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A decree of specific performance is an equitable remedy ‘not granted as a matter of right or grace but as a matter of sound judicial discretion’ governed by legal and equitable principles.

Specific Performance: Equitable Remedy to Enforce Affirmative Obligation

Monday, January 18, 2021 — David Adelstein - Florida Construction Legal Updates

When a party breaches an agreement, particularly when dealing with real estate, there is an equitable remedy known as specific performance that requests the trial judge issue an order to affirmatively force the breaching party to perform, i.e., close on the real estate contract. You are asking the court to require the other party to specifically perform an affirmative obligation. See Melbourne Ocean Club Condominium Ass’n, Inc. v. Elledge, 71 So.3d 144, 146 (Fla. 2011).

A decree of specific performance is an equitable remedy ‘not granted as a matter of right or grace but as a matter of sound judicial discretion’ governed by legal and equitable principles. Specific performance shall only be granted when 1) the plaintiff is clearly entitled to it, 2) there is no adequate remedy at law, and 3) the judge believes that justice requires it.

Castigliano v. O’Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005) (internal citations omitted).

An example of specific performance may play out, as mentioned, in a real estate contract where a seller refuses to close on the transaction.

Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

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

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Because Residence Was Vacant For 60 Consecutive Days, Vacancy Exclusion in Property Policy Applied to Bar Coverage of Water Damage Claim Under Policy

St. Mary & St. John Coptic Orthodox Church v. SBS Insurance Services, Inc.

Monday, January 18, 2021 — Michael Velladao - Lewis Brisbois

In St. Mary & St. John Coptic Orthodox Church v. SBS Insurance Services, Inc., ----Cal.App.5th--- (November 23, 2020), the California First District Court of Appeal reversed the trial court's entry of judgment in favor of SBC Insurance Services ("SBC") regarding a claim for water damage sustained by a residence owned by St. Mary & John Coptic Church ("St. Mary") under property coverage afforded by a policy issued by Philadelphia Indemnity Insurance Company ("Philadelphia"). The policy was procured by SBC on behalf of St. Mary. Philadelphia denied coverage of the claim based on the vacancy exclusion in its policy, but entered into a settlement and loan receipt agreement, whereby St. Mary gave Philadelphia the right to control litigation in St. Mary’s name against SBC or third parties who might be liable for the loss in exchange for a loan of money to repair and remediate the damage sustained by the residence. The loan was to be repaid out of any recovery made against SBC or third parties. After a bench trial, the trial court found in favor of SBC and held that the vacancy exclusion was ambiguous. Essentially, the exclusion did not apply to the time period prior to the time St. Mary purchased the residence, such that the 60-day vacancy requirement could not be satisfied. The trial court reasoned that since St. Mary did not have an insurable interest in the property before it purchased the property, the 60-day requirement did not include the period before such residence was purchased and St. Mary held an insurable interest.

The parties’ dispute arose of out of the Pope of the Coptic Church requesting St. Mary to purchase a home to be used as his papal residence in the Western United States. St. Mary also intended to use the home as a residence for visiting bishops. The home was purchased on May 28, 2015. As part of the purchase, SBC placed the home under St. Mary’s commercial policy, rather than purchasing a separate homeowner’s policy for the residence. Subsequently, the home sustained water damage due to a broken pipe. The water damage was discovered on July 24, 2015, 57 days after the inception of the Philadelphia policy and the loss. St. Mary tendered the property loss to Philadelphia, which denied coverage of the claim based on the reasoning that the home had been vacant for 60 consecutive days prior to the loss. Subsequently, St. Mary filed suit against SBC after securing the loan receipt agreement with Philadelphia based on the argument that the vacancy exclusion barred coverage of the claim and SBC breached its duty of care by not securing the proper coverage of the home. The trial court entered judgment in favor of SBC finding that the vacancy exclusion did not apply to bar coverage of the loss, such that SBC did not breach its duty of care owed to St. Mary as its broker.

Reprinted courtesy of Michael Velladao, Lewis Brisbois

Mr. Velladao may be contacted at Michael.Velladao@lewisbrisbois.com

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Withholding too much money during a dispute can turn a position of strength into one of weakness.

Render Unto Caesar: Considerations for Returning Withheld Sums

Monday, January 18, 2021 — William E. Underwood Partner, Jones Walker LLP - ConsensusDocs

Withholding sums during a dispute can be an effective and perfectly legitimate means to protect against the harms caused by another party’s breach. However, withholding too much money during a dispute can turn a position of strength into one of weakness.

“Why should I fund the other side’s litigation war chest?” and “Isn’t this just a display of weakness?” are common questions raised by contractors when this issue is discussed. Often, the contractor is well within its contractual or legal rights to withhold money from a breaching subcontractor (another topic for another day). But it may not always be in a contractor’s best interest to withhold every single penny available.

