Legal Implications of 3D Printing in Construction Loom

Blue keyboard key says 3D

The use of 3D printers in the construction industry will have legal implications that will affect owners, contractors, manufacturers and software developers.

July 10, 2018
Aldo E. Ibarra - Engineering News-Record

Imagine a printer in the middle of a construction site programmed with a designer’s plans and specifications to build an entire home from scratch. As concrete is fed into the printing device, a technician hits enter on her computer and a 3D printer starts fabricating the structure’s walls and roof.

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


Kushner Company Files Suit Against Jersey City Over Delays to Planned Towers

Woman lying beside clock

Kushner family alleges city's animosity against Trump reason for construction delays.

July 10, 2018
Associated Press - Engineering News-Record

JERSEY CITY, N.J. (AP) — Jared Kushner's family company has filed a lawsuit against a New Jersey city, saying it forced the delay of a major twin-tower project due to "political animus" toward President Donald Trump.

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


The Unpost, Post: Dynamex and the Construction Indianapolis

Open field with blue sky and clouds

Dynamex changed the nearly 30-year old test, first elucidated in S.G. Borello & Sons Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, for determining whether a worker is properly classified as an independent contractor or an employee.

July 10, 2018
Garret Murai - California Construction Law Blog

It’s been three months since the California Supreme Court issued its landmark decision in Dynamex Operations West, Inc. v. Superior Court, Case No. S222732 (April 30, 2018) and I’ve had a couple of readers (perhaps my only two) ask whether I was going to write about the decision.

I’m not. Well, obviously, that’s not quite true if you’re reading this. Rather, I’ll tell you why I’m writing about not writing about the decision.

Dynamex is certainly an important decision and one that will likely be cited for decades to come. In short, Dynamex changed the nearly 30-year old test, first elucidated in S.G. Borello & Sons Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, for determining whether a worker is properly classified as an independent contractor or an employee.

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


Insurer Must Defend Claims of Negligence and Private Nuisance

Business man with red super hero cape

Insurer had a duty to defend negligence and private nuisance claims for dumping materials on the plaintiffs' property.

July 10, 2018
Tred R. Eyerly - Insurance Law Hawaii

The court determined there was a duty to defend negligence and private nuisance claims for dumping materials on the plaintiffs' property. Peters Heavy Construction, Inc. v. X-Pert One Tracking Corp., 2018 Wisc. App. LEXIS 358 (Wis. Ct. App. March 29, 2018).

Peters Heavy Construction sued X-Pert One for negligently depositing shingle materials, tires, and other solid materials on Peters' property, causing damage to Peters, including loss of use of portions of the property. Peters also alleged that X-Pert One's actions negligently created a private nuisance causing harm to Peters' property. X-Pert One's insurer, Northfield Insurance Company, was also sued.

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


Supreme Court Overrules Longstanding Decision Supporting Collection of Union Agency Fees

Dollars flying from computer

The U.S. Supreme Court overruled a longstanding decision which required government employees who are represented by but do not belong to a union, to pay a fair share or agency fee to cover the union's costs for collective bargaining activities.

July 2, 2018
Amy R. Patton, Blake A. Dillion, & Eric C. Sohlgren - Payne & Fears

In a 5 to 4 opinion, the United States Supreme Court overruled a longstanding decision which required government employees who are represented by but do not belong to a union, to pay a fair share or agency fee to cover the union's costs for collective bargaining activities. In Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. ___ (2018), the Supreme Court found that requiring such fees from nonconsenting public sector employees violates the First Amendment: "[n]either an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay."

Reprinted courtesy of Payne & Fears attorneys Amy R. Patton, Blake A. Dillion and Eric C. Sohlgren
Ms. Patton may be contacted at arp@paynefears.com
Mr. Dillion may be contacted at bad@paynefears.com
Mr. Sohlgren may be contacted at ecs@paynefears.com


Construction Owners Seek Success Through Collaboration

July 2, 2018
Alisa Zevin - Engineering News-Record

The Construction Owners Association of America (COAA) is an organization dedicated to promoting the role of capital construction owners within the planning, design and construction process. The following is a question and answer session with Gwen Glattes, project controls manager at Penn Medicine, University of Pennsylvania, and board member of COAA, detailing her involvement in the organization. Glattes outlines how she got started with COAA, what’s happening currently and what she sees for the future of the organization.

Ms. Zevin may be contacted at zevina@enr.com


Where Mechanic’s Liens and Contracts Collide

Two businessmen at table with coffee cups

The Loudoun County Circuit Court in Virginia discussed the interaction between mechanic’s liens, contracts and the law of fixtures.

July 2, 2018
Christopher G. Hill - Construction Law Musings

Today at Construction Law Musings, we’re back to a discussion of mechanic’s liens.

