Read Before You Sign: Claim Waivers in Project Documents

Business person signing document

Taking time to read the specific language in your project documents is important.

July 6, 2020
William E. Underwood - ConsensusDocs

Not all claim waivers are appropriately titled “Waiver of Claims.” In fact, claim waivers can be found “hiding” without any advertisement or fanfare in a number of project documents, including change orders and applications for payment. So although getting work quickly approved and paid for is important, taking time to read the specific language in your project documents is just as important. Failure to pay close attention to this language could result in the waiver of key, unresolved project claims.

Further, and although it should go without saying, it is also just as important to read all of the terms of your contract. Important waiver language might not exist on the face of form project documents, but rather might be contained in the general and/or supplemental conditions of your contract and automatically incorporated into your form project documents. And these types of incorporated waivers can be just as enforceable.

So it is critically important to understand what you are signing and the implications it might have on future claims. This article will explore some of the common types of claim waivers that can be found in project documents so that you are better positioned to avoid inadvertently waiving claims in the future.

Mr. Underwood may be contacted at wunderwood@joneswalker.com


Pillsbury Insights – Navigating the Real Estate Market During COVID-19

Young couple sitting in front of wooden house

The impact of COVID-19 on the real estate market has not been felt evenly.

July 6, 2020
Caroline A. Harcourt - Gravel2Gavel Construction & Real Estate Blog

Until COVID-19 officially took hold in the U.S. in March of 2020, the U.S. real estate market was active, even robust. Starting in March, however, the possible scope of the pandemic and the sudden imposition of stay-at-home orders resulted in deal volume falling precipitously—with sales, leasing and lending transactions being put on temporary “wait and see” pause or terminated altogether.

The impact of COVID-19 on the real estate market has not been felt evenly. Hotels have been hit extremely hard, with many hotels shuttered altogether and many others only open at staggeringly low occupancy rates. Retail likewise has been virtually shut down in various parts of the country—with retailers across the country asking for rental forbearance or lease surrenders and others, such as J Crew, Neiman Marcus and Pier 1, pursuing bankruptcy reorganizations or liquidation. Multifamily has also been relatively hard hit, and landlords are having to navigate a web of local, state, and even federal regulations regarding tenant protections, such as non-eviction orders. The least affected sector so far has been office—however employers and office space users who are becoming facile with zoom and “working at home” may well re-examine their usage of office space—and it is within the realm of possibility to imagine that even this sector may come under pressure over time.

Ms. Harcourt may be contacted at caroline.harcourt@pillsburylaw.com


Balestreri Potocki & Holmes Attorneys Named 2020 Super Lawyers and Rising Star

Gold stars on blue background

Several attorneys from the law firm of Balestreri Potocki & Holmes have been selected by Super Lawyers.

July 6, 2020
Balestreri Potocki & Holmes

The law firm of Balestreri Potocki & Holmes is pleased to announce that Shareholders Thomas A. Balestreri, Jr. and Joseph P. Potocki have been selected as 2020 Super Lawyers and Associate Robin H. Smith has been named a 2020 Rising Star.

Each year no more than 5 percent of the lawyers in the state are selected to receive the honor of being included in the Super Lawyers list and no more than 2.5 percent of the lawyers are selected to the Rising Stars list.

Balestreri has been selected to the Super Lawyers list in the areas of Construction Litigation. Balestreri has dedicated most of his 30 plus years in practice to the representation of developers, property owners, and general contractors in litigation, negotiations, and risk management. A seasoned trial lawyer, he has tried a number of high exposure cases with great success.

Selected as a Super Lawyer in the area of Construction Litigation, Potocki’s practice concentrates on litigation, transactional matters and construction contract drafting and negotiation. His extensive litigation experience involves high-value disputes relating to a wide variety of issues in the real estate, business and construction arenas.

Smith has been named a Rising Star by Super Lawyers in the area of Civil Litigation. In her varied litigation practice, Smith represents individuals and business entities in complex catastrophic personal injury matters. She also represents employers in labor and employment matters and a variety of businesses, including automobile dealers, in breach of contract, unfair competition, unfair business practices, defamation, and consumer claims.

Super Lawyers, a Thompson Reuters business, 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 annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Balestreri Potocki & Holmes is headquartered in San Diego, California. The firm provides comprehensive counsel to large and small companies across a wide range of established and emerging industries. Balestreri Potocki & Holmes is located in downtown San Diego at 401 B Street, Suite 1470. More information about the firm can be found at: www.bph-law.com.


