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Does South Carolina law support application of the "at issue" exception to the attorney-client privilege such that a party may waive the privilege by denying liability in its answer?

South Carolina Supreme Court Asked Whether Attorney-Client Privilege Waived When Insurer Denies Bad Faith

Tuesday, September 18, 2018 — Tred R. Eyerly - Insurance Law Hawaii

The Fourth Circuit certified the following question to the South Carolina Supreme Court: Does South Carolina law support application of the "at issue" exception to the attorney-client privilege such that a party may waive the privilege by denying liability in its answer? In Re: Mt. Hawley Ins. Co., 2018 U.S. App. LEXIS 17910 (4th Cir. June 28, 2018).

Mt. Hawley insured Contravest Construction Company under an excess commercial liability policy from July 21, 2003 to July 21, 2007. During this period, Contravest constructed a development in South Carolina. In 2011, the Owners Association sued Contravest for alleged defective construction. Mt. Hawley denied tenders to defend or indemnify. Contravest ultimately settled the case.

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

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

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Construction worker caution sign retro illustration

A recent case provides a grim reminder that the same statutes that giveth court access can also taketh away.

No Bond, No Recovery: WA Contractors Must Comply With WA Statutory Requirements Or Risk Being Barred From Recovery If Their Client Refuses To Pay

Tuesday, September 18, 2018 — Joshua Lane - Ahlers Cressman & Sleight PLLC

The risk that a contractor’s client may refuse to pay the full contract balance is a day-to-day reality for every contractor. That risk – and the stress it causes in the mind of any contractor – is tempered by the knowledge that Washington statutes provide contractors with ready access to the courts to file a lawsuit and be fully compensated for the work performed. But a recent case provides a grim reminder that the same statutes that giveth court access can also taketh away.

Washington’s Contractor Registration Act (“WCRA”)[1] requires every contractor engaging or offering to engage in services in Washington to register with the Department of Labor and Industries (”L&I”). In order to sue to collect compensation for work or to enforce a contract, a contractor must prove that he/she “was a duly registered contractor and held a current and valid certificate of registration at the time he or she contracted for the performance of such work or entered into such contract.”[2] In order to conclude that a contractor has substantially comply with these requirements, a court must find that:

(1) The department has on file the information required by RCW 18.27.030; (2) the contractor has at all times had in force a current bond or other security as required by RCW 18.27.040; and (3) the contractor has at all times had in force current insurance as required by RCW 18.27.050.[3]

Reprinted courtesy of Joshua Lane, Ahlers Cressman & Sleight PLLC

Mr. Lane may be contacted at joshua.lane@acslawyers.com

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Construction worker smirking while working with wooden beam

Sorenson is a stark reminder that when asking your gardener or anyone to perform work requiring a license to make sure they are in fact properly licensed.

Property Owner Found Liable for Injuries to Worker of Unlicensed Contractor, Again

Monday, September 17, 2018 — Garret Murai - California Construction Law Blog

It’s not like we didn’t warn you.

In Jones v. Sorenson, Case No. C084870 (August 2, 2018), homeowner Danita Sorenson discovered to her chagrin that she had unwittingly become the employer of Mary Jones, who had been hired by Odette Miranda doing business as Designs by Leo to trim some trees, and was liable for Jones’ injuries when Jones fell off a ladder provided by Miranda. “How can this be?” you might ask. The reason, as it turns out, is simple.

Miranda was required to hold a Class D-49 Tree Service Contractor’s license in order to contract with Sorenson to trim her trees, and because Miranda did not hold that license (or, for that matter, any contractor’s license), Sorenson automatically was deemed the employer of Jones under Labor Code Section 2750.5 and, therefore, liable for her injuries.

Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP

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

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Construction Groups Sign Pledge to America’s Workers

September 18, 2018 — Joanna Masterson - Construction Executive

More than 20 prominent companies and associations have signed President Trump’s “Pledge to America’s Workers,” signaling their commitment to creating new opportunities through apprenticeships, work-based learning, continuing education, on-the-job training and reskilling. To date, companies such as Microsoft, Walmart, General Motors, Lockheed Martin and Home Depot have pledged to train more than 3.8 million people for new positions.

Associated Builders and Contractors has committed to educating and developing at least 500,000 construction workers during the next five years. Already, ABC members invest $1.1 billion on workforce development to educate more than 475,000 industry employees annually, and ABC chapters have set up more than 800 apprenticeship, craft training and safety programs across the United States. Yet, there are 500,000 open positions in the construction industry alone. The National Association of Homebuilders, Associated General Contractors and North America’s Building Trades Unions have made pledges as well.