This past week, the Loudoun County Circuit Court here in Virginia had an opportunity to discuss the interaction between mechanic’s liens, contracts and the law of fixtures. In TWP Enters. v Dressel, the Court considered a provision of a contract between the TWP Enterprises, a supplier of materials to the construction project, and the builder for the defendant. The provision between the supplier and builder essentially stated that until such time as TWP’s materials were paid for in full, TWP kept title to them (check out the case link above for the full text of the provision).

Needless to say, the builder did not pay and TWP filed a mechanic’s lien then sued to enforce that lien. The owners demurred to the complaint and asked the Court to dismiss the claim on several grounds, among them that the contractual provision described above precluded the enforcement of the lien because TWP retained title to the materials despite the fact that they had been incorporated into the structure of the building and were therefore part of the realty.

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


What are Section 8(f) Agreements?

Businesswoman Looking Pensive with Contract

Under Section 8(f) of the NLRA, construction industry employers can choose to become union without any showing of majority support by employees.

July 2, 2018
Wally Zimolong – Supplemental Conditions

Like many areas of federal labor law, there are different rules for construction industry employers. One major difference is in how employers become unionized. Typically, under Section 9(a) of the National Labor Relations Act, a union becomes a collective bargaining agent of employees only after a majority of employees show support for union representation. In other words, the employees chose whether to be represented by a particular union. However, under Section 8(f) of the NLRA, construction industry employers can choose to become union without any showing of majority support by employees. In fact, construction industry employers don’t need to have any employees at all to sign a “8(f) agreement.” Thus, these agreements have become known as pre-hire agreements.

Mr. Zimolong may be contacted at wally@zimolonglaw.com


Increase in Western States Permits Causes Nationwide Numbers to Surge

July 2, 2018
Beverley BevenFlorez-CDJ STAFF

The National Association of Home Builders’ Eye on Housing reported, in the first quarter of 2018, single-family home permits increased 8.4% over the April 2017 levels. In the year between April 2017 and April 2018, over 30 states featured single-family permit growth, with Colorado recording the highest rate of growth (34.2%). Texas and Florida led the U.S. in number of permits issued, while the lowest came from District of Columbia. According to Eye on Housing, the nationwide increase in permits “ is largely due to the aggregate increase in single-family permits across the Western states. Out of the 13 which are classified as Western states, nine states recorded single-family permit growth exceeding the national average.”


As Evidence Grows, Regions Prepare for Sea Level Rise

Water rippling

A UCS report found that within 15 years, about 147,000 existing homes and 7,000 commercial properties, worth $63 billion, could flood once every other week.

July 2, 2018
Pam Radtke Russell - Engineering News Record

Cities, states and regions are taking steps to prepare their buildings, infrastructure and homes for the impacts of climate change as bad news continues to mount about rising sea levels.

Ms. Russell may be contacted at Russellp@bnpmedia.com


Human Eye Resolution Virtual Reality for AEC

Close-up of human eye

Sweco, Varjo, and Teatime Research are together exploring the possibilities of VR using state-of-the-art technology.

July 2, 2018
Aarni Heiskanen - AEC Business

Virtual reality opens new perspectives for communication and customer involvement in construction. Sweco, Varjo, and Teatime Research are together exploring the possibilities of VR using state-of-the-art technology.

“I think that the use of VR in construction is still at a visionary stage and useful practical applications are rare,” says Niina Jaatinen, Service Manager at Sweco. “When we learned about Varjo’s exceptional technology, we thought that maybe it’s now time to start developing the really useful apps customers would yearn for.”

Mr. Heiskanen may be contacted at info@aepartners.fi


Hurricane Prevention Reduces Business Loss Exposures

July 2, 2018
Beverley BevenFlorez-CDJ STAFF

For every dollar spent on Hurricane protection, businesses saved $105, according to research completed by FM Global, as reported by Property Casualty 360. The statistic was derived from “over 10,000 wind- and flood-related investments and their associated reduction in property loss and business disruption exposure for 1,800 clients around the world from 2008 to 2017.” FM Global is a commercial and industrial property insurer.


Legislation Update: S-865 Public-Private Partnerships in New Jersey Passed by Both Houses-Awaiting Governor’s Signature

Typewriter with paper saying Legislation

S-865 sets forth the mechanism for Public-Private Partnerships for public building and highway infrastructure projects under the oversight of the Department of Treasury.

July 2, 2018
Steven M. Charney & Charles F. Kenny - Peckar & Abramson, P.C.

