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America’s richly diverse private business sector finds itself increasingly subject to unprecedented governmental orders and restrictions that were unheard of only a few weeks ago.

The Pandemic of Litigation Sure to Follow the Coronavirus

Monday, March 30, 2020 — Aaron Lovaas - Newmeyer Dillion

As the Coronavirus crisis persists, America’s richly diverse private business sector finds itself increasingly subject to unprecedented governmental orders and restrictions that were unheard of only a few weeks ago. While the various “shutdown,” “shelter in place,” and “non-essential business” orders all aim to protect the public health, there is no doubt that the wave of litigation to follow is already swelling.

Business interruption, civil authority, and cyber insurance coverages have already been widely discussed as issues certain to be litigated over the coming months and beyond. Additionally, breach of contract litigation is likely to spike as parties attempt to recoup their losses from canceled events, unfulfilled purchase commitments and other unmet obligations.

Moreover, regional and national businesses are now in the difficult position of managing their respective affairs to comply with a patchwork of executive orders that are inconsistent from state to state. And, as the pandemic wears on, many are questioning the authority under which some of these executive orders and emergency regulations are being issued in the first place. Indeed, constitutional challenges are almost certain to follow as the business community reframes the characterization of their losses into notions of unconstitutional takings of private property and governmental impairment of private contract rights.

Reprinted courtesy of Aaron Lovaas, Newmeyer Dillion

Mr. Lovaas may be contacted at aaron.lovaas@ndlf.com

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The case, Cajun Conti, LLC, et al. v. Certain Underwriters at Lloyd's of London, ,et al., was filed in Louisiana.

First Suit Filed for Losses Caused by COVID-19

Monday, March 30, 2020 — Tred R. Eyerly - Insurance Law Hawaii

Last week, the first lawsuit was filed seeking insurance coverage for business-interruption due to losses caused by COVID-19. The case, Cajun Conti, LLC, et al. v. Certain Underwriters at Lloyd's of London, ,et al., was filed in Louisiana. A New Orleans restaurant, Oceana Grill," seeks a declaratory judgment that its "all risks" policy issued by Lloyd's covers losses resulting from the closure of its restaurant due to the Governor's order restricting public gatherings and the Mayor of New Orleans' order closing restaurants.

The lawsuit contends that "contamination of the insured premises by the coronavirus would be a direct physical loss needing remediation to clean the surfaces of the establishment." The lawsuit further alleges the policy contains no exclusions for a "viral pandemic." The suit seeks a declaration that "the policy provides coverage to plaintiffs for any future civil authority shutdowns of restaurants in the New Orleans area due to physical loss from coronavirus contamination and that the policy provides business income coverage in the event that the coronavirus has contaminated the insured premises." The obvious dispute will be whether the coronavirus constitutes a "direct physical loss or damage" as required by the policy.

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

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

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The coronavirus will impact the construction labor market, construction supply chains, on the ability of contractors to deliver projects on time and within budget, and on decisions by owners whether to move forward with projects altogether.

Coronavirus, Force Majeure, and Delay and Time-Impact Claims

Monday, March 30, 2020 — Garret Murai - California Construction Law Blog

It’s scary, uncertain times as the world grasps with how to deal with the coronavirus pandemic that has now spread to every continent on the globe with the exception of Antarctica. Although this is a global crisis, it has, and for the immediately future will continue to have, a direct impact on us individually as well our industry.

While the impact of the coronavirus on the construction industry is uncertain, what is certain, is that it will have an impact, whether on the construction labor market, on construction supply chains, on the ability of contractors to deliver projects on time and within budget, and on decisions by owners whether to move forward with projects altogether.

According to Ken Simonson, chief economist with the Associated General Contractors of America, during an interview at the ConExpo conference this past week in Las Vegas, while the coronavirus crises “is a story evolving by the hour . . . the impacts on construction are going to happen, but it’s hard to say how extensive, how long they’ll last, [and] how soon they’ll show up.”

From a legal perspective, the coronavirus, and really any natural disaster, from the “Campfire Fire” in Northern California in 2018 to the “Big One” which can happen anytime, has the potential to adversely impact a construction project or shut it down completely. This in turn raises two different, but interrelated legal concepts: (1) force majeure; and (2) delay and time-impact claims.