Five Reasons to Hire Older Workers—and How to Keep Them

Angry senior couple having argument

There are numerous benefits to hiring older workers.

July 6, 2020
Charlie Kimmel - Construction Executive

The economic downturn in 2008 created a black hole of talent in the construction industry. As a result, finding project managers between the ages of 28 and 33 and superintendents between the ages of 23 and 30 in today’s market can be difficult, if not impossible in some cases. To make up for this gap in available talent, construction executives are going to have to look to project managers and superintendents in the 58-to-64 age range. Fortunately, there are numerous benefits to hiring older workers.

1. OLDER WORKERS WANT TO MENTOR THE NEXT GENERATION.

This is their most significant benefit: the older generation truly enjoys teaching younger construction workers and passing on skills and knowledge, while also getting to do a job they’re good at. This means investing in one experienced worker today can pay dividends for the quality of a company’s workforce for decades to come, as mentorship programs have proven to increase the skills and loyalty of younger workers. If a company wants someone with deep knowledge and broad experience to help mold the next generation of construction workers, they should hire an older employee.

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


AGC Construction Safety, Health & Environmental Virtual Conference

June 29, 2020
Beverley BevenFlorez – CDJ Staff

The Associated General Contractors of America (AGC) presents an event “ to hone in on the most critical safety, health and environmental compliance and risk issues impacting the business of construction.” This three-day virtual conference will provide “informative presentations, panel discussions and interactive breakouts.” Attendees will have opportunities for Q&A with the speakers and learn about exhibitors.

July 14-16, 2020
Virtual Event


Paycheck Protection Program Forgiveness Requirements Adjusted

Pay Day words floating in cereal

The PPP Flexibility Act adjusted the forgiveness requirements for PPP loans.

June 29, 2020
Jacob W. Scott - Smith Currie

On June 5, 2020, the President signed into law the Paycheck Protection Program Flexibility Act of 2020, amending portions of the Paycheck Protection Program (“PPP”). Most importantly, the PPP Flexibility Act adjusted the forgiveness requirements for PPP loans.

The CARES Act allowed borrowers to apply for forgiveness of loan amounts used for payroll and other covered costs during an eight-week period beginning on the date of origination, or by June 30, 2020, whichever came first. The CARES Act also allowed borrowers to use the loan funds by June 30 to restore employee and payroll levels that had been reduced as a result of COVID-19. The Small Business Administration instructed borrowers that at least 75% of the loan funds had to be used to cover payroll costs during the covered period to be eligible for forgiveness.

Mr. Scott may be contacted at jwscott@smithcurrie.com


Accident Outside of Insured Location Not Covered

June 29, 2020
Tred R. Eyerly - Insurance Law Hawaii

The federal district court found there was no coverage for injury caused by an explosion at a recycling facility. Mountain West Farm Bur. Mut. Ins. Co. v. Jackson, et al., 2019 U.S. Dist. LEXIS 202319 (E.D. Wash. Nov. 21, 2019).

Tim and Roberta Jackson owned Ibex Construction, located in Spokane, Washington. The Jacksons contracted with Reinland Auctioneers to clear the Ibex Construction property of scrap metal and old equipment. Reinland contracted with Gordon Beck to remove certain pieces of scrap metal from the property. Beck loaded the bigger pieces of scrap metal, including a 55-gallon unmarked metal tank, into a dump truck. After the truck was driven to the recycling facility, the metal, including the unmarked tank, was loaded into a crusher. When the tank was crushed, it exploded and chlorine gas was released, causing considerable injuries and death to nearby persons working at the recycling facility.

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


Sometimes You Just Need to Call it a Day: Court Finds That Contractor Not Entitled to Recover Costs After Public Works Contract is Invalidated

Two businessmen across from table with contracts

Garret Murai analyzes the case Hensel Phelps Construction Co. v. California Department of Corrections and Rehabilitation.

June 29, 2020
Garret Murai - California Construction Law Blog

January was a tough month in the courts for Hensel Phelps Construction Company. Hot off the heels of Hensel Phelps Construction Co. v. Superior Court, a case concerning the 10-year statute of limitations under Civil Code section 941, comes Hensel Phelps Construction Co. v. California Department of Corrections and Rehabilitation, Case No. B293427 (January 28, 2020), a bid dispute case . . .