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

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Assignment of Benefits Provision in Homeowner’s Policy is Enforceable

September 18, 2018 — David Adelstein - Florida Construction Legal Updates

When it comes to property insurance claims, particularly those under a homeowner’s insurance policy, an insured will oftentimes assign its benefits under the policy to a restoration contractor. The request for the assignment may likely be prompted by the contractor that does not want to perform the work without the assignment of benefits. The assignment of benefits (also known by the acronym “AOB”) allows the third-party contractor (as the assignee of the insured) to sue the insurer directly for benefits under the policy associated with the restoration work.

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

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Florence's Floods Obscure Damage Inflicted on Carolinas

September 18, 2018 — Mark Niquette, Rachel Adams-Heard, & Olivia Carville - Bloomberg

Record-setting, still-rising floods covering much of eastern North Carolina are preventing companies, regulators and environmental groups from making a comprehensive assessment of damage from Hurricane Florence.

Reprinted courtesy of Bloomberg journalists Mark Niquette, Rachel Adams-Heard and Olivia Carville

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Professor, CLM Litigation Management Institute (LMI) - Fundamentals of Risk Transfer

September 18, 2018 — Michael J. Leahy – Haight Brown & Bonesteel LLP

Professor at the Claims and Litigation Management Alliance Litigation Management Institute (LMI) speaking on the topic, “Fundamentals of Risk Transfer.” Hosted at Loyola Law School in Chicago, LMI is the first certification program specifically designed to provide a comprehensive understanding of the business of litigation management.

October 20th, 2018
Loyola Law School in Chicago
25 E. Pearson St.
Chicago, IL 60611

Mr. Leahy may be contacted at mleahy@hbblaw.com

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timber wood texture

The project has turned out to be a complicated cautionary tale

'Regluing' Oregon State's Showcase for Mass Timber

Monday, September 17, 2018 — Nadine M. Post - Engineering News-Record

The tally of how many defective cross-laminated timber panels need replacement on a $79-million college of forestry building under construction at Oregon State University is almost complete, nearly six months after two layers of a seven-layer CLT floor panel, 30 ft x 4 ft, came unglued and crashed 14 ft from the third to the second floor of the three-story building.

Reprinted courtesy of Nadine M. Post, ENR

Ms. Post may be contacted at postn@enr.com

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Newton cradle shows pinballs colliding

After dismissing certain other arguments, the Court found that Leesburg Building Partners had a good payment defense, denied MBI’s motion to dismiss and declared the lien invalid.

Where Standing, Mechanic’s Liens, and Bankruptcy Collide

Monday, September 17, 2018 — Christopher G. Hill - Construction Law Musings

I have spoken often about mechanic’s liens and the implications of such liens as they relate to bankruptcy here at Construction Law Musings. A recent case out of Loudoun County, Virginia added another wrinkle to this discussion, that of standing and what happens on conveyance of the property and what interest in the property is required to allow a party to seek removal of the mechanic’s lien.

In Leesburg Bldg. P’rs LLC v. Mike Berger Inc. the Loudoun County Circuit Court faced the following scenario. Leesburg Building Partners developed certain condominiums and hired Lansdowne Construction to perform the work as general contractor and paid Landsdowne in full for the work. Lansdowne hired Mike Berger, Inc. (“MBI”) to perform concrete work for the project. Landsdowne didn’t pay MBI approximately $48,000.00 and subsequently filed for bankruptcy. MBI, seeking to protect it’s interest in the money it was owed, recorded a mechanic’s lien on the property. Leesburg Building Partners filed an action to declare the lien invalid and have it removed from the property based upon its “payment defense” and the fact that it had paid Landsdowne in full. A relatively simple scenario and one that has been discussed before here at Musings. Not so fast. . .

Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill

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

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Winner holding medal up to sunset

Ten of the firm's Newport Beach attorneys were recently recognized in their respective practice areas in The Best Lawyers in America© 2019.

Ten Newmeyer & Dillion Attorneys Selected to the Best Lawyers in America© 2019

Monday, September 17, 2018 — Newmeyer & Dillion

NEWPORT BEACH, Calif. – AUGUST 15, 2018 – Prominent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that ten of the firm's Newport Beach attorneys were recently recognized in their respective practice areas in The Best Lawyers in America© 2019.

