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Glasses lying on insurance policy document

In this case, Seneca Specialty Ins. Co. v. Jade Condominium Assoc'n a unit owner sued its association and another unit owner claiming that water flowing from limited common areas within the association’s control damaged its balcony.

Impairing Your Insurer’s Subrogation Rights

Monday, May 6, 2024 — David Adelstein - Florida Construction Legal Updates

Liability insurance policies have a provision that allows them to subrogate to the rights of their insured. This provision is commonly referred to as a transfer of rights provision and reads:

If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring “suit” or transfer those rights to us and help us enforce them.

In a recent dispute, an insurer sued its insured claiming the insured breached the insurance policy-a contract—by impairing the insurer’s subrogation rights. In other words, the insurer claimed its insured breach the insurance contract and the transfer of rights provision above.

Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Coworkers punching each other

Among the key legal questions now is whether the ship owners will declare “general average,” a centuries-old principle that would spread losses proportionately among cargo owners and other stakeholders.

Legal Battle Kicks Off to Minimize Baltimore Bridge Liabilities

Monday, May 6, 2024 — Brendan Murray - Bloomberg

The owner of the ship that destroyed Baltimore’s Francis Scott Key Bridge, causing the indefinite closure of the port a week ago, is seeking to limit its liability to about $44 million.

According to reporting by my Bloomberg News colleagues citing legal experts, the company — Grace Ocean — could face hundreds of millions of dollars in damage claims.

On Monday it filed a petition jointly with Synergy Marine, which was operating the Singapore-flagged container ship Dali. They claim the collapse of the bridge was “not due to any fault, neglect, or want of care” of the companies and that they shouldn’t be held liable for any loss or damage from the disaster.

Reprinted courtesy of Brendan Murray, Bloomberg

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Fountain pen on Contract

In this post, attorney Christopher G. Hill shares a few musings on the topic of so-called “no damages for delay” clauses.

Construction Contract Basics: No Damages for Delay

Monday, May 6, 2024 — Christopher G. Hill - Construction Law Musings

After WAY too long a hiatus, I am back with another in my series of “Construction Contract Basics” posts. In past posts, I’ve covered venue provisions, attorney fee provisions, and indemnity clauses. In this post, I’ll share a few thoughts (or “musings”) on the topic of so-called “no damages for delay” clauses. These clauses essentially state that a subcontractor’s only remedy for a delay caused by any factor beyond its control (including the fault of the general contractor), after proper notice to the owner or general contractor, is an extension of time to complete the work.

These types of clauses generally make it impossible for a subcontractor (if found in a Subcontract) or Contractor (if found in a Prime Contract) that is delayed through no fault of its own to recover any damages relating to the expenses that are inevitably caused by such delays. Such expenses/damages could include additional supervisory time (including more high-dollar superintendent payments), acceleration costs, demobilization/mobilization costs, and other related expenses. These can add up to real money. Couple that with the inevitable liquidated damages or delay damages that will occur should a contractor or subcontractor cause any delay, and this becomes a very one-sided proposition.

Reprinted courtesy of The Law Office of Christopher G. Hill

Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Skanska Lands $1.4B Contract to Revamp Seattle's Portage Bay Bridge

May 6, 2024 — Matthew Heller - Engineering News-Record

The $1.4-billion rebuild of Seattle’s Portage Bay Bridge to meet current seismic resiliency standards was awarded to Skanska by the Washington State Dept. of Transportation (WSDOT) last month.

ENR may be contacted at enr@enr.com

Delay and Disorganization ≠ Failure to Cooperate

May 6, 2024 — Rachel E. Hudgins & Adriana A. Perez - Hunton Andrews Kurth

Insurance policies usually have cooperation clauses requiring policyholders to work with the insurance company when making a claim. These clauses ensure policyholders actively participate in claims investigations. Failure to cooperate may be a breach of the policy, and the insurer may deny coverage.

Proving non-cooperation, though, is challenging, as seen in a recent Eighth Circuit case, Cardinal Building Materials, Inc. v. Amerisure Insurance Company.[1] Amerisure claimed that its insured, Cardinal, had failed to cooperate in investigating Cardinal’s tornado claim.[2]

Reprinted courtesy of Rachel E. Hudgins, Hunton Andrews Kurth and Adriana A. Perez, Hunton Andrews Kurth

Ms. Hudgins may be contacted at rhudgins@HuntonAK.com
Ms. Perez may be contacted at pereza@HuntonAK.com

LGI Homes Named a Top Workplace for the Fourth Consecutive Year

May 6, 2024 — LGI Homes, Inc.