New Jersey is finally close to being among the many states with broad authority to develop or improve public projects through a Public-Private Partnership (P3) delivery method. This contracting model has stimulated growth and improvements in other States and led to the delivery of projects that may not otherwise have happened. Senate Bill 865 (“S-865”), after undergoing some last-minute amendments in a frenzied legislature dealing with budget and other critical issues, has passed in both houses of the Legislature and is waiting for Governor Murphy’s signature, which is expected shortly. The law will be effective 180 days from formal enactment. The administrative framework is now in place to make Public-Private Partnerships a reality in New Jersey.

Reprinted courtesy of Steven M. Charney, Peckar & Abramson, P.C. and Charles F. Kenny, Peckar & Abramson, P.C.
Mr. Charney may be contacted at scharney@pecklaw.com
Mr. Kenny may be contacted at ckenny@pecklaw.com


Contractors Can No Longer Make Roof Repairs Following Their Own Inspections

Three contractors repairing roof

The goal of the new law is to disincentivize a roof inspector from creating a report for the sole purpose of obtaining a bid to perform those documented repairs.

July 2, 2018
Jason Feld & Alex Chazen - Kahana & Feld LLP

California law mandates that any person who conducts roof inspections for a fee can no longer effectuate the actual repairs to the same property. Effective January 1, 2018, Business & Professions Code Section 7197 (Unfair Business Practices) deems it to be an unfair business practice for a home inspector who charges a homeowner a monetary fee for inspecting the property, to perform or offer to perform additional repairs due to the inherent financial interest and conflict raised by identifying alleged defects necessitating repairs. The new law is a result of California AB 1357, which was signed into law on October 5, 2017. The goal of the new law is to disincentivize a roof inspector from creating a report for the sole purpose of obtaining a bid to perform those documented repairs. The roof contractor can perform repairs identified in their report only after a twelve month “cooling period” which provides the homeowner an opportunity to obtain multiple bids/estimates for repairs based upon the inspector’s report. The new law also discourages home inspectors from providing a list of contractors who provide monetary referral fees back to the home inspector upon receiving repair work from the homeowner based exclusively on the home inspection report.

The California Business & Professions Code Section 7195(a)(1) defines a “home inspection” as a “non-invasive, physical examination, performed for a fee in connection with the transfer…of the real property…or essential components of the residential dwelling.” Home inspection includes “any consultation regarding the property that is represented to be a home inspection or any confusingly similar term.” Business & Professions Code section 7195(a)(2) further defines a “home inspection” as including energy efficiency and solar. A “home inspection report” is a written report prepared for a fee issued after an inspection. Business & Professions Code section 7195(c). It is noted that a home inspector does not have to be a licensed architect, professional engineer, or general contractor with a Class “B” license issued by the California Contractors State License Board, but “it is the duty of a home inspector who is not licensed as a general contractor, structural pest control operator, or architect, or registered as a professional engineer to conduct a home inspection with the degree of care that a reasonably prudent home inspector would exercise. Business & Professions Code section 7196.

Reprinted courtesy of Jason Feld, Kahana & Feld LLP and Alex Chazen, Kahana & Feld LLP
Mr. Feld may be contacted at jfeld@kahanalaw.com
Mr. Chazen may be contacted at achazen@kahanafeld.com


California Construction Law Seminar Presented by the Seminar Group

July 2, 2018
Beverley BevenFlorez-CDJ STAFF

This two-day seminar led by construction lawyers and mediators, includes the following topics: New Construction Law Developments, Competitive Bidding and Bid Protests, Construction Changes, Permitting and Environmental Considerations, Bankruptcy, Abandonment and Surety Remedies, Effective Discovery, Critical Path Method Scheduling, Alternative Delivery Methods, Ethical Considerations, Insurance, Lien and Bond Claims, Dealing with Sureties, Construction Mediation, and more.

September 17th-18th, 2018
DoubleTree Suites
1707 Fourth Street
Santa Monica, CA 90401-331


Court of Federal Claims: Upstream Hurricane Harvey Case Will Proceed to Trial

Three judges presiding over bench black-white illustration

On May 24, the U.S. Court of Federal Claims decided one of what may be many cases involving the terrible flooding wrought by Hurricane Harvey in the Houston, TX region.

July 2, 2018
Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog

On May 24, the U.S. Court of Federal Claims decided one of what may be many cases involving the terrible flooding wrought by Hurricane Harvey in the Houston, TX region. The Court of Federal Claims has divided thousands of pending claims into “upstream” and “downstream” categories, depending on whether the flooded properties were located upstream or downstream of two U.S. Army Corps of Engineers (Corps) flood control reservoirs that were constructed in the 1940s and 1950s. The case is In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs; however, the Court of Federal Claims’ order in this case applies to “all upstream cases.”

