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CONSTRUCTION DEFECT NEWS
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The defendant has the burden of introducing evidence of an alternative measure of damages to challenge the measure of damages presented by the plaintiff and it is improper for the trial court to take judicial notice of an alternative measure of damages on its own.

Tennessee Court of Appeals Holds Defendant Has the Burden of Offering Alternative Measure of Damages to Prove that Plaintiff’s Measure of Damages is Unreasonable

Wednesday, July 18, 2018 — Gus Sara - The Subrogation Strategist

In Durkin v. MTown Construction, LLC, 2018 Tenn. App. LEXIS 128, the Court of Appeals of Tennessee considered whether the lower court properly took judicial notice of an alternative measure of damages to the measure of damages advanced by the plaintiff. The Court of Appeals held that the defendant has the burden of offering evidence of alternative measures of damages if it seeks to argue that the plaintiff’s measure of the damages is unreasonable. The Court of Appeals found that the lower court erred in taking judicial notice of alternative measures of damage when the defendant failed to meet its burden of proof. The court’s holding establishes that, if the defendant does not offer evidence of alternative measures of damage, then the measure of damages introduced by the plaintiff will apply.

Reprinted courtesy of Gus Sara, White and Williams LLP

Mr. Sara may be contacted at sarag@whiteandwilliams.com

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A statute of limitations test needs to be conducted at the beginning of each case.

Supreme Court of New Jersey Reviews Statutes of Limitation and the Discovery Rule in Construction Defect Cases

Wednesday, July 18, 2018 — David Suggs – Bert L. Howe & Associates, Inc.

Robert Neff Jr. of Wilson Elser analyzed the recent case, Palisades at Fort Lee Condo. Ass’n v. 100 Old Palisade, LLC, 2017 N.J. Lexis 845, 169 A.3d 473 (Supreme Court of New Jersey, September 14, 2017), and states that this ruling “gives defendants the ability to defend against the assertion that the statute of limitations was tolled until the most recent owner (and plaintiff) discovered the cause of action.”

Neff concludes that a statute of limitations test needs to be conducted at the beginning of each case: “In Palisades, the motions to dismiss based on the statute of limitations were filed at the conclusion of all discovery. While an initial analysis might yield the conclusion that certain discovery will be needed to ascertain the appropriate accrual date (or dates, in the case of multiple defendants), counsel will then know what discovery to seek during the discovery period.”


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Attorneys from the firm Hunton Andrews Kurth analyzed the case Ice Cube Building, LLC v. Scottsdale Insurance Co., No. 3:17-CV-00973 (VAB), 2018 WL 3025037 (D. Conn. June 18, 2018).

Connecticut Court Holds Unresolved Coverage Issues Makes Appraisal Premature

Wednesday, July 18, 2018 — Michael S. Levine, Lorelie S. Masters & Geoffrey B. Fehling – Hunton Insurance Recovery Law Blog

A Connecticut court recently denied a motion to compel appraisal of a claim for coverage of a commercial property damage claim, holding that, where the insurance policy at issue provides for appraisal of disputes related to the value or quantum or a loss suffered—not the rights and liabilities of the parties under the policy—appraisal is premature. The decision relied on law that equates insurance appraisal to arbitration and follows a number of decisions holding that parties cannot expand the scope of appraisal clauses to resolve questions of coverage or liability where, as in this case, those issues are not supported by the applicable policy language.

Reprinted courtesy of Hunton Andrews Kurth attorneys Michael S. Levine, Lorelie S. Masters and Geoffrey B. Fehling
Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Fehling may be contacted at gfehling@HuntonAK.com


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What the Construction Industry Says About Supreme Court Nominee Kavanaugh

July 18, 2018 — Tom Ichniowski – Engineering News-Record

As construction industry officials pore over the many rulings authored by federal appellate Judge Brett M. Kavanaugh, President Trump's nominee to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court, they see a philosophy that relies on, and does not go beyond, the text of federal statutes and regulations.

