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The Texas Supreme Court held that an insurer’s invocation of a contractual appraisal provision after denying a claim does not as a matter of law insulate it from liability under the TPPCA.

Texas Supreme Court Holds that Invoking Appraisal Provision and Paying Appraisal Amount Does Not Insulate an Insurer from Damages Under the Texas Prompt Payment of Claims Act

Monday, September 16, 2019 — John C. Eichman & Grayson L. Linyard - Hunton Insurance Recovery Blog

In two cases decided June 28, 2019, the Texas Supreme Court held that an insurer’s invocation of a contractual appraisal provision after denying a claim does not as a matter of law insulate it from liability under the Texas Prompt Payment of Claims Act (“TPPCA”). But, on the other hand, the court also held that the insurer’s payment of the appraisal award does not as a matter of law establish its liability under the policy for purposes of TPPCA damages.

In Barbara Techs. Corp. v. State Farm Lloyds, No. 17-0640, 2019 WL 2666484, at *1 (Tex. June 28, 2019), State Farm Lloyds issued property insurance to Barbara Technologies Corporation for a commercial property. A wind and hail storm damaged the property, and Barbara Tech filed a claim under the policy. State Farm denied the claim, asserting that damages were less than the $5,000 deductible.

Barbara Tech filed suit against State Farm, including for violation of the TPPCA. Six months later, State Farm invoked the appraisal provision of the policy. More than a year after the suit was filed, appraisers agreed to a value of $195,345.63. State Farm then paid that amount, minus depreciation and the deductible. Barbara Tech amended its petition to include only TPPCA claims.

Reprinted courtesy of John C. Eichman, Hunton Andrews Kurth and Grayson L. Linyard, Hunton Andrews Kurth
Mr. Eichman may be contacted at jeichman@HuntonAK.com
Mr. Linyard may be contacted at glinyard@HuntonAK.com


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The right to make a Miller Act claim is not available to all subcontractors and suppliers.

Federal Miller Act Payment Bond Claim: Who Gets Paid and Who Does Not? What Are the Deadlines?

Monday, September 16, 2019 — William L. Porter - Porter Law Group

When working on federal public works construction projects there are no Stop Payment Notice or Mechanics Lien remedies available to protect subcontractors’ and suppliers’ right to payment. Instead, unpaid subcontractors and suppliers must resort to making a claim for payment under a federal law known as the AMiller Act@ (40 USCS 3131 et seq.). Many claimants however, do not realize that the right to make a Miller Act claim is not available to all subcontractors and suppliers. Before committing to performing work on a federal project it is important for subcontractors and suppliers to understand whether or not a Miller Act claim will be available. For those who have no Miller Act rights, careful consideration must be given to whether it is worth the risk to take on the project. For those who have valid Miller Act claim rights, important deadlines must be considered.

Who Gets Paid Under a Miller Act and Who Does Not

For federal projects in excess of $100,000, contractors who have a contract directly with the Federal Government must obtain Miller Act Payment Bond intended for the protection of Subcontractors, laborers and material suppliers to the project.

As a general rule, every subcontractor, laborer, or material supplier who deals directly with the prime contractor and is unpaid may bring a lawsuit for payment against the Miller Act Payment Bond. Further, every unpaid subcontractor, laborer, or material supplier who has a direct contractual relationship with a first-tier subcontractor may bring such an action. The deadlines for these claims are described below.

Reprinted courtesy of William L. Porter, Porter Law Group

Mr. Porter may be contacted at bporter@porterlaw.com

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Colorado’s holding should put both insurers and policyholders on notice to review the language of appraisal provisions commonly found in first party policies.

Colorado Supreme Court Decision Could Tarnish Appraisal Process for Policyholders

Monday, September 16, 2019 — Michael V. Pepe - Saxe Doernberger & Vita, P.C.

On June 24, 2019, the Colorado Supreme Court ruled that the plain language of appraisal provisions in insurance policies, requiring “impartial appraisers,” direct appraisers to be “unbiased, disinterested, and unswayed by personal interest,” regardless of who hires them, and prohibits the party-appointed appraisers from acting as advocates.

