Connecting Construction Project Information: Open Technology Databases Improve Project Communication, Collaboration and Visibility

March 14, 2018
Andy Kayhanfar - InEight

The construction industry has been plagued for decades with projects coming in over budget and behind schedule. There are many reasons this happens, but it ultimately comes down to just one thing – a lack of connected information.

Today, gigabytes and even terabytes of data are generated on a project and housed in different systems that do not talk or share information, which creates a closed approach and inhibits collaboration. Data is siloed and only accessible to certain companies, departments or disciplines, which gives each project stakeholder a very limited view into the status of the project as they are making decisions.

To be successful, the construction industry needs to free project data from closed systems. There must be a way to give all project stakeholders access to accurate information within the context of how it applies to the overall project that will empower everyone from owners to engineers to contractors to make timely, fully informed decisions that bring projects in on time and within budget.


The need for deep visibility into project information across systems and stakeholders has given rise in the construction industry to the open technology database. This approach enables project stakeholders to link the data in their existing software systems and connect that information into one centralized location. Project stakeholders can continue to use and maintain the data in their own systems while still feeding the information to the shared environment, which brings together critical project details, provides context for decisions and makes it easier for all parties to collaborate.

Project stakeholders are now able to connect business data related to estimating, cost control, scheduling, contracts, purchasing, accounting and more. This creates a common data set across the project that can be quickly accessed and can easily be put in the hands of project decision makers.

Innovative companies are taking this connectivity to a new level. They see the potential to use 3D models beyond simply the design aspects of a project and bring them into the activities of construction. Innovators are taking all the project information available in the shared environment and connecting it to the 3D model to create a comprehensive view of the project.

Protect Against Design Errors With Owners Protective Professional Indemnity Coverage

March 14, 2018
Joseph Nawa – New Day Underwriting Managers, LLC

Prior to the devastation caused by Hurricanes Harvey, Irma and Maria, the AIA Consensus Construction Forecast had predicted “slower growth for the construction industry for the remainder of 2017 and through 2018.” But, given the hundreds of billions of dollars in damages caused by these horrific events, Mark Zandi, chief economist at Moody's Analytics, estimates a lift to the economy through the rebuilding of these areas. This, of course, is dependent on insurer funds and the amount of aid offered through government sources.

Nonetheless, the process will be costly, timely and exhaustive. Under such circumstances, speed is a necessity. In addition to being drawn into the earliest stages of the project development cycle, the services of construction professionals have merged so intensely that even their “consultative advice” have produced exposures in “collaborative” environments rife with liability.

A challenge for contractors in today’s design/build marketplace is securing professional liability insurance policies that will not only manage the risks associated with their own errors and omissions, but also the problems caused by designers and others contracted to work on the project. However, this too is not very easy. Such policies when purchased by contractors can be exceedingly cost prohibitive.

Mr. Nawa may be contacted at

Trump’s Tariff Is Forcing Homebuilders to Cut Costs

March 14, 2018
Jen Skerritt - Bloomberg

For the past 18 months, Eddie Martin has been trying to find ways to keep the affordable homes he builds, well, affordable.

About 40 percent of the Texas homebuilder’s framing lumber comes from Canada. The Trump administration slapped punitive tariffs on Canadian softwood timber last year, claiming the industry is unfairly subsidized. The move has driven lumber prices to near record highs. Tilson Home Corp., where Martin is president, has so far refrained from passing on the added costs to homebuyers. To do that, it’s cut back the number of home plans it offers and is considering swapping pricier fir for cheaper Southern yellow pine, even though its tendency to bow in the Texas humidity makes it more difficult for construction crews to work with.

New York Court Enforces Construction Management Exclusion

March 14, 2018
Traub Lieberman Straus & Shrewsberry LLP

In its recent decision in Houston Cas. Co. v. Cavan Corp. of NY, Inc., 2018 N.Y. App. Div. LEXIS 1138 (N.Y. 1st Dep’t Feb. 20, 2018), a New York appellate court had occasion to consider the application of a construction management exclusion in a general liability policy.

Buffett’s $11 Million Beach House Is Still on the Market

February 28, 2018
Noah Buhayar – Bloomberg

Warren Buffett auctions a lunch date for charity every year, and the winning bid usually stretches to seven figures. He twice sold his used cars to fans for multiples of their Kelly Blue Book value. Someone once even paid more than $200,000 to purchase his old wallet. (It had a stock tip inside.) For those who venerate one of the world’s best investors, money is usually no object when buying a piece of the legend.