This article addresses some of the long-term implications for failing to return withheld sums, including the potential to recover attorneys’ fees, possible bad faith, accruing interest, and overall litigation costs. Admittedly, it can be hard to give money back in the middle of a dispute. But sometimes it can positively impact the overall outcome of the case.

Reprinted courtesy of William E. Underwood, Jones Walker LLP (ConsensusDocs)

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

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Massive Omnibus Bill Has Cuts and Hikes for Construction Programs

January 18, 2021 — Tom Ichniowski - Engineering News-Record

The omnibus federal spending portion of the massive coronavirus relief package contains a collection of increases and cuts for key construction programs in fiscal year 2021, compared with the previous year’s enacted level.

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

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How Are Insurers And Policyholders Faring in COVID-19 Business Interruption Coverage Litigation?

January 18, 2021 — Edward M. Koch & Elizabeth C. Dolce - White and Williams LLP

This article is based on a presentation by the authors (along with Marc L. Penchansky and Felix S. Yelin) at White and Williams LLP’s Virtual Coverage College® on October 22, 2020. Every year, hundreds of insurance professionals come to Philadelphia—this year via our online platform—to participate in a full day of lectures and interactive presentations by White and Williams lawyers and guest panelists about the latest issues and challenges involved in claims handling and insurance litigation. Visit coveragecollege.com for more information and stay tuned for Coverage College® 2021.

With the COVID-19 pandemic and government stay-at-home orders came an unprecedented number of claims for business interruption coverage under first-party property policies—and the inevitable coverage litigation over those claims followed closely behind. As of this writing, we are aware of at least 70 court decisions on motions by insurers to dismiss policyholder lawsuits seeking business interruption coverage for COVID-19 related losses.

Reprinted courtesy of Edward M. Koch, White and Williams LLP and Elizabeth C. Dolce, White and Williams LLP
Mr. Koch may be contacted at koche@whiteandwilliams.com
Ms. Dolce may be contacted at dolcee@whiteandwilliams.com

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Lennar Targets 2 Billion for Major Single-Family Rental Push

January 18, 2021 — Patrick Clark - Bloomberg

The U.S. homebuilder Lennar Corp. is making a big push into single-family rentals, targeting a new set of customers at a time when surging prices threaten to push homeownership out of reach for many.

The Miami-based company is laying the groundwork to develop thousands of rental houses, according to people with knowledge of the matter. The firm is seeking to raise $2 billion for the initiative, said one of the people, who asked not to be named because the matter is private.

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CLFT 34th Annual Construction Law Conference

January 18, 2021 — Beverley BevenFlorez – CDJ Staff

This two-day seminar is sponsored by The Construction Law Foundation of Texas (CLFT) and The Construction Law Section, in cooperation with the Texas Institute of CLE. Topics to be covered include Come on In, The Water’s Fine: Vouching in to Construction Disputes, No Partnership by Ambush – An Overview of Transactional Entities in Construction and Commercial Agreements, And If You Build On It, You Buy It. The conference will be accessible through Zoom or a similar, interactive platform. Attendees will have opportunities for questions and comments to the presenters.

March 4th-5th, 2021
Virtual Conference

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At issue was a claim for damages to three insured buildings allegedly damaged during Tropical Storm Imelda.

Federal District Court Declines Invitation to Set Scope of Appraisal

Monday, January 18, 2021 — James M. Eastham - Traub Lieberman

In Mt. Hawley Ins. Co. v. Harrods Eastbelt, Ltd., No. CV H-20-2405, 2020 WL 7632250 (S.D. Tex. Dec. 22, 2020), the United States District Court for the Southern District of Texas addressed a request to set the scope of an appraisal by requiring the appraisers to use a specific format for the appraisal. At issue was a claim for damages to three insured buildings allegedly damaged during Tropical Storm Imelda. The insurer had denied coverage based on the asserted lack of wind-created openings as required for coverage under the policy. Rather, the insurer took the position that the interior leaks were caused by a number of excluded causes including long-term weathering, wear and tear, age-related deterioration, ponding, and long-term leaks.

In response to the denial of coverage, the insured invoked the appraisal provision of the policy which provided, among other things, that the “appraisers will state separately the value of the property and amount of loss.” Despite the language of the appraisal provision, the Insurer sought an order requiring the appraisers to state the amount of loss separately for each portion of the property in dispute and for each major building component including separate amounts of loss for roofs, exterior walls, windows, and interior water damage.

Reprinted courtesy of James M. Eastham, Traub Lieberman

Mr. Eastham may be contacted at jeastham@tlsslaw.com

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The most-read blog posts covered real estate and construction industry trends ranging from proptech trends like blockchain tokenization to COVID-specific rent carveouts and management disclosures to trends and market updates.