Reprinted courtesy of Garret Murai, Nomos LLP

Mr. Murai may be contacted at gmurai@nomosllp.com

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New York Shuts More Projects As COVID-19 Cases Soar

March 30, 2020 — Eydie Cubarrubia & Debra K. Rubin - Engineering News-Record

New York has narrowed the definition of "essential" construction, closing most projects in the state following concerns about worker safety as numbers rise related to COVIS-19 cases and deaths.

Reprinted courtesy of Eydie Cubarrubia, Engineering News-Record and Debra K. Rubin, Engineering News-Record
Ms. Cubarrubia may be contacted at cubarrubiae@enr.com
Ms. Rubin may be contacted at rubind@enr.com

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“Direct Physical Loss or Damage”: The Gatekeeper to Property Insurance Coverage and COVID-19

March 30, 2020 — Edward M. Koch & Elizabeth C. Dolce - White and Williams LLP

Commentary on insurance coverage for businesses in the wake of coronavirus (COVID-19) has largely, and unsurprisingly, focused on business interruption losses, civil authority provisions, and virus exclusions. However, to get there, policyholders must first get past the gatekeeper to coverage: the “direct physical loss or damage” requirement. The key to coverage for COVID-19-related property claims will be whether the presence or threat of the virus on insured property satisfies this requirement.

While the science, economic impact, and most other aspects of COVID-19 are truly “novel,” insurers and policyholders have been arguing, and courts have been interpreting, the meaning of “direct physical loss or damage” for decades. In the inevitable COVID-19 coverage litigation to come,[1] we expect courts will look to cases analyzing non-structural “invisible” damage (e.g., from toxic gases, bacteria, and odors) to decide whether the presence or threat of the virus at insured property constitutes “direct physical loss or damage.”

Reprinted courtesy of Edward M. Koch, White and Williams LLP and Elizabeth C. Dolce, White and Williams LLP
Mr. Koch may be contacted at koche@whiteandwilliams.com
Ms. Dolce may be contacted at dolcee@whiteandwilliams.com

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Arizona Governor Ducey’s Executive Order on Residential Eviction Actions

March 30, 2020 — Bob Henry - Snell & Wilmer Real Estate Litigation Blog

As part of the State of Arizona’s response to the current public health crisis, on March 24, 2020, Arizona Governor Ducey issued Executive Order 2020-14, titled “Postponement of Eviction Actions.” A copy of the Executive Order is linked here: https://azgovernor.gov/executive-orders Residential landlords considering taking any action against tenants, including evictions, should be aware of this Order before proceeding.

In summary, the Order effectively requires all Arizona law enforcement officers who are typically charged with enforcing “eviction action orders” (from Arizona courts) to “temporarily delay enforcement” of such orders in various circumstances, including for tenants who are quarantined, or who are residing with others who are quarantined, because of COVID-19 (including self-quarantines pursuant to orders from licensed medical providers) or for tenants who have a health condition that “makes them more at risk for COVID-19 than the average person.” The Order also requires such actions to be delayed if the tenant has “suffered a substantial loss of income resulting from COVID-19” due to job loss, reduction in compensation, and similar economic problems arising out of the pandemic. Thus, the Order is designed to provide some protection for tenants who have medical or financial problems arising out of and relating to the COVID-19 crisis.

Mr. Henry may be contacted at bhenry@swlaw.com

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Introducing the C-PACE Webinar Series

March 30, 2020 — White and Williams LLP

Commercial Property Assessed Clean Energy (C-PACE) loans are designed to help property owners lower their operating costs with clean energy solutions that increase efficiency and reduce carbon emissions. Philadelphia and Pennsylvania have officially joined this national movement to enact their own C-PACE programs. As C-PACE loans grow in popularity, developers, lenders and advisors must navigate this changing landscape.

White and Williams and CounterpointeSRE are pleased to announce a series of webinars this spring designed to explain the benefits of and answer questions about C-PACE financing.

Upcoming events
C-PACE 101: Tuesday, April 7, 2020
C-PACE for New Construction/Retrofits: Tuesday, April 14, 2020
C-PACE for Retrofits/Maximizing Value of Existing Buildings: Tuesday, April 28, 2020
C-PACE for Green Roofs and Renewables: Tuesday, May 12, 2020

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Government orders, and related resources, that have been announced and/or are currently in effect.