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


California Supreme Court Clarifies Deadline to File Anti-SLAPP Motions in Light of Amended Pleadings

White and Blue Communication Bubbles

By facilitating an early challenge to a plaintiff or cross-complainant’s claims, the anti-SLAPP statute allows the responding party to avoid the costs and delay that chill the exercise of constitutionally protected rights.

July 2, 2018
Tony Carucci - Snell & Wilmer Real Estate Litigation Blog

California’s “anti-SLAPP” (“SLAPP” is an acronym for strategic lawsuit against public participation) statute—codified at California Code of Civil Procedure section 425.16 et seq.—is the primary vehicle for defending against any action involving petitioning or free speech. The statute was designed to provide an early and fast summary judgment-like procedure to allow defendants and cross-defendants to file a motion to dismiss either an entire complaint, specific causes of action, or even just portions of a cause of action, and to require the plaintiff to respond before conducting discovery. By facilitating an early challenge to a plaintiff or cross-complainant’s claims, the anti-SLAPP statute allows the responding party to avoid the costs and delay that chill the exercise of constitutionally protected rights.

Under California Code of Civil Procedure section 425.16(f), an anti-SLAPP motion must be filed “within 60 days of the service of the complaint . . . .” But what if the plaintiff files an ameded complaint? In Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, the California Supreme Court held that the 60-day timeline runs from the date a complaint is filed with the cause(s) of action challenged in the anti-SLAPP motion.

Mr. Carucci may be contacted at acarucci@swlaw.com


California Supreme Court Protects California Policyholders for Intentional Acts of Employees

CDJ_Gavel_Black_White_Illustration

The California Supreme Court ruled that liability insurers are obligated to cover negligent supervision, hiring, and retention claims against employers resulting from the intentional acts of their employees.

July 2, 2018
William S. Bennett – Saxe Doernberger & Vita P.C.

Recently, the California Supreme Court ruled that liability insurers are obligated to cover negligent supervision, hiring, and retention claims against employers resulting from the intentional acts of their employees.

The case, Liberty Surplus Insurance v. Ledesma & Meyer Construction, case no. S236765 (2018), involved an insurance coverage dispute between a construction company, Ledesma & Meyer Construction (“L&M”), and its insurers, Liberty Insurance Underwriters, Inc. (“Liberty”) and Liberty Surplus Insurance Corp (“Liberty Surplus”). Liberty was L&M’s primary insurer, while Liberty Surplus had the excess policy. L&M had contracted with the San Bernardino Unified School District to renovate a school building while the school was still in session. In a separate action, another court found that an L&M employee sexually assaulted a 13-year-old student while working at the project.

Mr. Bennett may be contacted at wsb@sdvlaw.com


Need to Cover Yourself for “Crisis” Changes on a Job Site? Try These Tips (guest post)

Workers on construction job site

Christopher G. Hill's practice concentrates on mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

July 2, 2018
Melissa Dewey Brumback – Construction Law in North Carolina

Today, we welcome back friend of the blog Christopher G. Hill.

Chris is a LEED AP, a Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC. Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals.

As construction professionals we’ve all been there. Something happens on a job site that requires immediate attention and possibly a changed sequence of work or possibly a change to a subcontractor’s scope. It could be a buried power line that Miss Utility failed to mark properly or an owner that wants a different HVAC configuration at the last minute. It could also simply be that it rained too much, and work had to slow down.

The above examples are instances of items that are beyond the control of the general contractor or the subcontractors and are the type that require shifts in work schedules and changes in scope that must be dealt with on the fly and require quick decisions and immediate action if the project is to meet any time of completion reasonably close to that which is listed in the contract documents. It can often seem that there is no time to meet the written change order provisions of any well drafted construction contract.

Ms. Brumback may be contacted at mbrumback@rl-law.com


Is Arbitration Final and Binding?

CDJ-Chain against blue sky

The Federal Arbitration Act (FAA) is a statute enacted in 1925 which provides the basic legal principles applicable to arbitration in the United States.

July 2, 2018
Jeanne M. Harrison - Smith Currie

Parties involved in a dispute may face a choice between arbitration and litigation. Previous articles in this series have discussed various factors that can influence that choice. One generally perceived advantage of arbitration is finality. But how final and binding is an arbitration award? The answer is governed primarily by the Federal Arbitration Act.

The Federal Arbitration Act

    The Federal Arbitration Act (FAA) is a statute enacted in 1925 which provides the basic legal principles applicable to arbitration in the United States. At its core is the following principle—arbitration agreements involving interstate or foreign commerce (which includes virtually all construction contracts in the United States) must be considered:
  • Valid
  • Irrevocable; and
  • Enforceable, except on legal or equitable grounds for the revocation of a contract.

Ms. Harrison may be contacted at jmharrison@smithcurrie.com



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