THE WOODLANDS, Texas, April 02, 2024 (GLOBE NEWSWIRE) -- LGI Homes, Inc. (NASDAQ: LGIH), one of the nation's largest and most recognized homebuilders, announced today that it received the 2024 Top Workplace USA award issued by Energage and USA Today. This is LGI Homes' 4th consecutive year to receive this distinction.

The Top Workplaces USA Award program celebrates nationally recognized companies who focus on making the world a better place by prioritizing a people-centered culture, giving employees a voice and seeking to optimize the workplace experience.

Honorees are chosen based solely on employee feedback gathered through a confidential employee engagement survey, issued by Energage. Results are calculated by comparing the survey's research-based statements, that evaluate factors such as leadership, culture, and benefits that are proven to predict high performance, against industry benchmarks.

ABA Forum on Construction Law 2024 Planning Retreat

May 6, 2024 — Beverley BevenFlorez – CDJ Staff

The Forum on Construction Law’s 2024 Leadership Planning Retreat will provide an “opportunity for members and guests to come together and discuss the latest developments in the field of Construction Law.” Attendees can “network with other professionals in the industry and gain valuable insights into the challenges and opportunities facing construction law today.”

July 10th-13th, 2024
Alyeska Resort
1000 Arlberg Avenue
Girdwood, AK 99587

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Stick figures teaching

This article briefly outlines what you should know about LDs for delay and LDs for failing to meet certain performance requirements.

What You Should Know About Liquidated Damages and Liability Caps for Delay and Performance Liquidated Damages

Monday, May 6, 2024 — Chris Cazenave - ConsensusDocs

Liquidated damage clauses are omnipresent in today’s construction contracts—often considered in early negotiations to provide a degree of certainty and limit financial liability.

There are two principal types of LDs appearing in construction contracts—(i.) damages for delay when a contractor fails to deliver a project by a certain milestone; and (ii.) performance damages when a contractor fails to meet specific performance requirements. Differentiating between LDs for delay and LDs for performance—especially when both LD types are combined in the same contract—is key to risk awareness and allocation during contract negotiations and throughout performance.

This article briefly outlines what you should know about LDs for delay and LDs for failing to meet certain performance requirements. The article also covers how contractors can allocate and cap risks based on risks each party can either manage, insure, or otherwise limit.

Reprinted courtesy of Chris Cazenave, Jones Walker LLP

Mr. Cazenave may be contacted at ccazenave@joneswalker.com

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Failure in ripped paper

The court determined that coverage for a loss by fire could not be denied when the insured's son failed to appear for a examination under oath (EUO).

Insurer Wrongfully Denies Coverage When Household Member Fails to Submit to EUO

Monday, May 6, 2024 — Tred R. Eyerly - Insurance Law Hawaii

The court determined that coverage for a loss by fire could not be denied when the insured's son failed to appear for a examination under oath (EUO). Adekola v. Allstate Vehicle & Prop. Ins. Co., 2024 U.S. Dist. LEXIS 27125 (E.D. Pa. Feb. 16, 2024).

Plaintiff had a homeowners policy with Allstate. Plaintiff - Michele Adekola - was the named insured under the policy. After the fire, Allstate provided payments for temporary housing. Allstate requested examinations under oath of Plaintiff and her son, Nico. Plaintiff and her son were examined by Zoom. Allstate then sought to examine Plaintiff's other son, Lemmeco, but these efforts were unsuccessful.

Allstate then stopped paying for Plaintiff's temporary housing and informed Plaintiff that Lemmeco's failure to participate in an EUO was a material breach of duties under the policy and the breach was prejudicial to Allstate. Allstate further contended that Lemmeco had a duty to submit to an EUO.

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Money bills coming out of computer

'Spoofed' emails may have played a key role in theft.

Cyber Thieves Phish Away a $735K Payment to a Minnesota Contractor

Monday, May 6, 2024 — Richard Korman - Engineering News-Record

The contractor's project manager asked for money due, $735,000 under Payment Application 13, to be sent by the owner electronically. "Hi Rick," the project manager, whose first name is Jalen, wrote in an email dated Aug. 15. "Can we have payments remitted electronically as we currently have numerous uncleared checks on hold?"

Reprinted courtesy of Richard Korman, Engineering News-Record

Mr. Korman may be contacted at kormanr@enr.com

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Scales of justice

The contractor initiated arbitration, and the city countered by arguing that the contractor had bribed its way into the contract.