Mr. Ichniowski may be contacted at ichniowskit@enr.com

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Can Workers With Sun-Related Skin Issues File Workers' Compensation Claims?

July 18, 2018 — Scott Van Voorhis, Scott Blair, & Jonathan Barnes – Engineering News-Record

Shade tents and frequent water breaks are part of the strategies Kris Comon uses for dealing with 100°-plus temperatures and a punishing sun at a two-story building being constructed in Phoenix. Comon is project manager for UEB Builders, prime contractor for the Helios Education Foundation, and to beat the heat, work starts at 6 a.m. and ends in the early afternoon, he says.

Reprinted courtesy of ENR attorneys Scott Van Voorhis, Scott Blair and Jonathan Barnes
Mr. Blair may be contacted at blairs@enr.com

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Builder Confidence in July Remains Healthy

July 18, 2018 — Beverley BevenFlorez - CDJ STAFF

National Association of Home Builders’ (NAHB) Eye on Housing reported that builder confidence in the newly-built single-family homes market “remained unchanged at a solid 68 reading in July on the National Association of Home Builders/Wells Fargo Housing Market Index (HMI).” Builders remain optimistic regarding the housing market, due to continued solid demand for single-family homes.

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IRMI Construction Risk Conference

July 18, 2018 — Beverley BevenFlorez - CDJ STAFF

This four-day conference includes general sessions, breakout sessions, receptions, and networking opportunities. This premier construction insurance seminar will cover a myriad of topics including Workers Compensation Trends and Challenges in Construction, Construction Delays, Insurance Requirements for the Modern Construction Contract, and more.

November 4th-7th, 2018
Marriott Marquis Houston
1777 Walker Street
Houston, Texas 77010

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Newmeyer & Dillion LLP is pleased to announce that litigation attorney Alan Packer has been selected to the 2018 Northern California Super Lawyers list.

Newmeyer & Dillion’s Alan Packer Selected to 2018 Northern California Super Lawyers List

Wednesday, July 18, 2018 — Newmeyer & Dillion

WALNUT CREEK, Calif. – JULY 10, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that litigation attorney Alan Packer has been selected to the 2018 Northern California Super Lawyers list. No more than five percent of the lawyers in the state are selected by Super Lawyers each year.

Packer is a partner in the firm's expanding Walnut Creek office. He has practiced law in California for over 30 years, mostly representing parties involved in real estate, home building, commercial construction, and insurance matters. He represents business clients, homebuilders, property owners, and others in a broad range of legal matters.

Packer is a frequent speaker at seminars and in-house training sessions for clients on issues relating to risk management, construction litigation, and insurance.

Earlier this year, Newmeyer & Dillion attorneys in Newport Beach and Las Vegas were also selected to Super Lawyers lists. Packer brings its total to 19 Newmeyer & Dillion attorneys recognized.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations, resulting in a comprehensive and diverse listing of exceptional attorneys.

Alan Packer
Partner
Walnut Creek

Contact
925.988.3200
alan.packer@ndlf.com

Practices
Business Litigation
Construction Litigation
Insurance Law
Real Estate Litigation

About Newmeyer & Dillion

For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.



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The Rockefeller decision arguably makes it impossible to require foreign companies from some of the largest economies, including China, Japan, Germany, U.K., India, Korea, Russia and Mexico, to show up in a California court based on notice provided by mail, courier (FedEx), or email.

EPC Contractors Procuring from Foreign Companies need to Reconsider their Contracts

Wednesday, July 18, 2018 — Hwan Kim – Construction & Infrastructure Law Blog

A recent California case may force engineering, procurement and construction companies doing business with foreign suppliers to reconsider—and maybe rewrite—their contracts. In Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd., the California Court of Appeal held that parties may not contract around the formal service requirements of the Convention on the Service Abroad of Judicial and Extrajudicial Documents, commonly referred to as the Hague Service Convention. The decision could have profound implications for international business.

Reprinted courtesy of Hwan Kim, Sheppard, Mullin, Richter & Hampton LLP

Mr. Kim may be contacted at hkim@sheppardmullin.com

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On June 7, the New Jersey Senate passed a bill entitled the New Jersey Insurance Fair Conduct Act.