A year ago, Buffett put his vacation home in Emerald Bay, a gated enclave next to Laguna Beach, Calif., up for sale. He bought the property in 1971 at the urging of his first wife, Susan, for $150,000—the equivalent of a bit less than $1 million today. At the time, he didn’t think of it much as an investment, he told the Wall Street Journal last year. Laguna was less developed back then, more surfer-and-hippie paradise than multimillionaire’s haunt. The couple and their family often spent summers at the home, as well as time around Christmas, when Buffett would hole up in the master bedroom working on his closely followed annual letter to Berkshire Hathaway Inc. shareholders.

New Ideas On How to Cope With Lawsuit Discovery

February 28, 2018
Kenneth Rubinstein – ENR

For better or worse, dispute resolution is a necessary part of construction. In theory, the two sides should be able to quickly and efficiently present their claims to a neutral third party (a judge or arbitrator) who then decides a fair and equitable outcome based on the facts, the parties’ contract and the applicable law. In reality, however, document discovery in the age of email and electronic documents has caused the cost of dispute resolution to skyrocket to the point where some believe that it is not cost effective to contest any but the largest issues.

Mr. Rubinstein may be contacted at

What Types of “Damages Claims” Survive a Trustee’s Sale?

February 28, 2018
Ben Reeves – Real Estate Litigation blog / Snell & Wilmer


Arizona’s trustee’s sale statutory scheme provides for the waiver of all defenses and objections to a trustee’s sale that: (i) are not raised prior to the sale, and (ii) do not result in an injunction against the sale going forward. See A.R.S. § 33-811(C). In other words, if you have an objection to a trustee’s sale, you must seek and obtain an injunction prior to the sale or your objection will be waived.

Arizona’s Court of Appeals previously held that notwithstanding this statutory waiver, “common law” defenses to repayment of the debt survive a non-judicial foreclosure even in the absence of an injunction prior to the sale. See Morgan AZ Financial, L.L.C. v. Gotses, 235 Ariz. 21, 326 P.3d 288 (Ct. App. 2014). Our analysis of the Morgan decision can be found here.

In Zubia v. Shapiro, 243 Ariz. 412, 408 P.3d 1248 (2018), the Arizona Supreme Court revisited the issue of what claims survive a trustee’s sale, and clarified that if a person fails to enjoin a trustee’s sale prior to its occurrence, then that person waives any and all damages claims dependent upon a trustee’s sale. That person does not, however, waive damages claims that are independent of the sale. Thus, determining what types of claims are “dependent” versus “independent” of a trustee’s sale is of critical importance to lenders and borrowers alike.

Mr. Reeves may be contacted at

UK's Biggest Construction Show Bans 'Promo Girls'

February 28, 2018
Debra K. Rubin - ENR

The UK Construction Week megashow, set to attract 35,000 attendees and more than 670 exhibitors October 9-11 in Birmingham, England, released a new "code of conduct" for exhibitors, banning the use of "promo girls" and stressing “equality, diversity and inclusion" in marketing, event organizers announced Feb. 12.

Ms. Rubin may be contacted at

Claim for Punitive Damages Against Agent Should Go to Jury

February 28, 2018
Tred R. Eyerly – Insurance Law Hawaii

The Hawaii Intermediate Court of Appeals reversed the trial court's granting the insurance agent's Motion for Judgment as a Matter of Law on the insured's claim for punitive damages. Fuche Corporation, Inc. v. Leung, et al., 2018 Haw. App. LEXIS 37 (Haw. App. LEXIS Feb. 8, 2018).

Fuche Corporation sued its insurance agents, Bill Hin Bi Leung and Noguchi & Associates, for malpractice and breach of contract for their failure to procure coverage for water damage arising from flooding incidents which occurred from December 1, 2004 through November 17, 2005 at the insured's restaurant. After the first flooding incident in December 2004, Fuche Corporation notified Leung, who informed Fuche Corporation that the flooding incident was not covered by his policy and that coverage could not be provided until the policy was renewed in September 2005. After a third flooding incident at the restaurant on September 4, 2005, Fuche Corporation reported the flood to Leung and told Leung to add the flood coverage when Leung renewed the policy.

Mr. Eyerly may be contacted at

Keeping Up With Fast-moving FAA Drone Regulations

February 28, 2018
Dick Zhang – Construction Executive Magazine

One of the biggest changes in recent years relating to commercial drone regulations has been FAA rule Part 107. Prior to 107, drone pilots were required to hold a current, manned aircraft pilot certificate, and had to pass a written, practical and oral exam to earn that credential. After 107 came into effect, a drone pilot was only required to pass a written exam to earn this commercial drone license.