A common and attractive alternative dispute resolution option, the appraisal process usually entails the policyholder and insurer each hiring their own appraiser, who estimates how much the claim is worth. These appraisers also select a third-party umpire, and if they cannot agree upon one, a court appoints one. The umpire analyzes the conflicting estimates and presents a number to resolve the dispute. If two of the three parties agree with the outcome, the number becomes binding.

Owners Ins. Co. v. Dakota Station II Condo. Ass'n, Inc.1 began when Dakota Station II Condominium Association Inc. (“Dakota”) and its insurer, Owners Insurance Company (“Owners”) could not agree on how to value two claims arising out of weather damage. To settle the differences and come to a resolution, Dakota invoked the appraisal provision in the insurance policy instructing each party to select its own “competent and impartial appraiser.” Ultimately, a court-appointed umpire considered six cost categories in dispute and adopted four of Owners’ estimates and two of Dakota’s.

Reprinted courtesy of Michael V. Pepe, Saxe Doernberger & Vita, P.C.

Mr. Pepe may be contacted at mvp@sdvlaw.com

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Bridging the Gap Between Old and New Schools of Construction

September 16, 2019 — Adam Quiñones - Construction Executive

It is undeniable that the construction industry is experiencing a period of expansion and success since the gloomy years of the great recession. This rapid growth in the volume of new construction has created unique opportunities for millennials to enter an industry in which entry-level positions are bountiful and the compensation is enticing.

However, young construction professionals are entering a workforce with one of the highest age gaps between senior-level managers and fledging graduates who are seeking life-long careers in construction. Studies show that the construction industry has surpassed all other industries in age gap from the beginning of the great recession to the present-day boom by about two years. The average age of construction professional currently sits at about 40, which means the industry is facing an era of transition where experienced project managers and superintendents are phasing out of their careers—and the void is being filled by a new generation of skilled workers.

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

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Sixth Circuit Broadly Construes Policy Sublimit, Limits Recovery for Thai Factory Flood

September 16, 2019 — Lorelie S. Masters, Michael S. Levine & Geoffrey B. Fehling - Hunton Insurance Recovery Blog

A federal appeals court reversed an auto parts manufacturer’s summary judgment win, construing a policy limitation on flood hazards to apply broadly to all types of losses, even though the limit “does not expressly say what losses it limits.” In Federal-Mogul LLC v. Insurance Company of the State of Pennsylvania, manufacturer Federal-Mogul suffered more than $60 million in property and time-element losses following a 2011 flood in one of its factories in Thailand. Federal-Mogul submitted a claim to its insurer, but the insurer refused to pay more than $30 million because the flood occurred in a high hazard flood zone, to which the insurer argued a sublimit in the policy applied.

Reprinted courtesy of Peckar & Abramson, PC attorneys Lorelie S. Masters, Michael S. Levine and Geoffrey B. Fehling
Mr. Masters may be contacted at lmasters@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Fehling may be contacted at gfehling@HuntonAK.com

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More Housing? YIMBY, Please

September 16, 2019 — Tyler Cowen - Bloomberg

The YIMBY movement is definitely on to something: In many parts of the world it is too difficult to build new housing. The result is that lower-income individuals are priced out of some of the world’s most productive cities, such as San Francisco and London, because of exorbitant rents.

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NAHB International Builders Show

September 16, 2019 — Beverley BevenFlorez – CDJ Staff

The annual National Association of Home Builders (NAHB) International Business Show features educational sessions, master workshops, parties, exhibits, concerts, building showcases, and much more.

January 21st-23rd, 2020
Las Vegas Convention Center
3150 Paradise Rd
Las Vegas, NV 89109

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It is critical to include dispute resolution mechanisms in the contract at the beginning.

Techniques for Resolving Construction Disputes

Monday, September 16, 2019 — Jason Lambert - Construction Executive

With most construction projects involving dozens, if not hundreds, of companies and individuals, it is no surprise that conflicts arise that are not always able to be resolved on the jobsite. But these conflicts need not always reach the court room or cost thousands (or much more) to resolve. With some planning, contractors can build faster and less expensive dispute resolution options into their project so they can spend more time keeping the project moving and less time arguing over who is right.