New Jersey Senate Advances Bad Faith Legislation

Wednesday, July 18, 2018 — TLSS Insurance Law Blog

New Jersey is the latest to join the list of states that have enacted or are considering enacting legislation that would authorize policyholders to file civil suits against first-party insurers for unfair business practices, such as unreasonably delaying or denying benefit payments, engaging in false advertising, or otherwise committing a wide range of unfair or deceptive practices.

On June 7, the New Jersey Senate passed a bill entitled the New Jersey Insurance Fair Conduct Act. The Act would create a new statutory cause of action pursuant to which a first-party insurer would be liable for bad faith based on a single statutory violation, thereby entitling an aggrieved policyholder to collect triple damages and attorneys’ fees. The proposed legislation is now before the state’s General Assembly for further consideration.

Reprinted courtesy of Traub Lieberman Straus & Shrewsberry LLP
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the Ninth Circuit reversed and remanded the matter, finding that “Nexlevel’s work here was ‘incidental and supplemental’ to the installation of these fiberoptic systems,” as contemplated by Cal. Code Regs. Tit. 16, § 831.

Ninth Circuit Issues Pro-Contractor Licensing Ruling

Wednesday, July 18, 2018 — Amy L. Pierce – Gravel2Gavel Construction & Real Estate Law Blog

On July 10, the U.S. Court of Appeals for the Ninth Circuit issued its much anticipated and a pro-contractor ruling in MP Nexlevel of California, Inc. v. CVIN LLC. The appeal arose from a dispute over the scope of a California specialty contractor’s license and, more particular, involved whether the subcontractor’s performance of certain work was outside the scope of its license constituting a breach of contract and resulting in the contractor not being entitled to payment for its work (Cal. Bus. & Prof. Code § 7031(a)). In an unpublished opinion, the Ninth Circuit reversed and remanded the matter, finding that “Nexlevel’s work here was ‘incidental and supplemental’ to the installation of these fiberoptic systems,” as contemplated by Cal. Code Regs. Tit. 16, § 831.

Reprinted courtesy of Amy L. Pierce, Pillsbury Winthrop Shaw Pittman LLP

Ms. Pierce may be contacted at amy.pierce@pillsburylaw.com

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The blast destroyed three buildings, including the Barr House, a tavern at 100 Main St. that was owned by the deceased fire captain, Cory Barr.

Investigators Eye Fiber Optic Work in Deadly Wisconsin Explosion

Wednesday, July 18, 2018 — Jeff Yoders – Engineering News-Record

A hole punched into a 4-in.-dia gas pipeline during fiber-optic line laying is blamed for an explosion that killed a 34-year-old fire captain and injured nine other people, including four firefighters, in downtown Sun Prairie, Wis., on July 10. The injured were treated at nearby hospitals and have since been released.

Reprinted courtesy of Jeff Yoders, ENR

Mr. Yoders may be contacted at yodersj@enr.com

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This article provides a helpful construction defects checklist that outlines the key avenues of risk and areas where construction defects litigation is most often focused.

Construction Defects Checklist

Wednesday, July 18, 2018 — Bremer Whyte Brown & O’Meara

Construction defects have existed since humans first began building structures, and will continue to be an occurrence into the future. For builder developers, contractors, and subcontractors, the specter of construction defects is a constant worry. Construction defect litigation is commonplace and can occur years after the construction project has been completed. This opens up an ongoing channel of risk and liability for construction contractors and project managers that are at risk of litigation far after they have completed a project. In this article, we’ll provide a helpful construction defects checklist that outlines the key avenues of risk and areas where construction defects litigation is most often focused. This checklist can help project managers, contractors, and subcontractors anticipate areas of their projects that may need extra attention or focus in order to ensure that they adhere to relevant local and state construction ordinances.