The Tale of a Bid, a Bid Protest, and Two Cases

A. The Bid and Bid Protest

On March 15, 2015, the California Department of Corrections and Rehabilitation (CDCR) issues an Invitation for Bid for the HVAC project at the Ironwood State Prison. The deadline to submit bids was April 30, 2015. Hensel Phelps Construction Co. submitted a timely bid and was determined to be the “apparent low bidder” with a bid of $88,160,000.

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


Insurance Lawyers Recognized by JD Supra 2020 Readers' Choice Awards

Trophy sitting on hill with green background (illustration)

The Readers’ Choice Awards reflect a deep dive into JD Supra 2019 reader data.

June 29, 2020
Timothy Carroll, Anthony Miscioscia & Gus Sara - White and Williams

Congratulations to Anthony Miscioscia, partner and Co-Chair of the Insurance Coverage and Bad Faith Group, and associate Timothy Carroll who have been recognized as top authors in Insurance in the 2020 JD Supra Readers' Choice Awards.

The Readers’ Choice Awards recognize top authors and firms for their thought leadership in key topics read by C-suite executives, in-house counsel, media, and other professionals across the JD Supra platform during 2019.

Additionally, JD Supra recognized Subrogation counsel, Gus Sara’s alert "New Hampshire's Statute of Repose for Improvements to Real Property Does Not Apply to Product Manufacturers" as one of the most popular product liability articles in 2019.

The Readers’ Choice Awards reflect a deep dive into JD Supra 2019 reader data, in which they studied total visibility and engagement among readers across many industries interested in certain defining topics. Along with a top firm in each category, JD Supra also features additional reader data, including the top five most-read articles, popular related topics, total number of authors, and other category-specific information.

Reprinted courtesy of White and Williams LLP attorneys Timothy Carroll, Anthony Miscioscia and Gus Sara
Mr. Carroll may be contacted at carrollt@whiteandwilliams.com
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Mr. Sara may be contacted at sarag@whiteandwilliams.com


A Court-Side Seat: May Brings Federal Appellate Courts Rulings and Executive Orders

Empty stadium seats

Attorney Anthony B. Cavendar summarizes a few interesting new rulings from the federal appellate courts.

June 29, 2020
Anthony B. Cavender - Gravel2Gavel

Here are a few interesting new rulings from the federal appellate courts.

COURT ORDERS

Like a Good Neighbor …?State of Maryland v. EPA
On May 19, 2020, the D.C. Circuit decided a Clean Air Act case involving the use of the “Good Neighbor Provision” of the Act, which is triggered when one state has a complaint about emissions generated in a neighboring upwind state that settle in the downwind state. Here, Maryland and Delaware filed petitions with EPA seeking relief from the impact of emissions from coal-fired power plants that allegedly affect their states’ air quality. EPA largely denied relief, and the court largely upheld the agency’s use and interpretation of the Good Neighbor Provision. The opinion is valuable because of its clear exposition of this complicated policy.

A Volatile Underground IssueWayne Land and Mineral Group v. the Delaware River Basin Commission
Also on May 19, 2020, the U.S. Court of Appeals for the Third Circuit issued a ruling involving the Delaware River Basin Commission. Established in 1961, the Commission oversees and protects the water resources in the Basin. Not long ago, the Executive Director of the Commission, citing a rule of the Commission, imposed very strict limitations on fracking operations in the Basin. This decision has been very controversial with the Third Circuit opining that the Commission’s authority to regulate fracking operations—thought to be a province of state authority—was not clear-cut. In this case, three Pennsylvania state senators filed motions to intervene in the case, but the lower court rejected their request. The Third Circuit has directed the lower court to take another look at their standing to participate in this litigation. This is a volatile issue in Pennsylvania.

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


Contract Provisions That Help Manage Risk on Long-Term Projects

Contract in typewriter

Projects that start under one set of assumptions or conditions can occur or conclude under much different ones.

June 29, 2020
Jason Lambert - Construction Executive

Few things can dampen the thrill and promise of a newly closed construction deal than the realization that it could quickly become a losing proposition for the contractor depending on economic and other conditions. In an era of instant information, constantly adjusting markets and political extremes, projects that start under one set of assumptions or conditions can occur or conclude under much different ones. While no one has a crystal ball, there are contractual provisions that can provide clear guidance in the face of many “what ifs” that can arise in construction.