Construction Litigation Roundup: “A Fastball Right to the Bean!”

Monday, May 6, 2024 — Daniel Lund III - Lexology

The Metropolitan Municipality of Lima, Peru, filed suit in federal court in Washington DC to vacate two separate arbitration awards rendered against the city in international arbitration proceedings subject to the Federal Arbitration Act.

The city had contracted to build, improve, and maintain various highways in and around the city. To pay for this infrastructure, Lima agreed that the contractor would “receive revenues from existing and new toll booths.”

Apparently, the City of Lima forgot how much citizens of the area loathed tolls, and, according to the court, the local public officials “quickly truckled” (how apropos for a road project!) to the pressure. As a result, revenues promised to the contractor were not forthcoming, and the city did nothing about it.

The contractor initiated arbitration, and the city countered by arguing that the contractor had bribed its way into the contract. The city lost and was held in breach.

Reprinted courtesy of Daniel Lund III, Phelps

Mr. Lund may be contacted at daniel.lund@phelps.com

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Newspaper

In Pillsbury's latest roundup, DOT’s major grant programs, proptech’s solution to climate change risks, mortgage-locked sellers put their homes on the market, and more.

Real Estate & Construction News Roundup (4/10/24) – Hotels Integrate AI, Baby-Boomers Stay Put, and Insurance Affects Housing Market

Monday, May 6, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

In our latest roundup, DOT’s major grant programs, proptech’s solution to climate change risks, mortgage-locked sellers put their homes on the market, and more!

Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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Illustration of judge sitting behind bench

The Construction Company brought a third-party action against the Contracting Company alleging causes of action for contribution, contractual indemnification, and breach of contract for failure to procure insurance.

Traub Lieberman Partner Lisa M. Rolle Wins Summary Judgment in Favor of Third-Party Defendant

Monday, May 6, 2024 — Traub Lieberman

Traub Lieberman Partner Lisa M. Rolle won summary judgment in favor of Third-Party Defendant, a general contracting company (the “Contracting Company”), in a personal injury action brought in Suffolk County. In the underlying matter, the Plaintiff—an employee of the Contracting Company—alleged that they sustained injuries from an incident which occurred when they were struck by a skid-steer loader owned by the Co-Defendant masonry company (the “Masonry Company”) and operated by the president and owner of the Co-Defendant/Third-Party Plaintiff construction company (the “Construction Company”). The Plaintiff brought claims against the Defendant companies for common law negligence and violations of Labor Law § § 200, 240, and 241, as well as Industrial code (12 NYCRR) subpart 23-2.

Reprinted courtesy of Lisa Rolle, Traub Lieberman

Ms. Rolle may be contacted at lrolle@tlsslaw.com

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Woman Dies After Being Struck by Steel Cylinder from Pittsburgh Construction Site

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CONSTRUCTION DEFECT NEWS
Welcome to Las Vegas Sign

Their prompt, aggressive action and ability to argue the merits of the law, successfully extricated the client from harm’s way, saving the client significant fees and costs.

Congratulations to Las Vegas Team on Their Successful Motion for Summary Judgment!

Monday, May 6, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

This case arose from an alleged trip and fall on an uneven surface in a parking lot outside of BWBO’s client’s restaurant. Plaintiff alleged more than $385,000 in past medical specials (with high potential for future care and treatment) with exposure in excess of $1,000,000.00. The Plaintiff named as Defendants BWBO’s client as well as several entities related to their landlord.

Early in the case, Las Vegas Partner Jeffrey W. Saab and Senior Associate D. Ryan Efros moved for summary judgment based on terms of the restaurant’s lease. They argued that based on the lease, the duty to maintain the surface of the parking lot fell exclusively to the landlord, rather than the restaurant’s client. Plaintiff opposed the motion arguing that the prevailing case law held that any agreement between a tenant and its landlord does not preclude a plaintiff from asserting either or both defendants breached their duties of care. Jeff and Ryan distinguished that case and successfully persuaded the Court that there could be no contractual duty and no common law duty to maintain the parking surface, clearing the way for the court to grant summary judgment.

Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
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Hourglass in forest

In 2019 Anssi Auvinen started up Aecmaster, a software and consulting firm that aims to fulfill the promise of digitalization.

Aecmaster’s Digital Twin: A New Era for Building Design

Monday, May 6, 2024 — Aarni Heiskanen - AEC Business

I sat down with Anssi Auvinen, the CEO and founder of Finnish startup Aecmaster, to discuss the future of design and how the company plans to make it happen. Anssi envisions data-driven design as the next radical change in the AEC sector.

