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New Maui Fire Lawsuit Against HECO Filed by Company Shareholder
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Debris removal alone is expected to take nearly a year, according to Green.
Maui Wildfire Cleanup Could Cost $1B and Take One Year
Monday, September 18, 2023
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James Leggate - Engineering News-Record
Hawaii Gov. Josh Green and Sen. Brian Schatz (D-Hawaii) have estimated at $1 billion the cost of cleanup after the Maui wildfires—which started Aug. 8 and killed at least 115 people and destroyed more than 2,200 structures. Officials planning the rebuilding of the parts of West Maui devastated by the wildfires are emphasizing safety and residents’ wishes over speed.
Reprinted courtesy of James Leggate, Engineering News-Record
Mr. Leggate may be contacted at leggatej@enr.com
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A liquidated damage clause in a construction contract is a customary way for the parties to deal with the possibility of delay in the completion of a project and the potential losses flowing from the delay.
The Clock is Ticking: Construction Delays and Liquidated Damages
Monday, September 18, 2023
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Tiffany Harrod - ConsensusDocs
With the on-going shortage of construction workers in the industry and other factors ranging from weather to procurement problems, the threat of project delay is real. When a contract contains a liquidated damages clause for assessing project delays, real financial consequences for contractors can result. Courts have long allowed parties to apportion contractual risks as they deem appropriate especially in the commercial context where the parties are considered to be sophisticated even if their bargaining power is not equal. Liquidated damage provisions such as those for delay that are found in construction contracts are not unusual but they must be crafted in such a way as to be enforceable and not violate public policy.
A liquidated damage clause in a construction contract is a customary way for the parties to deal with the possibility of delay in the completion of a project and the potential losses flowing from the delay.[1] In their most basic form, the party in breach, which is more often than not the contractor, is obligated to pay the non-breaching party, usually the project owner, some fixed sum of money for the period that exceeds the designated completion date that was agreed upon in advance and memorialized in the contract. (It is after all no secret that these provisions are primarily for the owner’s benefit.) The non-breaching party is then compensated for losses associated with the delay without the time and expense of having to prove in either a civil suit or an arbitration proceeding what the actual damages are. This option is particularly attractive to project owners because the liquidated damages assessment can simply be withheld from payments owed to the contractor once the agreed-upon completion date has been passed.
Reprinted courtesy of Tiffany Harrod, Peckar & Abramson
Ms. Harrod may be contacted at tharrod@pecklaw.com
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The proposals in this alert should constitute the first step toward cleaning up and eliminating the unfortunate P2P trend in litigation.
The Rise Of The Improper P2P Tactic
Monday, September 18, 2023
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Tim Capowski - Kahana Feld
About a year ago a colleague brought my attention to the increase in irrelevant, inflammatory, scandalous, and improper language in plaintiff pleadings in catastrophic injury, fire, and death cases. Since that time, the problem has only intensified around the country. The purpose of this improper practice is multifaceted, and has nothing to do with properly or sufficiently pleading a lawsuit. Primarily, it is designed to create ready-made and targeted sensational content for news organizations to publish and re-publish (and for news bots to disseminate) to poison the future jury pool. The lay public interprets this content as imbued with credibility not only because it emanates from sworn or verified court filings but because it carries the further patina afforded by multiple news sources’ reliance on it. This method of pleading-to-press (hereinafter “P2P”) publicity attack carries far more weight than mere press conference allegations. Ironically, P2P is demonstrably wrong because a plaintiff counsel making the identical assertions at a press conference or via a press release during litigation would be subject to libel claims (litigation privilege does not attach), gag orders, and professional misconduct referrals in most jurisdictions. Just like the Reptile attacks are simply a repackaged variant of the long precluded “Golden Rule” tactic, the P2P attacks are nothing more than a very clever but highly improper way to circumvent the press conference publicity impropriety; the defense bar and judiciary simply haven’t caught up with it yet.