Gaining a greater understanding of what construction defects are can provide insight into how construction litigation can prove beneficial for structure owners or contractors who received substandard work. Many clients may not understand that they have an avenue to seek redress in cases where faulty workmanship may have resulted in economic damages or safety concerns in their home, building, or another construction project. Understanding the scope of what a construction defect is, and the areas that are most commonly litigated is helpful to understand when construction defect litigation is a viable option to pursue redress.

Reprinted courtesy of Bremer Whyte Brown & O’Meara
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Alleged Drainage Problem Blamed for Backyard Damage

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CONSTRUCTION DEFECT NEWS
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A Changes Clause provides a mechanism for dealing with imperfections as well as allowing project owners the flexibility to update a project’s design as the project progresses.

Back to Basics: What is a Changes Clause?

Wednesday, July 18, 2018 — J. Cole Phillips – Smith Currie

The Changes Clause is one of the most important, perhaps the most important, provision in any construction contract. Project designs are rarely perfect. A Changes Clause provides a mechanism for dealing with such imperfections as well as allowing project owners the flexibility to update a project’s design as the project progresses. A good Changes Clause specifies when an owner can change the original scope of the contract, how the parties should resolve the value of the changed scope and when payment should be made to the contractor or a credit given to the owner. A good Changes Clause will also provide a mechanism for the contractor to notify the owner when it believes a change order is due and specify the time within which such notice must be given. For the contractor, failure to pay attention to the requirements of the Changes Clause can lead to forfeiture of the right to seek an adjustment to the contract value or contract completion date. For an Owner, failure to pay attention to and enforce the requirements of the Changes Clause can result in unnecessary payments to the Contractor.

Reprinted courtesy of J. Cole Phillips, Smith Currie

Mr. Phillips may be contacted at jcphillips@smithcurrie.com

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Five Gold Stars

Twelve Wilke Fleury attorneys have been honored with the Super Lawyers and Rising Stars distinctions.

2018 Super Lawyers and Rising Stars!

Wednesday, July 18, 2018 — Wilke, Fleury, Hoffelt, Gould & Birney, LLP

Wilke Fleury is thrilled to announce our 2018 Super Lawyers and Rising Stars! Twelve of our talented attorneys have been honored with the Super Lawyers and Rising Stars distinctions.

Super Lawyers® is a service of the Thomson Reuters, Legal Division. Each year, the research team at Super Lawyers® undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. The Super Lawyers list represents only five percent of lawyers in California and Rising Stars reflects 2.5% of the state’s up-and-coming lawyers.

Congratulations to Wilke Fleury’s 2018 Super Lawyers and Rising Stars!

Reprinted courtesy of Wilke, Fleury, Hoffelt, Gould & Birney, LLP
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SCOTUS ruled that public employee unions cannot require non-members to pay union dues, even if those employees are benefiting from the services provided by the union.

Janus v. AFSCME

Wednesday, July 18, 2018 — Ryan Foltz – Gordon & Rees Construction Law Blog

On June 27, 2018, the Supreme Court of the United States issued its decision in Janus v. AFSCME1. By a 5-4 vote, SCOTUS ruled that public employee unions cannot require non-members to pay union dues, even if those employees are benefiting from the services provided by the union. 28 states already had “right-to-work” laws on the books, meaning that unions in those states were already precluded from collecting fees from non-union members. This ruling makes that ban a national standard.

Reprinted courtesy of Ryan Foltz, Gordon & Rees Scully Mansukhani

Mr. Foltz may be contacted at rfoltz@grsm.com

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The Trump administration proposal has many provisions that would require approval by Congress, including the envisioned breakup of Corps nonmilitary duties.

White House Plan Would Break Up Corps Civil-Works Functions

Wednesday, July 18, 2018 — Tom Ichniowski - Engineering News-Record

As part of a sweeping federal government reorganization proposal, the White House has recommended shifting the Army Corps of Engineers’ civil-works operation to the Dept. of Transportation and the Dept. of the Interior.

Reprinted courtesy of Tom Ichniowski, ENR

Mr. Ichniowski may be contacted at ichniowskit@enr.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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