Anssi Auvinen started working in the building industry as a 16-year-old construction worker. Since then, he has acquired two master’s degrees: structural engineering and architecture.

During his career, Anssi has witnessed how the digitalization of the design sector has progressed, but the results for both designers and building owners could have been more impressive. That inspired him in 2019 to start up Aecmaster, a software and consulting firm that aims to fulfill the promise of digitalization. The company’s software product launched in January 2024.

The need for digital twins
Anssi states that you can’t say you own a building until you possess its digital assets, the digital twin.

Reprinted courtesy of Aarni Heiskanen, AEC Business

Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Report on typewriter

The ABC Safety report is unveiled to coincide with Construction Safety Week, May 6-10.

ABC Safety Report: Construction Companies Can Be Nearly 6 Times Safer Than the Industry Average Through Best Practices

Monday, May 6, 2024 — Associated Builders and Contractors

WASHINGTON, April 30, 2024 (GLOBE NEWSWIRE) -- Associated Builders and Contractors today announced the findings from its 2024 Safety Performance Report, an annual guide to construction jobsite health and safety best practices. The report is unveiled to coincide with Construction Safety Week, May 6-10.

The annual safety report also provides a comprehensive understanding of the impact of deploying ABC's STEP Safety Management System, which enables top-performing ABC members to achieve incident rates 576% safer than the U.S. Bureau of Labor Statistics construction industry average. Established in 1989, STEP provides contractors and suppliers with a robust, no-cost framework for measuring safety data and benchmarking with peers in the industry.

ABC's research on more than 900 million work hours completed by participants in the construction, heavy construction, civil engineering and specialty trades in 2023 identified the following foundations of industry-leading safety best practices:

  • Top management engagement: Employer involvement at the highest level of company management produces a 54% reduction in total recordable incident rates, or TRIR, and a 52% reduction in days away, restricted or transferred rates, or DART rates.
  • Substance abuse prevention programs: Robust substance abuse prevention programs/policies with provisions for drug and alcohol testing where permitted lead to a 47% reduction in TRIR and a 48% reduction in DART rates.
  • New hire safety orientation: Companies that conduct an in-depth indoctrination of new employees into the safety culture, systems and processes based on a documented orientation process experience incident rates that are 45% lower than companies that limit their orientations to basic health and safety compliance topics.
  • Frequency of toolbox talks: Companies that conduct daily, 15-to-30-minute toolbox talks reduce TRIR and DART rates by 81% compared to companies that hold them monthly.

The 2024 ABC Safety Performance Report is based on submissions of unique company data gathered from members that deployed during the 2023 STEP term, Jan. 15-Dec. 15. ABC collects each company's trailing indicator data as reported on its annual Occupational Safety and Health Administration Form 300A ("Summary of Work-Related Injuries and Illnesses") and its self-assessment of leading indicator practices from its STEP application. Each data point collected is sorted using statistically valid methodology developed by the BLS for its annual Occupational Injuries and Illnesses Survey and then combined to produce analyses of STEP member performance against BLS industry average incident rates. The report demonstrates that applying industry-leading processes dramatically improves health and safety performance among participants regardless of company size or type of work.

Any company can participate in STEP. Visit abc.org/step to begin or continue your safety journey.





Sticky notes on corkboard

‘Satisfaction is code for ordinary’—and other takeaways from ABC Convention 2024 in sunny Kissimmee, Florida.

ICYMI: Highlights From ABC Convention 2024

Monday, May 6, 2024 — Grace Calengor - Construction Executive

In case you missed ABC Convention 2024 in Kissimmee, Florida, last month, here are key highlights from the week of competitions, exhibitions, speakers, performances and more.

WINNERS AND HONOREES
Contractor of the Year

  • Kwest Group was announced as ABC’s 2024 Contractor of the Year. Read CE's full story here.

Careers in Construction Awards

  • A total of 25 teams comprising undergraduate students from colleges across the country competed in ABC's 2024 Construction Management Competition, developing proposals for a project that included renovation and new construction at the Fort Lauderdale Aquatic Center. The overall winner was the team from Clemson University, a member of ABC of the Carolinas. For a full list of winners in all categories, visit here.
  • In the 35th year of ABC's National Craft Championships, nearly 200 skilled trades workers displayed their craft in the exhibit hall—taking home bronze, silver and gold as well as recognition for safety in 16 categories. For a full list of winners, visit here.

Reprinted courtesy of Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.



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Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

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