Avoiding 'E-trouble' in Construction Litigation

construction standing stepping

Requests for ESI are inevitable in litigation today and the production of inappropriate emails and other ESI open the door for an opposing attorney to argue that a company fosters a culture of uncouth, unprofessional and unfocused project management.

September 10, 2018
Judah Lifschitz - Construction Executive

During the 2016 presidential election, the FBI subpoenaed Hillary Clinton's emails after she used a private email server during her time as Secretary of State. Separately, the more recent investigation into Donald Trump’s campaign policy adviser, George Papadopoulos, resulted in scrutiny over both his email and social media.

As shown the above examples, there are damaging effects of electronically stored information in politics, but how does it impact the construction industry?

If not used carefully and properly, emails will serve as “truth serum” in court. Attorneys can simply read an email to know employees’ thoughts or actions, meaning an impulsive email or social media post will most likely come back to haunt the company. Requests for ESI are inevitable in litigation today and the production of inappropriate emails and other ESI open the door for an opposing attorney to argue that a company fosters a culture of uncouth, unprofessional and unfocused project management.

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

Mr. Lifschitz may be contacted at lifschitz@slslaw.com


SBA Cuts Surety Guarantee Fees, for One Year

September 10, 2018
Tom Ichniowski – Engineering News-Record

The U.S. Small Business Administration will be trimming the fees it charges for its surety bond guarantees for one year, the first reduction in the charges in 12 years.

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


Contractors Should Be Optimistic that the Best Value Tradeoff Process Will Be Employed by Civilian Agencies

Optimistic smiling woman showing ok sign

Pillsbury attorneys Dick Oliver and Aaron Ralph are optimistic that contractors will soon have additional legal authority to demonstrate to civilian agencies that a best value tradeoff process should be employed.

September 10, 2018
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel

In The Fiscal Year 2019 NDAA Imposes Government-Wide Limitations on the Use of Lowest-Price Technically Acceptable Procurements, Pillsbury attorneys Dick Oliver and Aaron Ralph are optimistic that contractors will soon have additional legal authority to demonstrate to civilian agencies that a best value tradeoff process should be employed.

  • Congress’ trend of limiting the use of the much-derided lowest price, technically acceptable (LPTA) procurement process continues.

Japan Quake Triggers Landslides, Knocks Power Plant Offline

words disaster tokyo quake japan tsunami

The quake struck east of the city of Tomakomai, and was only 70 km from the city of Sapporo, Hokkaido's largest city with a population of 1.9 million.

September 10, 2018
Jeff Rubenstone - Engineering News-Record

A magnitude 6.7 earthquake occurred on the northern Japanese island of Hokkaido on Sept. 6, leaving at least seven dead and damaging buildings and structures in the region, including a 1,650MW coal-fired thermal power plant that was taken offline.

Mr. Rubenstone may be contacted at rubenstonej@enr.com


New Homes Look Like a Deal, at Least Compared With Existing Ones

September 5, 2018
Prashant Gopal - Bloomberg

What’s happening to the new-home premium?

The average new home in the U.S. went for $324,467 in June, 28 percent more than the $254,200 price for existing homes, according to data from John Burns Real Estate Consulting LLC. That’s down from a 37 percent gap in 2015 and is the smallest difference since the end of 2010.


Over One Hundred Charged in Fraudulent Sandy Relief Fund Applications

September 5, 2018
David Suggs – Bert L. Howe & Associates, Inc.

Recently, the number of false claims in New Jersey Sandy Relief Fund Applications has grown to 120, according to Property Casualty 360. Furthermore, “[t]he 120 people charged by the Attorney General’s Office allegedly were responsible for diverting more than $8 million in relief funds.”

Attorney General Gurbir S. Grewal explained what has been done to reclaim the alleged diverted funds: “We have recovered over $2.2 million through these prosecutions and we also have sent a strong message that should deter this type of fraud during future disaster relief efforts.”