The majority of people working at construction companies who take the Part 107 exam don’t have any type of aviation background, so it’s recommended that they give themselves at least two hours of study a day over two weeks to prepare for the exam. This commitment allows enough time for the student to both master any prepared test materials as well as do any additional research when necessary. The Part 107 certification is good for 24 months. While the FAA hasn’t posted anything about a recertification process yet, it will need to do so soon because everyone who took the exam when it was available in September 2016 will need to be recertified by August 2018.

Mr. Zhang may be contacted at

Owner Bankruptcy: What’s a Contractor to Do?

February 28, 2018
Troy R. Covington and Stephen M. Parham - Construction Executive Magazine

Bankruptcy of the owner or developer of a real estate construction project can be very unsettling to contractors. But a declaration of bankruptcy by the developer, in and of itself, does not constitute a breach of contract such that the contractor can stop working. Contract provisions providing that the contract is terminated if a party becomes insolvent or files for bankruptcy are generally unenforceable.
Partially-performed construction contracts are executory contracts, meaning that the obligations of the parties to the contract have not yet been fully performed. The Bankruptcy Code allows a bankruptcy trustee (in a Chapter 7 dissolution case) or the debtor-in-possession (in a Chapter 11 reorganization case) either to assume or to reject an executory contract. A debtor-in-possession has until the time of the confirmation of its plan of reorganization to decide if it will assume or reject the contract. The contractor may ask the bankruptcy court to require the debtor-in-possession to make a decision on the contract sooner, but the court will most likely give the debtor-in-possession a fair amount of time to make the decision.

Reprinted courtesy of Troy R. Covington and Stephen M. Parham, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Covington may be contacted at
Mr. Parham may be contacted at

Lorman Live Webinar: AIA Documents B-Series: Agreement Between Owner and Architect

February 28, 2018
Laura Parsons - CDJ STAFF

Earn AIA, CLE, or ENG Credits while learning about the changes to AIA’s Owner- Architect Agreements, AIA Forms, and the most common negotiated changes to AIA’s Owner-Architect Agreements. This one-day live webinar is being taught by Timothy R. Conway, a founding partner of Conway & Mrowiec.

March 8, 2018
Live Webinar

Administration Seeks To Build New FBI HQ on Current D.C. Site

February 28, 2018
Tom Ichniowski – ENR

A Senate committee plans to examine a new $3.3-billion Trump administration proposal to demolish the Federal Bureau of Investigation's worn, outmoded headquarters in downtown Washington, D.C., and construct a new facility on that site.

Mr. Ichniowski may be contacted at

Loss of Use From Allegedly Improper Drainage System Triggers Defense Under CGL Policy

February 28, 2018
Katherine E. Miller and Michael S. Levine – Hunton Insurance Recovery Blog

The Eleventh Circuit, in Mid-Continent Casualty Co. v. Adams Homes of Northwest Florida, Inc., No. 17-12660, 2018 WL 834896, at * 3-4 (11th Cir. Feb. 13, 2018) (per curiam), recently held under Florida law that a homebuilder’s alleged failure to implement a proper drainage system that allowed for neighborhood flooding triggered a general liability insurer’s duty to defend because the allegations involved a potentially covered loss of use of covered property.

Reprinted courtesy of Katherine E. Miller, Hunton & Williams and Michael S. Levine, Hunton & Williams
Ms. Miller may be contacted at
Mr. Levine may be contacted at

Construction Is Holding Back the Economy

February 28, 2018
Noah Smith - Bloomberg

Changes in contracts and rules could make the sector a lot more efficient.

The question of whether to prioritize jobs or economic efficiency is always difficult. Nowhere is this more of a dilemma than in the construction industry.

In a world of rapid technological disruption, construction is a rock of solidity to which many blue-collar workers can cling. The industry still employs about 7 million workers in the U.S.

The job doesn’t change that much from decade to decade. It’s a big broad occupation, unlike social-media marketing or other new niche jobs, so it allows working-class people to minimize the time and effort they spend building for a career. And workers get trained on the job, without years of college.

What’s more, construction workers are mostly male. To the degree this is a result of sexism, that’s bad. But it also means that the construction industry employs lots of men, at a time when they haven’t been doing so well in the jobs department.

NY Court Holds Excess Liability Coverage Could Never be Triggered Where Employers’ Liability Policy Provided Unlimited Insurance Coverage

February 28, 2018
Theresa A. Guertin and Samantha M. Martino - SDV Blog

In a potentially significant development in New York insurance law, a recent appellate level decision held that an excess liability policy was not obligated to provide coverage where the underlying employer’s liability policy provided unlimited coverage pursuant to New York regulations.