Attorneys named to The Best Lawyers in America, include:

Jason M. Caruso
Personal Injury Litigation - Plaintiffs
Product Liability Litigation – Plaintiffs

Michael S. Cucchissi
Real Estate Law

Jeffrey M. Dennis
Insurance Law

Gregory L. Dillion
Commercial Litigation
Construction Law
Insurance Law
Litigation - Construction
Litigation - Real Estate

Joseph A. Ferrentino
Litigation - Construction
Litigation - Real Estate

Thomas F. Newmeyer
Commercial Litigation
Litigation - Real Estate

John O'Hara
Litigation - Construction

Bonnie T. Roadarmel
Insurance Law

Jane Samson
Real Estate Law

Carol Sherman Zaist
Commercial Litigation

Best Lawyers is the oldest peer-review publication within the legal profession with a history of over 35 years. Attorneys are selected through exhaustive peer-review surveys in which leading lawyers confidentially evaluate their professional peers. Their listings are published in 75 countries worldwide and are recognized for their reliable and unbiased selections.

Newmeyer & Dillion is immensely proud of these lawyers and looks forward to their continued contributions to the firm, and the Orange County community as a whole.

About Newmeyer & Dillion

For almost 35 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 cybersecurity and privacy, corporate, employment, real estate, construction, insurance law and trial work, 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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CONSTRUCTION DEFECT NEWS
gathering of 3d characters showing community

Colorado’s Common Interest Ownership Act (“CCIOA”), C.R.S. § 38-33.3-101 et seq., sets forth the manner in which common-interest communities, and their related associations, must be established.

Wait, You Want An HOA?! Restricting Implied Common-Interest Communities

Monday, September 17, 2018 — Neil McConomy - Snell & Wilmer Real Estate Litigation Blog

While the butt of many jokes and a thorn in the side of some property owners, homeowners associations (“HOAs”) serve the vital function of collecting and disbursing funds to care for and maintain common areas of residential developments. Without HOAs, neighborhood open spaces, parks, and other amenities risk falling into disrepair through a type of tragedy of the commons, wherein residents use such amenities but refuse to subsidize care and maintenance for these common areas believing someone else will pony-up the funds. HOAs, when properly organized and managed, avoid this problem by ensuring everyone pays their fair shares for the common areas. Colorado’s Common Interest Ownership Act (“CCIOA”), C.R.S. § 38-33.3-101 et seq., sets forth the manner in which such common-interest communities, and their related associations, must be established.

Earlier this summer, the Colorado Supreme Court issued an opinion limiting the application of previous case law that allowed for the establishment of common-interest communities (and their related HOAs) by implication. See McMullin v. Hauer, 420 P.3d 271 (Colo. 2018). Prior to McMullin, Colorado courts had been increasing the number of factual scenarios implying the creation of common-interest communities under CCIOA. See e.g., Evergreen Highlands Assoc. v. West, 73 P.3d 1 (Colo. 2003) (finding an implied obligation of landowners to fund a pre-existing HOA’s obligations); DeJean v. Grosz, 412 P.3d 733 (Colo. App. 2015) (finding an implied right of a homeowner to found an HOA after the developer filed a declaration expressing an intent to form one but ultimately failed to do so); and Hiwan Homeowners Assoc. v. Knotts, 215 P.3d 1271 (Colo. App. 2009) (finding the existence of an HOA despite no common property existing within the development). The McMullin opinion highlights the importance of strict compliance with CCIOA to preserve common areas in a development, ensure the ability to fund maintenance of such areas, and avoid future litigation.

Reprinted courtesy of Neil McConomy, Snell & Wilmer

Mr. McConomy may be contacted at nmcconomy@swlaw.com

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handshake of business partners

Pillsbury attorneys Mike Rizzo, Glenn Sweatt and Kevin Massoudi discuss comments from the Department of Defense as well as recent good faith and fair dealing court decisions that point to and encourage improved contractor/government relationships.

Cooperation and Collaboration With Government May Be on the Horizon

Monday, September 17, 2018 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel

In Is the Pendulum Swinging on Agency and Government Contractor Cooperation?, Pillsbury attorneys Mike Rizzo, Glenn Sweatt and Kevin Massoudi discuss comments from the Department of Defense as well as recent good faith and fair dealing court decisions that point to and encourage improved contractor/government relationships. Their key takeaways include

  • Government officials are actively encouraging collaboration with, and less antagonism of, industry contractors.
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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Lawyer talking to Judge Illustration

The employer’s liability exclusion excludes coverage for bodily injury to an employee.

Liability Insurer Precluded from Intervening in Insured’s Lawsuit

Monday, September 17, 2018 — David Adelstein - Florida Construction Legal Updates

There are cases where I honestly do no fully understand the insurer’s position because it cannot have its cake and eat it too. The recent opinion in Houston Specialty Insurance Company v. Vaughn, 43 Fla. L. Weekly D1828a (Fla. 2d DCA 2018) is one of those cases because on one hand it tried hard to disclaim coverage and on the other hand tried to intervene in the underlying suit where it was not a named party.