Troubleshooting Construction Project Legal Issues

September 5, 2018
Beverley BevenFlorez - CDJ STAFF

The National Business Institute (NBI) will host a seminar on how to best deal with construction project legal issues. The one-day course is suited to Attorneys, Construction Contractors and Subcontractors, Real Estate Developers, Architects, Engineers, and Paralegals. Topics will include Construction Contracts: What Every Attorney and Contractor Should Know; Delays, Acceleration and Stopped Work: Proving or Disproving Liability and Calculating Damages; Indemnity and Other Risk Transfer Clauses: Are You Picking Up the Other Guy's Tab?; Construction Bids; Mechanics' Liens and Surety Bonds: Essential Strategies; Ensuring Proper Insurance Coverage; Construction Case Law and Legislative Updates; and Ethical Considerations.

December 18th, 2018
Hampton Inn & Suites Baton Rouge Downtown
462 Lafayette Street
Baton Rouge, LA 70801


Summer Learning Programs Engage Students in Construction Careers

September 5, 2018
Mike Glavin - Construction Executive

Summer camp is a tradition for many young people across the country. For some lucky students, this summer was filled with blueprints, tools and construction skills instead of sports, crafts and swimming.

Several chapters of Associated Builders and Contractors have partnered with schools and community organizations to provide summer learning to young people interested in gaining a competitive advantage in their future career with quality construction skills. With more than 500,000 jobs available in the construction industry right now, creating opportunities for young people to connect with construction professionals and learn career-ready skills is essential.

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

Mr. Glavin may be contacted at glavin@abc.org


Sacramento Army Corps District Projects Get $2.1 Billion in Supplemental Appropriation

Money floating

Greg Aragon is a freelance writer from Los Angeles, who writes about construction around the Golden State.

September 4, 2018
Greg Aragon - Engineering News-Record

The U.S. Army Corps of Engineers Sacramento District has received supplemental funding for five District projects, totaling an investment of more than $2.1 billion in flood risk management efforts.

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


Rhode Island District Court Dismisses Plaintiff’s Case for Spoliation Due to Potential Unfair Prejudice to Defendant

Businessman hand raised

If a subrogating carrier’s experts have viewed evidence that is later lost or destroyed before the defendant has the chance to view it, there is a potential for prejudice and a subrogating insurer may be hard-pressed to survive a motion to dismiss.

September 4, 2018
Lian Skaf - The Subrogation Strategist

In Amica Mutual Ins. Co. v. BrassCraft Mfg., Co., 2018 U.S. Dist. LEXIS 88986 (D.R.I. May 29, 2018), the United States District Court for the District of Rhode Island addressed the question of whether the defendant was so unfairly prejudiced by the subrogating insurer’s spoliation of evidence that dismissal of the plaintiff’s case was the appropriate Rule 37(b)(2)(a)(i)-(vi) sanction. The court, focusing on the potential for undue prejudice to the defendant, granted the defendant’s motion to dismiss.

Mr. Skaf may be contacted at skafl@whiteandwilliams.com


N.J. Governor Signs Bill Expanding P3s

Businessman signing document

New Law Includes Prevailing Wage and PLA Requirements

September 4, 2018
Nick Steingart - Construction Executive

Government entities in New Jersey that enter into public-private partnerships to help finance public construction projects are now required to utilize a project labor agreement (PLA) and pay state prevailing wages, among other requirements. Previously, P3s were only available to state and county colleges, but did not contain prevailing wage or PLA mandates.

The new law, Senate Bill 865, allows the state and its subdivisions, including counties, municipalities and school districts, to enter into agreements with private funding sources provided they follow the additional mandates such as abiding by the state’s prevailing wage law and utilizing a union-only PLA for construction of the project.

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

Mr. Steingart may be contacted at steingart@abc.org


Illinois Court Addresses Rip-And-Tear Coverage And Existence Of An “Occurrence” In Defective Product Suit

Paper torn

Brian Bassett analyzes the case Lexington Ins. Co. v. Chi. Flameproof & Wood Specialties Corp.

