFCCP has proposed regulations that will require contractors and subcontractors to provide summary compensation data and another rule prohibiting federal contractors and subcontractors from discriminating against employees or applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant.
Equal Pay Report
The OFCCP has proposed Summary Compensation regulations which would require federal contractors and subcontractors with more than 100 employees to “provide summary data on the compensation paid to employees by sex, race, ethnicity, specified job categories, and other relevant data points.” Covered employers would have to submit three types of information:
1. the total number of workers within a specific EEO-1 job category by race, ethnicity and sex;
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Craig Martin, Lamson Dugan and Murray, LLPMr. Gopal may be contacted at
pgopal2@bloomberg.net
Solar and Wind Just Passed Another Big Turning Point
October 21, 2015 —
Tom Randall – BloombergWind power is now the cheapest electricity to produce in both Germany and the U.K., even without government subsidies, according to a new analysis by Bloomberg New Energy Finance (BNEF). It's the first time that threshold has been crossed by a G7 economy.1increase click area
But that's less interesting than what just happened in the U.S.
To appreciate what's going on there, you need to understand the capacity factor. That's the percentage of a power plant's maximum potential that's actually achieved over time.
Consider a solar project. The sun doesn't shine at night and, even during the day, varies in brightness with the weather and the seasons. So a project that can crank out 100 megawatt hours of electricity during the sunniest part of the day might produce just 20 percent of that when averaged out over a year. That gives it a 20 percent capacity factor.
One of the major strengths of fossil fuel power plants is that they can command very high and predictable capacity factors. The average U.S. natural gas plant, for example, might produce about 70 percent of its potential (falling short of 100 percent because of seasonal demand and maintenance). But that's what's changing, and it's a big deal.
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Tom Randall, Bloomberg