COVID-19 Business Closure and Continuity Compliance Resource

Monday, March 30, 2020 — Adam Chelminiak, Joshua Mooney & Ryan Udell - White and Williams LLP

In less than a few weeks’ time, COVID-19 has changed the way we live and work. Businesses, large and small, have had to grapple with unprecedented challenges, including orders to close or significantly curtail operations in order to stem the transmission of the coronavirus. Often, these orders have not been clear or businesses are unsure whether they fit in a category that is deemed essential, life sustaining or other similar category that permits them to continue to operate. Or, the business believes that it is necessary for it to continue to operate for reasons that may not have been apparent to the governmental authority issuing the order.

White and Williams has been busy assisting our clients in Connecticut, Delaware, Massachusetts, New Jersey, New York, Pennsylvania, Rhode Island and other states in understanding these orders. Below are government orders, and related resources, that have been announced and/or are currently in effect. White and Williams will continue to monitor these orders and add additional orders and resources as they are announced.

Reprinted courtesy of White and Williams LLP attorneys Adam Chelminiak, Joshua Mooney and Ryan Udell
Mr. Chelminiak may be contacted at chelminiaka@whiteandwilliams.com
Mr. Mooney may be contacted at mooneyj@whiteandwilliams.com
Mr. Udell may be contacted at udellr@whiteandwilliams.com

Read the full story for government orders, and related resources, that have been announced and/or are currently in effect.



Woman holding cash in front of laptop

The “Families First Coronavirus Response Act” contains provisions related to mandatory paid leave for employers with fewer than 500 employees.

“Families First Coronavirus Response Act”: Emergency Paid Leave for Construction Employers with Fewer Than 500 Employees

Monday, March 30, 2020 — Sidney Lewis & Alex Glaser, Jones Walker LLP - ConsensusDocs

COVID-19 has already taken a toll on construction projects across the nation. Construction industry participants, including general contractors, now face risks and challenges that are exceedingly difficult to anticipate and plan for. The spread of this virus has and will continue to create new labor force issues and amplify existing ones.

On March 18, 2020, the House of Representatives passed H.R. 6021, the “Families First Coronavirus Response Act,” which, contains provisions related to mandatory paid leave for employers with fewer than 500 employees. This legislation and the substantial obligations it imposes apply to the overwhelming number of general contractors in the nation—those with less than 500 full-time employees! The bill mandates up to 80 hours of “emergency paid leave” related to COVID-19, and not just for those who contract the illness. However, contractors with less than 50 employees may seek exemption.

Reprinted courtesy of Sidney Lewis, Jones Walker LLP and Alex Glaser, Jones Walker LLP
Mr. Lewis may be contacted at slewis@joneswalker.com
Mr. Glaser may be contacted at aglaser@joneswalker.com


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Businesses should evaluate what contractual obligations and remedies are available under various agreements.

Coronavirus and Contract Obligations

Monday, March 30, 2020 — David R. Cook - AHC Construction and Procurement Blog

The Coronavirus (COVID-19) pandemic has caused a global disruption to businesses, causing many to temporarily close and lay off employees. As businesses assess the short– and long–term economic impact of COVID-19, they should also evaluate what contractual obligations and remedies are available under various agreements (e.g., leases, vendor agreements, and supply agreements). When performance may be delayed or may not occur altogether, businesses should consider their force majeure clauses, if any, and the doctrines of impossibility, impracticability, and frustration of purpose.

Force Majeure

Generally, unless a contract provides that performance will be suspended or relieved when certain events occur (e.g., “acts of God,” government regulation, acts of war or terror, strikes), each party is obligated to perform. However, when there is an express force majeure provision, certain events or acts may excuse non-performance or delayed performance. But depending on the jurisdiction, courts may construe force majeure provisions narrowly and excuse performance only for those events expressly listed in the clause. Nonetheless, if the force majeure provision includes pandemic, epidemic, quarantine, government act, disease, or similar terms, then the COVID-19 pandemic may excuse performance or allow delayed performance.

Reprinted courtesy of David R. Cook, Autry, Hall & Cook, LLP

Mr. Cook may be contacted at cook@ahclaw.com

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Gov. Gavin Newsom waived certain provisions of the Bagley-Keene Act and Ralph M. Brown Act.

Brown Act Modifications in Response to Coronavirus Outbreak

Monday, March 30, 2020 — Gregory J. Rolen - Haight Brown & Bonesteel

Gov. Gavin Newsom waived certain provisions of the Bagley-Keene Act and Ralph M. Brown Act to make state and local legislative bodies safer while allowing California public entities to conduct business.