September 4, 2018
Brian Bassett - TLSS Insurance Law Blog

In Lexington Ins. Co. v. Chi. Flameproof & Wood Specialties Corp., 2018 U.S. Dist. LEXIS 135871, 2018 WL 3819109 (N.D. Ill. Aug. 10, 2018), the U.S. District Court for the Northern District of Illinois found that rip-and-tear costs could qualify as covered “property damage,” but the court rejected coverage for claims that the insured intentionally sold a noncompliant product as the suit did not allege an “occurrence.”

Lexington Insurance Company (“Lexington”) issued a CGL policy to Chicago Flameproof & Wood Specialties Corp. (“Flameproof”). During the policy period, a third party ordered fire-retardant-treated lumber from Flameproof for construction in Minnesota. Flameproof instead sent materials that were not tested, certified, or labeled as compliant. The third party installed the materials, discovered the non-compliance, and then removed the materials. Removing the materials allegedly damaged other portions of the building on the project. The third party then sued Flameproof, alleging costs associated with replacing the lumber as well as property damage to the other materials from the removal of the lumber. Flameproof tendered the claim to Lexington seeking a defense. Lexington filed a declaratory action in the Northern District of Illinois.

Mr. Bassett may be contacted at bbassett@tlsslaw.com


2018 Update to EPA’s “Superfund Task Force Report”

Update Keyboard

Thousands of sites have been listed on EPA’s National Priority List (NPL) of Superfund sites, but the process by which listed sites are cleaned up and finally removed from the NPL has been agonizingly slow.

September 4, 2018
Anthony B. Cavender - Gravel2Gavel

The U.S. Environmental Protection Agency (EPA) recently released its Superfund Task Force Recommendations 2018 Update (the Update). The Superfund Task Force was established by former EPA Administrator Scott Pruitt to “provide recommendations on an expedited timeframe on how the agency can restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups of sites and promote the revitalization of properties across the country.” Over the years, thousands of sites have been listed on EPA’s National Priority List (NPL) of Superfund sites, but the process by which listed sites are cleaned up and finally removed from the NPL has been agonizingly slow. The process is governed by the National Contingency Plan rules. The Update states that, as of July 3, 2018, there are 1,346 sites listed on the NPL, and overall, 399 sites have been removed from the NPL.

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


9th Circuit Closes the Door on “Open Shop” Contractor

Door key in lock

The 9th Circuit’s decision may well be the death knell for challenges to SB 954.

September 4, 2018
Garret Murai - California Construction Law Blog

At the height of the Great Depression nearly one-quarter of Americans were unemployed. In response, Congress enacted a series of laws including the Smoot-Hawley Tariffs Act, which raised tariffs on foreign goods in an effort to spur domestic investment and to increase the number of jobs. Sound familiar?

Background
The Davis-Bacon Act

Among the new laws enacted by Congress was the Davis-Bacon Act which required contractors on federal works projects to pay their workers the wages prevailing in the area where a project was located, also known as “prevailing wages,” in an effort to stem the practice of employers bringing in lower-wage workers from outside the area. The same year that the Davis-Bacon Act was enacted, California enacted its own prevailing wage law modeled after the Davis-Bacon Act and applicable to state and local public works projects.

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


Best Lawyers Recognizes Twenty White and Williams Lawyers

Gold stars and white circles over a black background

Twenty White and Williams lawyers were recognized on the 2019 Best Lawyers in America list.

September 4, 2018
White and Williams LLP

Twenty White and Williams lawyers were recognized on the 2019 Best Lawyers in America list. Inclusion in Best Lawyers is based entirely on peer-review. The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of quality legal services.


Resolving Condominium Construction Defect Warranty Claims in Maryland

Condos City Skyline

Nicholas D Cowie is a partner in the law firm of Cowie & Mott, P.A. and is licensed to practice law in Maryland and Washington DC (District of Columbia).