Reprinted courtesy of Tim Capowski, Kahana Feld
Mr. Capowski may be contacted at tcapowski@kahanafeld.com
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How to Encourage Cross-Generational Collaboration in Construction
September 18, 2023 — Lauren Weinbaum - Construction Executive
Today’s workforce is more complex than ever. For the first time in history, the workforce consists of employees from four very different age groups: Baby Boomers, Generation X, Millennials and Generation Z. With these groups, it’s possible to have a more than 50-year age gap between employees. The construction industry—like many other industries—is no stranger to this multigenerational workforce.
Reprinted courtesy of Lauren Weinbaum, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
The Heated Debate Over the California Department of Insurance’s Heat Community Policy and Parametric Underwriting
September 18, 2023 — Scott P. DeVries & Jae Lynn Huckaba - Hunton Insurance Recovery Blog
Extreme weather events—such as heat waves, wildfires, hurricanes, and tornadoes—may create major protection gaps for insureds. In California, rising temperatures and massive heat waves have led the California Department of Insurance (the “Department”) to rethink risk solutions and insurance programs that protect the state’s communities from the risks associated with extreme heat. While the Department’s proposed solution applies only to coverage for local governments, Tribes, and public health agencies, it is a “hot” topic among many Californians, as insurance professionals and policyholders debate the Department’s proposed approval of parametric insurance.
Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth and Jae Lynn Huckaba, Hunton Andrews Kurth
Mr. DeVries may be contacted at sdevries@HuntonAK.com
Ms. Huckaba may be contacted at jhuckaba@HuntonAK.com
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Construction Outlook and Implications for the Banking Sector
September 18, 2023 — Global Specialty Insights Center Staff - The Hartford
In our last update on the residential construction market in September 2022, the Global Specialty Insights Center flagged a likely slowdown and weakness in housing. Since then, our outlook has turned slightly more optimistic. Today, we'll also cover the nonresidential construction market before discussing the implications for regional banks.
Residential Construction Outlook
Residential construction grew at a healthy rate following the global financial crisis.
Up until the onset of COVID-19, the housing market and residential construction were showing healthy and steady improvements. In August 2010, the U.S. transacted 3.962 million housing units on an annualized basis. This included 282,000 new home sales (construction) and 3.68 million existing homes. The average price of a new home was $268,800, and an existing home was $177,300.
2020 Residential Code of New York State Webinar
September 18, 2023 — Beverley BevenFlorez – CDJ Staff
This one-day seminar presented by HalfMoon Education Inc., will cover Development and Enforcement of International Residential Code, Building Planning and Building Envelope, Energy Efficiency, and Mechanical, Fuel, Plumbing and Electrical Systems. Attendees will gain proficiency in the following learning objectives: Comply with the International Residential Code as adopted in New York; describe requirements for wind resistance and fire-resistant construction; meet requirements for foundations, walls, roofs and garages; comply with requirements for energy-efficient building envelopes; meet requirements for ventilation systems, fuel gas systems and appliances; and explore code compliance for pools, spas and hot tubs.
October 25th, 2023
Virtual Event
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The insured homeowners had two claims: a 2016 ceiling collapse and a loss caused by Hurricane Irma in 2019.
Jury's Verdict for Loss Caused by Collapse Overturned
Monday, September 18, 2023
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Tred R. Eyerly - Insurance Law Hawaii
The Florida Court of Appeal overturned the jury's verdict findng loss caused by collapse. Universal Prop. & Cas. Ins. Co. v. Caboverde, 2023 Fla. App. LEXIS 4474 (Fla. Ct. App. June 28, 2023).
The insured homeowners had two claims. One was a 2016 ceiling collapse; the second was loss caused by Hurricane Irma in 2019. The homeowners' policy covered collapse defined as "an abrupt falling down or caving in of a building or any part of a building with the result that the building . . . cannot be occupied for its intended purpose." Collapse had to be caused by, among other things, decay or insect damage that was hidden from view.
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com
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The prevalence of PFAS, short for per- and polyfluoroalkyl substances, is a real and growing concern.
US Moves to Come Clean on PFAS in Drinking Water
Monday, September 18, 2023
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Pam McFarland, Debra K. Rubin & Mary B. Powers - Engineering News-Record
Congress has allocated billions of dollars to address contamination caused by the ubiquitous class of “forever” chemicals known as PFAS—with billions more also earmarked in recent legal settlements with manufacturers—but drinking water managers, construction sector experts and other stakeholders say the true cost of cleanup could be much higher.