The G2G Year in Review: 2020

Monday, January 18, 2021 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

As we say goodbye to 2020, we wanted to share our top five most-read articles of 2020 from Gravel2Gavel. The most-read blog posts covered real estate and construction industry trends ranging from proptech trends like blockchain tokenization to COVID-specific rent carveouts and management disclosures to trends and market updates. Our posts provided deep industry insight and summarized hot topics that addressed the legal implications and disruptions that affected the market. Our 2020 roundup:

  1. Blockchain-Based Tokenization of Commercial Real Estate by Josh Morton and Matt Olhausen. Josh and Matt discuss the increasing interest in technology applications for real estate assets, or “Proptech,” and tokenization’s potential.
  2. Real Estate Trends: Looking Ahead to 2021 by Adam Weaver. Adam discussed the pandemic’s influence and future trends for the real estate market.
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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Bridge with cars in traffic

Kosciuszko Bridge armor is ‘splitting,’ dangerous, suit says.

Famed NYC Bridge’s Armor Is Focus of Suit Against French Company

Monday, January 18, 2021 — Joel Rosenblatt - Bloomberg

French construction giant Vinci SA faces allegations it’s partly to blame for the degradation of the armor installed on New York City’s Kosciuszko Bridge to protect against terrorist attacks and accidents.

Hardwire LLC, a Baltimore company that bid unsuccessfully on the project, previously sued one of its former executives for allegedly stealing its proprietary technology for bridge armor so he could win the contract. On Tuesday, Hardwire sought permission to add two units of Vinci to the suit, which claims damages of more than $40 million.

The armor is “splitting, delaminating, and is in danger of falling off,” causing a “clear and present danger,” according to the proposed revised complaint filed in federal court in Maryland. The separation “leaves significant vulnerabilities for the bridge cable.”

Reprinted courtesy of Joel Rosenblatt, Bloomberg
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CONSTRUCTION DEFECT NEWS
Woman pointing at contract for man to sign

One exception is a properly plead Virginia Consumer Protection Act (“VCPA”) claim.

Another Exception to Fraud and Contract Don’t Mix

Monday, January 18, 2021 — Christopher G. Hill - Construction Law Musings

Here at Construction Law Musings, we’ve discussed the fact that, in Virginia, the “economic loss rule” generally renders claims of fraud and construction contracts like oil and water. This is true in most states, including Florida.

What this means is that as a general rule where any party is supposed to perform under a contract, and fails to do so, the Virginia courts will dismiss a fraud claim out of a desire to avoid turning any breach of contract (read “broken promise”) case into a claim for fraud. As you have likely gathered by the title of this post, there are exceptions. One is a properly plead Virginia Consumer Protection Act (“VCPA”) claim.

Another, found in a recent Loudoun County, VA Circuit Court opinion in Madison v. Milton Home Systems Inc., is so called fraud in the inducement (in other words, inducing a person to enter the contract under false pretenses). In Madison the Court analyzed several counts based upon a modular home contract and so called “performance agreement” guarantying that the home would be installed by the manufacturer in the event that it’s installer failed to perform.

Reprinted courtesy of The Law Office of Christopher G. Hill

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

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The FDA’s recent authorization of the COVID-19 vaccine raises several legal and practical issues that employers may wish to consider as they prepare for widespread distribution.

One Shot to Get It Right: Navigating the COVID-19 Vaccine in the Workplace

Monday, January 18, 2021 — Natale DiNatale, Stephen W. Aronson, Britt-Marie K. Cole-Johnson, Emily A. Zaklukiewicz, Kayla N. West & Abby M. Warren - Construction Executive

The Food and Drug Administration has granted Emergency Use Authorization for Pfizer and Moderna’s COVID-19 vaccines. As COVID-19 cases continue to rise, employers across all industries may be considering whether to adopt a vaccination policy requiring vaccination as a condition of working and/or accessing the workplace or jobsite. The FDA’s recent authorization of the COVID-19 vaccine raises several legal and practical issues that employers may wish to consider as they prepare for widespread distribution and availability of the vaccine in 2021.

Mandating the COVID-19 Vaccine in the Workplace

The Equal Employment Opportunity Commission recently issued guidance suggesting that employers may mandate that employees receive the COVID-19 vaccination, subject to certain limitations. The EEOC has taken the position that administration of the COVID-19 vaccine does not implicate the Americans with Disabilities Act (ADA) because administration of the vaccine is not a medical examination. Under the EEOC’s guidance, employers, regardless of the industry, may require that employees receive the COVID-19 vaccine without having to justify that the mandate is job related and consistent with business necessity. Beyond that, construction employers should be aware of numerous issues and risks associated with mandatory vaccine policies.