The Arthur Vincent & Sons Construction, Inc. v. Century Surety Insurance Co.1 case arose out of an underlying wrongful death claim. Fordham University hired Arthur Vincent and Sons Construction, Inc. (“AVSC”) to install a new roof on its Lewis Calder Center. As is typical of most construction contracts, AVSC agreed to indemnify the University against any claims arising out of its negligence, and to name the University as an additional insured on its commercial general liability policy. AVSC was insured by three policies: (1) a worker’s compensation and employer’s liability policy issued by Commerce and Industry Insur¬ance Company (“CIIC”); (2) a primary CGL policy issued by Century Surety Insurance Company (“Century”); and (3) an excess liability policy issued by Admiral Insurance Company (“Admiral”).

Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita, P.C. and Samantha M. Martino, Saxe Doernberger & Vita, P.C.
Ms. Guertin may be contacted at
Ms. Martino may be contacted at

Potential Pitfalls Under the Contract Disputes Act for Federal Government Contractors

February 28, 2018
Sarah K. Carpenter – Smith Currie Publications

The Contract Disputes Act (CDA) governs monetary and non-monetary disputes arising out of contracts or implied-in-fact contracts between the federal government and contractors. Because the CDA is an exclusive remedy, it is important that contractors be wary of the many pitfalls that may be encountered by a contractor seeking to assert a claim against the government under the CDA.

The pitfalls faced by a contractor under the CDA can arise before a contractor becomes aware of a potential claim. Pursuant to the Federal Acquisition Regulation (FAR) § 43.204(c), a contracting officer should include in any supplemental agreement, including any change order, a Contractor’s Statement of Release which requires a contractor to execute a broad release of the government from any and all liability under the contract. As a result of this FAR provision, in executing a routine change order, a contractor may inadvertently release its right to pursue a potential claim under the CDA. A contractor should always review any release language prior to executing a supplemental agreement or change order with the government.

Ms. Carpenter may be contacted at

A Good Examination of Fraud, Contract and Negligence Per Se

February 28, 2018
Christopher G. Hill – Construction Law Musings

I have spoken on several occasions here at Construction Law Musings about the interplay (or lack thereof) between fraud and contract as it relates to construction in Virginia. The general rule is that fraud and contract claims don’t mix and a fraud claim in the face of a contractual one is likely to be dismissed. However, there are exceptions to this rule as there are to just about every legal rule (we construction lawyers would be out of a job without them).

A good examination of the interplay between fraud and contract was set out by the Eastern District of Virginia federal court in Zuberi et al v. Hirezi et al. In that case the Zuberis purchased a home from the Hirezis and later filed suit alleging that the Hirezis concealed serious structural defects that made the house uninhabitable and unsellable. Among the many claims by the Zuberis were those fro fraud, fraudulent inducement, constructive fraud, negligence per se, violation of the Virginia Consumer Protection Act, and civil conspiracy. In short, they were out for blood.

Mr. Hill may be contacted at

Ninth Circuit: Speculative Injuries Do Not Confer Article III Standing

February 28, 2018
Omar Parra and Lawrence S. Zucker II – Publications & Insights

As Dwight Schrute of hit NBC show “The Office” said, “identity theft is not a joke, Jim! Millions of families suffer every year!” In response, Congress has passed a variety of legislation over the years aimed at curbing identity theft. One such piece of legislation, the Fair Credit Reporting Act (“FCRA”), as amended by corollary acts, prohibits the printing of more than the last 5 digits of the credit card number or the credit card number’s expiration date on any sales receipt. Anyone who “willfully fails to comply with [the requirements] is liable to that consumer” for statutory or actual damages, attorney’s fees and costs, and potential punitive damages. But is a statutory violation of the FCRA alone a sufficient injury to confer Article III standing? No, says the Ninth Circuit.

Reprinted courtesy of Omar Parra, Haight, Brown & Bonesteel LLP and Lawrence S. Zucker II , Haight, Brown & Bonesteel LLP
Mr. Parra may be contacted at
Mr. Zucker may be contacted at

U.S. Pending Home Sales Gauge Falls to Lowest Since 2014

February 28, 2018
Sho Chandra – ENR

A gauge of contracts to purchase previously-owned U.S. homes unexpectedly declined in January to a more than three-year low, reflecting a shortage of inventories and rising mortgage rates, according to data released Wednesday from the National Association of Realtors in Washington.


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