Even for modest-sized projects, a multi-tiered approached to dispute resolution can be helpful. As a first level of dispute resolution, consider requiring the relevant parties to attend informal or formal mediation. The benefits of even an informal mediation is that it can get stalemated parties to the table to talk again. Formal mediation adds the benefit of a neutral third-party who can help get talks moving or help antagonistic parties communicate.

Further, mediation allows each side an opportunity to hear what the other side is looking for to resolve the dispute. Not only is this valuable in reaching a compromise, but it also gives each side an idea of what the other will bring to the table in any subsequent litigation. Finally, there are many ways to implement these procedures. General contractors can require pre-suit mediation with their subcontractors to resolve one-on-one disputes but should also consider requiring subcontractors to use pre-suit mediation to resolve disputes between subcontractors or between subcontractors and sub-subcontractors or material suppliers if the dispute threatens the progress at the project.

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


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14 Wilke Fleury attorneys were listed by Super Lawyers.

Wilke Fleury Attorneys Highlighted | 2019 Northern California Super Lawyers

Monday, September 16, 2019 — Wilke, Fleury, Hoffelt, Gould & Birney, LLP

Wilke Fleury is proud to announce that 14 of our astounding attorneys were featured in the Annual List of Top Attorneys in the 2019 Northern California Super Lawyers magazine.

Super Lawyers rates attorneys in each state using a patented selection process; they also publish a yearly magazine issue that regularly produces award-winning features on selected attorneys.

Reprinted courtesy of Wilke, Fleury, Hoffelt, Gould & Birney, LLP


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The last month of the Supreme Court’s term generated significant rulings on all manner of cases.

A Recap of the Supreme Court’s 2019 Summer Slate

Monday, September 16, 2019 — Anthony B. Cavender - Gravel2Gavel

As usual, the last month of the Supreme Court’s term generated significant rulings on all manner of cases, possibly presaging the new directions the Court will be taking in administrative and regulatory law. Here’s a brief roundup:

An Offshore Dispute, Resolve – Parker Drilling Management v. Newton
On June 10, 2019, the Court held, in a unanimous ruling, that, under federal law, California wage and hour laws do not apply to offshore operations conducted on the Outer Continental Shelf (OCS). Newton, the plaintiff, worked on drilling platforms off the coast of California, and alleged that he was not paid for his “standby time” which is contrary to California law if not federal law. He filed a class action in state court, which was removed to federal court, where it was dismissed on the basis of a 1969 decision of the U.S. Court of Appeals for the Fifth Circuit, which held that state law applies on the OCS only to the extent that it is necessary to use state law to fill a significant gap or void in federal law, and this is not the case here. On appeal to the Ninth Circuit, that court disagreed with the Fifth Circuit, and ruled that state law is applicable on the OCS whenever it applies to the matter at hand. The Supreme Court, in an opinion written by Justice Thomas, conceded that “this is a close question of statutory interpretation,” but in the end the Court agreed with the argument that if there was not a gap to fill, that ended the dispute over which law applies on the Outer continental Shelf. This ruling, recognizing the preeminent role that federal law plays on the OCS, may affect the resolution of other offshore disputes affecting other federal statutes.

Preemption Prevention – Virginia Uranium, Inc. v. Warren. et al.
On June 17, 2019 the Court decided important cases involving federal preemption and First Amendment issues. In a 6-to-3 decision, the Court held that the Atomic Energy Act does not preempt a Virginia law that “flatly prohibits uranium mining in Virginia”—or more precisely—mining on non-federal land in Virginia. Virginia Uranium planned to mine raw uranium from a site near Coles, Virginia, but acknowledging that Virginia law forbade such an operation, challenged the state law on federal preemption grounds, arguing that the Atomic Energy Act, as implemented by the Nuclear Regulatory Commission, preempts the ability of the state to regulate this activity. However, the majority, in an opinion written by Justice Gorsuch, notes that the “best reading of the AEA does not require us to hold the state law before us preempted,” and that the1983 precedent that Virginia Uranium cites, Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission, can easily be distinguished. Justice Gorsuch rejected arguments that the intent of the Virginia legislators in passing the state law should be consulted, that the Court’s ruling should normally be governed by the exact text of the statute at hand. However, both the concurring and dissenting opinions suggest that the what the legislators intended to do is important in a preemption context.