One of the chief concerns a contractor should have in a project lasting more than a few months is what impact price increases will have on the profitability of the job. On a true cost-plus project, this may be of little concern, but on any project with a limitation on costs or a guaranteed maximum price, contractors should insist on a procedure to revisit the limitation or price if certain conditions change.

This can be as simple as allowing the contractor to receive an upward adjustment in the price if costs increase by more than a certain percentage. It can be as complicated as requiring multiple new bids and disclosures to the property owner, architect or project manager and allowing approval of new suppliers or subcontractors to limit cost increases to the cheapest increase. The protection—and certainty—to the contractor though, comes from having a process in the contract to address cost increases, whether it is simple or complex.

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

Mr. Lambert may be contacted at Jason.lambert@dinsmore.com


U.S. Pending Home Sales Post Record Gain, Exceed All Forecasts

June 29, 2020
Maeve Sheehey – Bloomberg

Contract signings to purchase previously owned U.S. homes surged in May by the most on record as mortgage rates fell and some states began to reopen from coronavirus lockdowns.

The National Association of Realtors’ index of pending home sales increased 44.3% to a three-month high of 99.6, after falling in April to the lowest level in records back to 2001. The median projection in a Bloomberg survey of economists called for a 19.3% gain in May. Even with the outsize advance, the index is below the pre-pandemic high of 111.4, reached in February.


Coverage for Faulty Workmanship Denied

Denied in red

The court found there was no coverage for the insureds' alleged negligent failure to construct a building.

June 29, 2020
Tred R. Eyerly - Insurance Law Hawaii

The court found there was no coverage for the insureds' alleged negligent failure to construct a building. Evanston Ins. Co. v. DCM Contracting, 2020 U.S. Dist. LEXIS 63977 (N.D. Ga. Feb. 28, 2020).

Turning Point Church sued DCM Contracting for faulty workmanship on a construction project. Turning Point sent a demand letter to DCM on August 18, 2017 and filed suit in December. Evanston did not receive notice of Turning Point's claims and the lawsuit until May 15, 2018.

Evanston filed suit for a declaratory judgment and moved for summary judgment. The court first considered the late notice. The policy required notice "as soon as practicable" DCM was also required to provide copies of demands, notices, or legal papers to Evanston. Here, DCM did not give notice to Evanston until nine months after receipt of Turning Point's demand. A phone communication with DCM's agent between August 2017 and May 2018 was insufficient. DCM provided no documents, including the summons and complaint, to the agent. DCM waited five months to forward the underlying lawsuit. This was a breach of the policy.

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


HHMR is pleased to announce that David McLain has been selected as a 2020 Super Lawyer

Two runners crossing finish line

Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas.

June 29, 2020
David M. McLain – Colorado Construction Litigation

David McLain is a founding member of Higgins, Hopkins, McLain & Roswell. Mr. McLain has over 22 years of experience and is well known for his work in the defense of the construction industry, particularly in the area of construction defect litigation. He is a member of the Executive Committee of the CLM Claims College - School of Construction, which is the premier course for insurance, industry, and legal professionals. Law Week Colorado recently named Mr. McLain as the 2019 People’s Choice for Best Construction Defects Lawyer for Defendants.

HHMR is highly regarded for its expertise in construction law and the litigation of construction-related claims, including the defense of large and complex construction defect matters. Our attorneys provide exceptional service to individuals, business owners, and Fortune 500 companies. The firm is experienced in providing legal support throughout trials and alternative dispute resolution such as mediations and arbitrations.

Mr. McLain may be contacted at mclain@hhmrlaw.com


Eliminating Waste in Construction – An Interview with Turner Burton

Businesswoman putting waste into bin illustration

A discussion of waste in construction and how Hoar Construction is on a mission to eliminate it.

June 29, 2020
Aarni Heiskanen - AEC Business

I had the pleasure of interviewing Turner Burton, President of Hoar Construction. We discussed waste in construction and how his company is on a mission to eliminate it.

Can you say a few words about yourself and your company?

I grew up around construction and this company, hearing about the business from both my grandfather and my father. I started working on job sites in high school forming concrete, continued working on projects throughout college, and since graduating from college, I’ve taken on different roles in the company to ensure I understand all aspects of the business.

Hoar Construction was founded 80 years ago, and throughout our history, we’ve been committed to learning from every project to improve our processes and deliver the best building experience possible for our clients and partners. But it’s the relentless pursuit of improvement that really sets us apart as builders – to always strive to be the best and do the right thing for our customers and partners. There’s something to be said for setting a goal that you’ll always be working toward. It fosters hard work, collaboration, and productive effort. If we’re always working to find a better way, then we will always be improving. That effort drives better results for our owners and everyone we work with. Essentially, we’re always working toward something. Always improving. Always in process.