In an effort to promote social distancing and slow the spread of the coronavirus pandemic Gov. Newsom issued Executive Order N-25-20. The Executive Order authorizes state and local legislative bodies, such as school district and county office of education governing boards, to more easily hold public meetings by way of teleconference. The order took further steps to make public meetings accessible to the public via electronic means, including telephone.

The Brown Act generally requires legislative body members, a clerk, or other personnel to be physically present in a meeting in order to participate or establish a quorum. Executive Order N-25-20 temporarily eliminates this requirement. Furthermore, standard Brown Act requirements such as publicly noticing the teleconference location for each meeting participant is also suspended. Clearly, this is an attempt to protect the public, as well as Board members and staff, by temporarily discouraging large group settings in the conduct of the public’s business.

Reprinted courtesy of Gregory J. Rolen, Haight Brown & Bonesteel

Mr. Rolen may be contacted at grolen@hbblaw.com

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NOW is the time to consider the potential force majeure impacts associated with the pandemic Coronavirus.

Be Proactive, Not Reactive, To Preserve Force Majeure Rights Regarding The Coronavirus

Monday, March 30, 2020 — David Adelstein - Florida Construction Legal Updates

If you are involved in construction, NOW is the time to consider the potential force majeure impacts associated with the pandemic Coronavirus. Things are beginning to drastically change on a minute-by-minute basis. From travel restrictions, to the suspension or cancellation of events on an international level, to company-wide policies and restrictions, the global uncertainty has led to the possibility that a force majeure delay will occur. Thinking otherwise is not being proactive. The Coronavirus, and the impacts / delays associated therewith, is beyond anyone’s control. Due to the uncertainty, it is hard to fathom at this time a reasonable challenge to someone’s reaction to this concern or their companywide response to the concern.

    If you are a contractor, subcontractor, or even a supplier, my suggestions would be as follows:
  1. Revisit your contracts and see what type of force majeure language it has – anything relating to delays beyond your control or epidemics;
  2. Examine to see whether you have a basis for additional compensation AND additional time;
  3. Examine what type of notice you are required to provide for force majeure events;
  4. Be proactive – send notice now of the potentiality that this pandemic can impact / delay the job –no one should take offense to this letter as this pandemic has impacted all walks of life;
  5. If an impact occurs, send follow-up notice accordingly to ensure rights under the contract are preserved; and
  6. For future contracts, incorporate language that specifically addresses epidemics and pandemics now that the occurrence of this issue has become real.
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

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

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While you should always know the notice provisions of your construction contract, in times like these such knowledge is imperative.

Construction in the Time of Coronavirus

Monday, March 30, 2020 — Christopher G. Hill - Construction Law Musings

One cannot look look at one’s phone, computer or even the road outside the window without seeing signs of the impact that coronavirus (COVD-19) is having on the world at large. Schools are shut down, traffic is lighter and there is the daily count of new confirmed cases, in Virginia and elsewhere. “Social distancing” is the buzzword of the day. I am writing this post from a home office because of CDC and other guidance regarding the best way to “flatten the curve.” We have all been told to avoid large groups and stay close to home.

All of this is well and good, but construction must go on. In travelling around Richmond, I see construction vehicles on the road quite a bit. This is a good thing. It seems that most of the Richmond, Virginia area contractors are trying to stay as close to “business as usual” as possible while still remaining vigilant and careful to follow CDC and OSHA guidelines on workplace activity and COVD-19. However, the situation is ever changing and government and other outside forces could lead to project slowdowns, project shutdowns or other virus related impacts to everything from permitting to staffing of a project.

As I have discussed, likely ad nauseam, any commercial or residential construction project is controlled by a series of contracts (hopefully well drafted) that control the relationships on the job. Subcontractors in particular have the provisions of their subcontract and those of the prime contract to worry about. One of the major provisions that could trip up any construction professionals on these jobs is the notice provision of the subcontract (thanks for the reminder go to a friend and fellow construction lawyer Mark Cobb at his blog).

Reprinted courtesy of The Law Office of Christopher G. Hill

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

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Coronavirus Hammers Construction Projects

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What, if any, impact could the virus have on a contractor’s surety bond program?

COVID-19 Could Impact Contractor Performance Bonds

Monday, March 30, 2020 — Ben Williams & MG Surety - Construction Executive

As COVID-19 continues to expand around the United States and the world, it may only be a matter of time before U.S. construction projects are affected by the virus. Performance bonds guarantee that a project will be completed by a contractor according to the contract. However, what if a contractor cannot complete a project on time due to widespread disease? What, if any, impact could the virus have on a contractor’s surety bond program?