Reprinted courtesy of Anthony B. Cavender, Pillsbury

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Always show up.

Another Reason to Always Respond (or Hensel Phelps Wins One!)

Monday, September 16, 2019 — Christopher G. Hill - Construction Law Musings

Here at Construction Law Musings, Hensel Phelps Construction Co. is best known as the company that got whipsawed between indemnity rules and the lack of a statute of limitations for state agencies. However a recent case out of the Federal District Court for the Eastern District of Virginia gave them a win and illustrates, once again, that failing to appear or respond is never a good option.

In Hensel Phelps Construction Co. v. Perdomo Industrial LLC, the Alexandria, VA federal court looked at an arbitration award entered for Hensel Phelps and against Perdomo under the Federal Arbitration Act. The facts of the case showed that Perdomo “double dipped” into the deep end of refusal or failure to respond. First of all, the contract required arbitration and any award was enforceable in any state or federal court having jurisdiction. Based upon this language, Hensel Phelps filed a demand for arbitration with the American Arbitration Association against Perdomo and its surety, AAA sent notice to both Perdomo and Surety, and. . . neither responded or appeared at what was ultimately 8 days of hearings. After hearing Hensel Phelp’s evidence and the total lack of defenses from Perdomo and Surety, the panel issued an award in favor of Hensel Phelps, finding Perdomo LLC in default and holding Perdomo LLC and Allied World jointly and severally liable in the amount of $2,958,209.71 and Perdomo LLC individually liable in the amount of $7,917,666.30 plus interest.

Reprinted courtesy of The Law Office of Christopher G. Hill

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

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Storm in rural setting

An ounce of prevention is worth a pound of cure.

Ahead of the Storm: Preparing for Dorian

Monday, September 16, 2019 — Adam P. Handfinger, Stephen H. Reisman & Gary M. Stein - Peckar & Abramson, P.C.

While Hurricane Dorian churns in the Atlantic with its sights currently set on the east coast of Florida, storm preparations should be well underway. As you are busy organizing efforts to secure your job sites, we at Peckar & Abramson offer some quick reminders that may prove helpful:

  • Review your contracts, particularly the force majeure provisions, and be sure to comply with applicable notice requirements
  • Even if not expressly required at this time, consider providing written notice to project owners that their projects are being prepared for a potential hurricane or tropical storm and that the productivity and progress of the work will be affected, with the actual time and cost impact to be determined after the event.
  • Consult your hurricane plan (which is often a contract exhibit) and confirm compliance with all specified safety, security and protection measures.
  • Provide written notice to your subcontractors and suppliers of the actions they are required to take to secure and protect their portions of the work and the timetable for completion of their storm preparations.

Reprinted courtesy of Peckar & Abramson, PC attorneys Adam P. Handfinger, Stephen H. Reisman and Gary M. Stein
Mr. Handfinger may be contacted at ahandfinger@pecklaw.com
Mr. Reisman may be contacted at sreisman@pecklaw.com
Mr. Stein may be contacted at gstein@pecklaw.com


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San Francisco bay bridge

The need for a legal shield for peer review.

Seeking Better Peer Reviews After the FIU Bridge Collapse

Monday, September 16, 2019 — Engineering News-Record

On the surface, it seemed like an outrageous defensive move following a painful tragedy. Louis Berger Group has refused requests from the Dept. of Labor to hand over emails with FIGG Bridge Engineers about its peer review of the ill-fated Florida International University pedestrian bridge. The structure collapsed on March 15, 2018, killing six people and injuring several others.

Reprinted courtesy of Engineering News-Record

ENR may be contacted at ENR.com@bnpmedia.com

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Hurricane Dorian Leaves 'Apocalyptic' Damage in the Bahamas

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Ten with dart in the middle of zero

Super Lawyers recognizes attorneys who have distinguished themselves in their legal practice as recognized by their peers.