September 4, 2018
Nicholas D. Cowie - Maryland Condo Construction Defect Blog

A Guide for Maryland Condominium Associations
Newly constructed and newly converted condominiums in Maryland often contain concealed or “latent” construction defects. Left undetected and unrepaired, latent defects stemming from the original construction of a condominium can cause extensive damage over time, requiring associations to assess their members for unanticipated repair costs that could have been avoided by making timely developer warranty claims.

This article provides a general overview of how Maryland condominium associations transitioning from developer control can proactively identify and resolve construction defect claims with condominium developers and builders before warranty and other legal rights expire. This proactive approach typically results in an amicable resolution without the need for litigation.

Mr. Cowie may be contacted at ndc@cowiemott.com


Remand of Bad Faith Claim Evidences Split Among Florida District Courts

Black background with paper split in middle

The decision highlights the split among district courts, as it relates to what appears to be a simple issue.

September 4, 2018
Michael S. Levine & Daniel Hentschel - Hunton Insurance Recovery Blog

Whether an insurance bad faith claim, joined by amendment to an underlying insurance coverage action, may be removed more than a year after the original action was begun has divided federal judges in the state of Florida but has not yet been considered by the Eleventh Circuit. Now, a new opinion out of the Middle District of Florida (Jacksonville Division) has added to the debate.

Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Daniel Hentschel, Hunton Andrews Kurth
Mr. Levine may be contacted at mlevine@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com


Motion to Dismiss Insureds' Counterclaim on the Basis of Prior Knowledge Denied

Denied stamp

Tred R. Eyerly discusses the case Hudson Spec. Ins. Co. v. Talex Enter.

September 4, 2018
Tred R. Eyerly - Insurance Law Hawaii

The insurer unsuccessfully moved to dismiss portions of the insureds' counterclaim based upon prior knowledge. Hudson Spec. Ins. Co. v. Talex Enter., 2018 U.S. Dist. LEXIS 105598 (S. D. Miss. June 25, 2018).

The insureds' building collapsed in McComb, Mississippi. Pubic utilities were damaged and traffic disrupted. The City sued the insured, alleging that the building collapsed because there was too much water gathered on its roof. The City further alleged that the insureds knew too much water was on the roof because they had been told by someone hired to clean the drain that it was clogged and by a contractor that the roof was so damaged that it could not safely be repaired.

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


Measure of Damages in Negligent Procurement of Surety Bonds / Insurance

Curly measuring tape

This measure of damages in a negligent procurement of insurance claim is important because it is the measure of damages that dictates recoverable damages under this claim.

September 4, 2018
David Adelstein - Florida Construction Legal Updates

My broker procured the wrong insurance and I am exposed to a loss. My broker failed to procure proper insurance and I am exposed to a loss. “Where the parties enter into an agreement to procure insurance and there is a negligent failure to do so, an insurance broker may be liable for damages.” The Lexington Club Community Association, Inc. v. Love Madison, Inc., 43 Fla.L.Weekly D1860a (Fla. 4th DCA 2018). The proper measure of damages in a negligent procurement of insurance claim is “what would have been covered had the insurance been properly obtained.” Id. quoting Gelsomino v. ACE Am. Ins. Co., 207 So.3d 288, 292 (Fla. 4th DCA 2016). This measure of damages in a negligent procurement of insurance claim is important because it is the measure of damages that dictates recoverable damages under this claim.

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


Connecting IoT Data to BIM

Connected Checkbox

Aalto University is developing and testing a service that links IoT with building information models, BIMs.

September 4, 2018
Aarni Heiskanen - AEC Business

Internet of Things sensors and IoT-capable devices provide a huge amount of data from buildings. To make this data useful and usable for research, Aalto University is developing and testing a service that links IoT with building information models, BIMs.

“The idea to start an experiment on linking IoT with BIM at the Otaniemi campus originated from discussions we had within professor Martti Mäntylä’s Aalto campus IoT group. We realized that several small research projects were simultaneously testing IoT here. So we decided to create a framework for sharing information between the projects,” says Seppo Törmä, CEO of VisuaLynk.

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



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