This case dealt with a personal injury dispute where a laborer for a pressure washing company fell off of a roof and became a paraplegic. The injured person sued the pressure washing company and its representatives. The company and representatives tendered the case to its general liability insurer and the insurer–although it provided a defense under a reservation of rights—filed a separate action for declaratory relief based on an exclusion in the general liability policy that excluded coverage for the pressure washing company’s employees (because the general liability policy is not a workers compensation policy). This is known as the employer’s liability exclusion that excludes coverage for bodily injury to an employee. The insurer’s declaratory relief action sought a declaration that there was no coverage because the injured laborer was an employee of the pressure washing company. The pressure washing company claimed he was an independent contractor, in which the policy did provide limited coverage pursuant to an endorsement.

Reprinted courtesy of David Adelstein, Kirwin Norris

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

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Across from the LA Coliseum, Construction of Massive Honda Dealership

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CONSTRUCTION DEFECT NEWS
businessman at desk covered with smart technology objects

A convergent set of technologies will soon radically change how the construction industry builds and what it builds with.

The Four Forces That Will Take on Concrete and Make Construction Smart

Monday, September 17, 2018 — Massimiliano Moruzzi - Construction Executive

When it comes to building a bridge, what prevents it from having the most enduring and sustainable life span? What is its worst enemy? The answer is, simply, the bridge itself—its own weight.

Built with today’s construction processes, bridges and buildings are so overly massed with energy and material that they’re inherently unsustainable.

While concrete is quite literally one of the foundations of modern construction, it’s not the best building material. It’s sensitive to pollution. It cracks, stainsand collapses in reaction to rain and carbon dioxide. It’s a dead weight: Take San Francisco’s sinking, leaning Millennium Tower as an example.

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



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Construction worker in vehicle

The Court considered whether immunity is waived under Colorado’s Governmental Immunity Act (“CGIA”), pursuant to section C.R.S. § 24-10-106(1)(f), in situations where the public entity hired an independent contractor to perform the work.

Governmental Immunity Waived for Independent Contractor - Lopez v. City of Grand Junction

Monday, September 17, 2018 — Frank Ingham - Colorado Construction Litigation Blog

On July 12, 2018, the Colorado Court of Appeals announced its decision in Lopez v. City of Grand Junction, 2018 WL 3384674 (Colo. App. 2018). The Court considered whether immunity is waived under Colorado’s Governmental Immunity Act (“CGIA”), pursuant to section C.R.S. § 24-10-106(1)(f), in situations where the public entity hired an independent contractor to perform the work. The Court held that if the public entity would have been liable under the CGIA for the conduct that caused the injury, had it performed the work itself, then it is liable for the work performed by its independent contractor.

Reprinted courtesy of Frank Ingham, Higgins Hopkins McClain & Roswell, LLC

Mr. Ingham may be contacted at ingham@hhmrlaw.com

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Algae in Ocean

“This year is historic,” Caloosahatchee Waterkeeper John Cassani says. “I’ve worked on the river for 40 years; I’ve never seen anything like this, where 65 miles of the river has cyanobacteria blooms in one stage or another.”

Florida Project Could Help Address Runoff, Algae Blooms

Monday, September 17, 2018 — Thomas F. Armistead - Engineering News-Record

Heavy rainfall this spring overwhelmed Everglades infrastructure and required operators to discharge nutrient-laden water from Lake Okeechobee to South Florida’s east and west coasts. The resulting toxic algal blooms are fouling Florida’s coast, killing wildlife, driving away vacationers and local beachgoers and threatening public health.

Reprinted courtesy of Thomas F. Armistead, ENR

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

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two bakery shop building owners

The project created process descriptions, an exemplary maintenance user interface, and use cases of practical implementations.

How BIM Can Serve Building Owners

Monday, September 17, 2018 — Aarni Heiskanen - AEC Business

Building Information Models typically end their active life after the construction phase. An experimental project was initiated to find out whether and how they can serve owners throughout the life cycle of a building.

Gradia, the Jyväskylä Educational Consortium, provides education to students of all ages in central Finland. It has around 25,000 students, a staff of 1,100, and buildings with a total floor area of 150,000 square meters. Gradia and a team from Gravicon and XRM Finland carried out a government-supported KIRA-digi experimentation project in 2017 on the use of BIMs for building maintenance and repairs.

Reprinted courtesy of Aarni Heiskanen, AEC Business

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

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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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