Ten Firm Members Recognized as Super Lawyers or Rising Stars

Monday, September 16, 2019 — Jonathan Schirmer - Ahlers Cressman & Sleight PLLC

While we avoid using this blog as a platform for self-promotion, long-time readers will know we make an exception to recognize the Super Lawyers of the firm, each of whom is humbled to receive this peer-rated award.

Super Lawyers recognizes attorneys who have distinguished themselves in their legal practice as recognized by their peers. Attorneys are selected through a patented selection process combining peer nominations and independent research. Results are based on legal excellence, industry involvement, and civic leadership. Only five percent of lawyers in Washington State are selected for the honor of Super Lawyers, and no more than 2.5 percent are selected for the honor of Super Lawyers Rising Stars.

John P. Ahlers, one of the firm’s founding partners, was again recognized as one of the Top 10 Lawyers out of all Washington lawyers.

Founding partner Paul R. Cressman Jr. was again recognized as one of the 100-Best Lawyers considering Lawyers State of Washington wide.

In addition, four other firm members are also recognized as Super Lawyers: Founding Partner Scott R. Sleight, Brett M. Hill, Bruce A. Cohen, and Lawrence S. Glosser. Partners Ryan W. Sternoff and Lindsay (Taft) Watkins, and associates Ceslie A. Blass and Scott D. MacDonald are all recognized as Super Lawyer Rising Stars, which recognizes attorneys either 40 years old or younger, or in practice 10 years or less.

Reprinted courtesy of Ahlers Cressman & Sleight PLLC
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Elderly couple looking at hurricane damage

The same storm previously hit the Virgin Islands through North Carolina.

Dorian Lashes East Canada, Then Weakens Heading Out to Sea

Monday, September 16, 2019 — The Associated Press (Rob Gillies) - Bloomberg

The storm that already walloped the Virgin Islands, Bahamas and North Carolina lashed at far-eastern Canada with hurricane-force winds for much of Sunday, knocking out power to hundreds of thousands of people before weakening and heading into the North Atlantic.

Dorian had hit near the city of Halifax Saturday afternoon, ripping roofs off apartment buildings, toppling a huge construction crane and uprooting trees. There were no reported deaths in Canada, though the storm was blamed for at least 50 elsewhere along its path.

Reprinted courtesy of The Associated Press (Rob Gillies), Bloomberg
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illustration of housing development one red house

Tamimi Group, SATCO get contracts to develop residential areas.

Saudi Arabia Awards Contracts for Megacity Neom’s Worker Housing

Monday, September 16, 2019 — Vivian Nereim - Bloomberg

Saudi Arabia has awarded to two Saudi firms contracts to build worker housing for its futuristic mega-city called Neom, as plans for the $500 billion project move forward despite skepticism from investors.

Tamimi Group and Saudi Arabian Trading & Construction Co. won contracts to finance, build and operate three residential areas with capacity to house 30,000 people, Neom said in a statement on Sunday. The areas will be part of a so-called “Construction Village,” which Neom later plans to expand to accommodate more than 100,000 residents, it said. Neom did not say how much the contracts were worth.

Reprinted courtesy of Vivian Nereim, Bloomberg
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Santa Monica California aerial beach view

Measure would cap rent hikes to 5% plus inflation for 10 years.

In Pricey California, Renters Near Respite From Landlord Gouging

Monday, September 16, 2019 — Noah Buhayar - Bloomberg

The housing crisis engulfing California has state lawmakers racing to pass bills that would boost construction and stop corporate landlords from egregiously jacking up rents.

The bills overcame key hurdles last week and are due for final votes before the legislature adjourns on Sept. 13. The hardest-fought measure would set a higher standard for evictions and cap annual rent increases at 5% plus the rate of inflation. While that’s below the typical pace of lease hikes -- and the bill has many caveats for landlords -- it would still mark the state’s most significant new protection for tenants in decades.

Reprinted courtesy of Noah Buhayar, Bloomberg
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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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