Risk Factors

Several risks associated with the virus could trigger a performance bond claim.

1. Materials. The Chinese account for a large supply of construction materials, including steel, copper, cabinetry, etc. An inability to obtain these materials could significantly delay or stop a project all together. Even if a contractor is able to obtain them from other sources, it may be at a significantly higher cost than they put into the bid.

2. Labor. There is already a shortage of qualified labor in the construction industry. Additionally, construction already lends itself to the spreading of viruses; workers are often in close proximity, handling common materials, and they may not have an easily accessible place to wash their hands. Furthermore, even though many now have paid sick leave, there is often pressure not to use it. These things could magnify the labor shortage and make it difficult to complete projects on time.

3. Safety. Finally, the world is having a serious shortage of respirators. Because of widespread panic, many people have been purchasing N95 respirators—so much that the Surgeon General has asked people to stop buying them. It has created a shortage for people who really need them, like contractors. If contractors can’t get these safety masks, certain trades will either be unable to work, or risk continuing the project without masks, which would endanger workers and open them up to OSHA penalties.

Reprinted courtesy of Ben Williams and MG Surety, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


Mr. Williams may be contacted at benw@mgsuretybonds.com

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The Empire State Development Corp. (acting on behalf of Governor Cuomo) has frozen most construction in New York.

New York Shuts Down Majority of Construction

Monday, March 30, 2020 — Laura Bourgeois LoBue & Matthew D. Stockwell - Gravel2Gavel Construction & Real Estate Law Blog

Due to pressure from construction workers, officials, and some construction workers having tested positive for COVID-19, the Empire State Development Corp. (acting on behalf of Governor Cuomo) has frozen all construction in New York today, with the exception of work on hospitals and health care facilities, transit facilities, roads and bridges, affordable housing and homeless shelters.

As a result, commercial construction and condominium projects are on hold, with the exception of work that must be completed to prevent unsafe conditions. Until now, construction has been considered “essential” in New York.

Reprinted courtesy of Laura Bourgeois LoBue, Pillsbury and Matthew D. Stockwell, Pillsbury
Ms. LoBue may be contacted at laura.lobue@pillsburylaw.com
Mr. Stockwell may be contacted at matthew.stockwell@pillsburylaw.com



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Tracking developing industry impacts as COVID-19 forces closures and interrupts global business

Latest Updates On The Coronavirus Pandemic

Monday, March 30, 2020 — ENR Editors - Engineering News-Record

Coronavirus has struck a heavy blow against the world economy as it forces countries into lockdown with "closed for business" signs, hollows out the tourism, travel and hospitality sectors, turns out the lights on business gatherings and events, sends employees home to work and drives the stock market into a dizzying tumble.

ENR Editors

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

Read the full story for ENR's ongoing reporting, analysis and commentary on construction sector developments





Two business people discussing contract over coffee

The hospitality industry as well as organizations that are canceling events are scrambling to understand the legal consequences of these costly terminations.

COVID-19 Response: Key Legal Considerations for Event Cancellations

Monday, March 30, 2020 — Michael G. Platner, Solomon B. Zoberman, & Jane C. Luxton - Lewis Brisbois

Every passing day brings stark new reports of novel coronavirus (COVID-19) cases and increasing numbers of cancelled conventions, concerts, and other major events. Both the hospitality and travel industry on the one hand, and organizations that are canceling events on the other, are scrambling to understand the legal consequences of these costly terminations. Cancellation fees can be breathtaking, and affected parties are quickly learning that there are no simple answers as to whether a disease outbreak of this scope and scale falls within force majeure (or Act of God) clauses that either do not explicitly list, or arguably may never have contemplated, circumstances of this type.

Generally, force majeure clauses excuse parties’ performance under a contract when circumstances that are beyond their control arise and prevent them from fulfilling their obligations. The party electing to enforce its rights under the force majeure clause must show that the triggering event qualifies as a force majeure event, and that the event has rendered the party’s performance impossible or impracticable.

Reprinted courtesy of Lewis Brisbois attorneys Michael G. Platner, Solomon B. Zoberman and Jane C. Luxton
Mr. Platner may be contacted at Michael.Platner@lewisbrisbois.com
Mr. Zoberman may be contacted at Solomon.Zoberman@lewisbrisbois.com
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com



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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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