Reprinted courtesy of Natale DiNatale, Stephen W. Aronson, Britt-Marie K. Cole-Johnson, Emily A. Zaklukiewicz, Kayla N. West & Abby M. Warren of Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.


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Attorneys Syed S. Ahmad and Adriana A. Perez analyze Performance Trans. Inc. v. General Star Indem. Co.

First Circuit Rules Excess Insurer Must Provide Coverage for Fuel Spill

Monday, January 18, 2021 — Syed S. Ahmad & Adriana A. Perez - Hunton Andrews Kurth

The First Circuit recently held that a “Special Hazard and Fluids Limitation Endorsement” was ambiguous and therefore there was excess coverage for a fuel spill that occurred after a tanker-truck overturned.

In Performance Trans. Inc. v. General Star Indem. Co., the First Circuit reversed the District Court’s grant of summary judgment in favor of General Star Indemnity Company. The District Court held that the excess policy General Star issued to Performance Trans. Inc. precluded coverage for a spill that resulted in the leaking of thousands of gallons of fuel. The District Court relied on the existence of a total pollution exclusion to bar coverage and held that the policy’s Special Hazards and Fluids Limitation Endorsement could not create an ambiguity that would afford coverage.

Reprinted courtesy of Syed S. Ahmad, Hunton Andrews Kurth and Adriana A. Perez, Hunton Andrews Kurth

Mr. Ahmad may be contacted at sahmad@HuntonAK.com
Ms. Perez may be contacted at pereza@HuntonAK.com


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Design-Build: Everything That Was Old Is New Again

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Islam Ahmad has represented all sides of construction and real estate cases, including owners, buyers, developers, and general contractors.

Wilke Fleury Welcomes New Civil Litigation Attorney

Monday, January 18, 2021 — Wilke Fleury LLP

Islam Ahmad represents clients on a broad range of civil ligation matters, with a focus on construction, real estate, and commercial disputes. He has represented all sides of construction and real estate cases, including owners, buyers, developers, and general contractors. He possesses superb legal research and writing skills that ensure no stone is left unturned that may improve the chances of victory for his clients.

Islam Ahmad has a sophisticated working background and a wealth of experience that make him ideal for taking on clients’ challenging cases and resolving them in their best interest. His intuition makes him versatile and capable of dealing with a wide range of issues. Islam is also capable of incorporating business performance factors into his legal advice by drawing from his prior experience as a business consultant. This comprehensive approach allows him and his clients to develop sound risk management strategies and business plans.

Reprinted courtesy of Wilke Fleury LLP
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Welcome to Las Vegas Sign

When complete, the MSG Sphere will be the world’s largest spherical structure.

AECOM Out as General Contractor on $1.6B MSG Sphere in Las Vegas

Monday, January 18, 2021 — Doug Puppel - Engineering News-Record

Developers of the $1.66-billion MSG Sphere in Las Vegas have removed AECOM as general contractor on the project and will bring construction management in-house for the 875,000-sq-ft entertainment venue, according to a Madison Square Garden Entertainment Corp. statement released Dec. 17.

Reprinted courtesy of Doug Puppel, Engineering News-Record

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

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Road blurred

Since overall construction costs are expected to decline 2% to 5% this year, pushing forward with smaller projects could be advantageous, says Tom Rossbach, HNTB.

Transportation Officials Make the Best of a Bumpy 2020

Monday, January 18, 2021 — Jim Parsons & Aileen Cho - Engineering News-Record

The year 2020 provided a bumpy budgetary ride for all modes of transportation, and some industry insiders don’t expect airport and transit ridership to return to pre-pandemic levels for years. Agencies are taking lessons learned, coupled with hopes for the new Biden administration, to carry on as best they can.

Reprinted courtesy of Jim Parsons, Engineering News-Record and Aileen Cho, Engineering News-Record

Ms. Cho may be contacted at choa@enr.com

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There are three areas of concern that deserve construction executives’ close attention.

Three Steps to a Safer Jobsite

Monday, January 18, 2021 — Deb Hilmerson - Construction Executive

Creating a conscious and robust safety culture is essential to the bottom line. A history of, and reputation for, stringent safety protocols will help contractors win more bids and reduce potential exposure to costly fines. According to OSHA, one out of every five worker deaths is construction-related. Non-fatal construction-related injuries are rising.

Now is not the time to be complacent, even for contractors with a clean, or relatively clean, safety record. Situations are changing and, in some cases, better, safer and more efficient options are becoming available. There are three areas of concern that deserve construction executives’ close attention.

Safety Glasses or Face Shield Concerns in the Wake of COVID-19

Facial and eye injuries can occur any time a worker is nailing, cutting, grinding, welding, working with concrete or handling hazardous chemicals. Now with COVID-19 protocols requiring face coverings, there is an unanticipated aggravation: fogged safety glasses.

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



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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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