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


Collapse of Underground Storage Cave Not Covered

Water in cave

Interstate operated an underground storage facility in a cave that formerly housed a limestone mine.

June 29, 2020
Tred R. Eyerly - Insurance Law Hawaii

The Eighth Circuit faced unusual facts in determining that the collapse of a cave serving as a storage facility was not covered under the policy. Westchester Surplus Lines Ins. Co. v. Interstate Underground Warehouse & Storage, Inc., 2020 U. S. App. LEXIS 83 8th Cir. Jan. 3, 2020).

Interstate operated an underground storage facility in a cave that formerly housed a limestone mine. In 2014, Interstate experienced a series of "dome-outs," in which layers of rock destabilized, detached, and collapsed from above into the cave.

Interstate's policy with Westchester included coverage for collapse of a "building" caused by "building decay." Westchester sought a declaratory judgment that Interstate's loss was not covered. The district court granted summary judgment for Westchester because the cause of the loss was not "building decay" within the meaning of the primary policy.

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


Reminder: Just Being Incorporated Isn’t Enough

Post its on cork board

Registering with your state and getting “Inc.” or “LLC” added to a nifty construction company name is not enough.

June 29, 2020
Christopher G. Hill - Construction Law Musings

I have discussed why contractors need to incorporate previously here at Construction Law Musings. Among the many reasons to incorporate are possible tax benefits and the protection of personal assets (like your house and your dog) from judgement and collection actions. This latter reason is key in the construction world in which Murphy can look like an optimist and projects have so many moving parts that something is likely to go wrong.

The reason incorporation works as at least a partial shield is that the company and the owners are separate “people” or entities from a legal perspective and a contract with one “person” cannot be enforced against another. This same logic applies in the context of corporate versus individual actions, i. e. the actions of one person cannot be legally attributed to another person. By extension the assets of an individual cannot be collected to satisfy a purely corporate debt or judgment.

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


Gordon & Rees Ranks #5 in Top 50 Construction Law Firms in the Nation

Congratulations card

Gordon & Rees is the only California-based law firm to rank in the Top 25.

June 29, 2020
Gordon Rees Scully Mansukhani

Gordon Rees Scully Mansukhani has been ranked the #5 construction law firm in the nation by Construction Executive in the magazine’s 2020 ranking of The Top 50 Construction Law Firms. Gordon & Rees is the only California-based law firm to rank in the Top 25.

The firm was ranked in the Top 10 in more specific areas as well.

  • #1 in the Top 10 Law Firms Ranked by Most Locations
  • #2 in the Top 10 Law Firms Ranked by Number of Construction Attorneys
  • #6 in the Top 10 Law Firms Ranked by Number of States Admitted to Practice

“With offices throughout the nation and outstanding construction attorneys in many of those offices, we are able to offer our construction clients a diverse range of legal services wherever they do business,” said Ernie Isola partner and co-chair of the firm’s construction practice group.


Partner Vik Nagpal is Recognized as a Top Lawyer of 2020

Business person standing with arms up in triumph

Mr. Nagpal has been successful in obtaining complete defense verdicts through trial in construction defect and toxic tort matters.

June 29, 2020
Bremer Whyte Brown & O'Meara LLP

Please join us in congratulating San Diego Partner Vik Nagpal for being recognized as a Top Lawyer of 2020 by San Diego Magazine! San Diego Magazine works with Martindale-Hubbell to choose top lawyers who have reached the highest level of ethical standards and professional excellence. Vik Nagpal was evaluated and given the highest ratings by the colleagues using a peer reviewed

Vik Nagpal is the managing partner of Bremer Whyte Brown & O’Meara LLP’s San Diego offices, as well as directing the firm’s business development.


Get on the Path to Healthy Buildings With LEED

June 29, 2020
Tommy Linstroth - Construction Executive

The COVID-19 pandemic has spurred a new focus on how health and wellness issues can be proactively addressed through building design and green construction techniques.

Designers have to consider how viruses can be transmitted and how the danger can be mitigated. Research on how airborne particles can be circulated in HVAC systems leads to more discussion about proper system design and filtration and the importance of introducing clean outdoor air in the facility.

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



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