Reprinted courtesy of Pam McFarland, Engineering News-Record, Debra K. Rubin, Engineering News-Record and Mary B. Powers, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
Ms. Rubin may be contacted at rubind@enr.com
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Delay claims might be common in the construction industry, but a customer’s claim must meet specific conditions to be successful.
When Can Customers Sue for Delays?
Monday, September 18, 2023
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Scott L. Baker - Los Angeles Litigation Blog
Construction projects are subject to many internal and external factors. Due to this, delays are not an uncommon occurrence. Whether delays are the result of bad weather conditions or supply chain issues, contractors and their clients cannot control every aspect of the project.
Delay issues are very common construction disputes. Therefore, new and experienced contractors alike need to know when their clients may have a reason for a delay claim.
2 particular types of delays that pose a risk
Common obstacles that contractors faced during the height of the COVID-19 global pandemic involved supply chain issues. The lack of materials put various projects on hold across California and the country. This widespread issue was out of contractors’ and clients’ control, meaning they were excusable delays.
Reprinted courtesy of Scott L. Baker, Baker & Associates
Mr. Baker may be contacted at slb@bakerslaw.com
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The only way to adequately prepare for and avoid residential construction disputes is to take steps before any work begins, and in many cases, before signing the construction contract.
Preparing For and Avoiding Residential Construction Disputes: For Homeowners and Contractors
Monday, September 18, 2023
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Christopher G. Hill - Construction Law Musings
For this week’s Guest Post Friday here at Construction Law Musings, we welcome a great friend. Scott Wolfe Jr. (@scottwolfejr)is a construction attorney in Louisiana, Washington and Oregon, and is the founding member of the construction practice Wolfe Law Group. He authors the Construction Law Monitor. He is also the founder of the mechanic lien and preliminary notice filing service, Zlien, and the author of its Construction Lien Blog.
Residential construction disputes come in all shapes and sizes, but very typically have one thing in common: they can get very nasty.
This is understandable, especially in today’s economy. The homeowner is spending hard-earned money on something very personal to them, their home. They want it done right. The contractor is working on really tight margins, and with a diligent client.
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com
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Break the cycle and embrace this most obvious reform: don’t include a requirement for an exhibit list in your next case management order.
OPINION: Stop Requiring Exhibit Lists!
Monday, September 18, 2023
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Todd Heffner - The Dispute Resolver
You are conducting the final hearing of a high-dollar construction arbitration. Opposing counsel hands you the next document that counsel plans to use in questioning the witness on the stand. You notice that the document is bates stamped but has no exhibit number. So, you quickly consult opposing counsel’s exhibit list and – gasp – you find that the document is not on the list. What do you do? Do you object?
Assuming this is not your first construction arbitration hearing, you do not object. Why? Because your objection would be futile. Construction arbitrators simply do not exclude evidence on the basis that it does not appear on an exhibit list. (Evidence not produced in discovery or otherwise previously provided might be a different case.) In an informal poll of a dozen construction lawyers conducted by this author, not one reported evidence being excluded solely because it did not appear on an exhibit list. This remained true even when the applicable case management order purported to prohibit the introduction of evidence not on an exhibit list. Thus, to be used in an arbitration hearing, documents must appear on an exhibit list, unless they don’t, in which case you can use them anyway. So far, so pointless.
Reprinted courtesy of Todd Heffner, Troutman Pepper
Mr. Heffner may be contacted at todd.heffner@troutman.com
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Robotics is included by many observers as part of the Fourth Industrial Revolution.
Robots on Construction Sites Are Raising Legal Questions
Monday, September 18, 2023
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Peter Sheridan - Construction Executive
Mark Twain said that “good decisions come from experience. Experience comes from making bad decisions.” Aesop warns “be careful what you wish for….” But is there a good decision to be made now to employ robots on your next project? There is not a lot of experience to help us make that decision, and the robotic laborer that does not tire or need breaks or desire a raise or promotion looks like an option we might all wish for when planning our next project.
Are there pitfalls, traps for the unwary? Always. Spotting them is the trick. After a brief glimpse into the past for appropriate context, there are a few traps that need to be considered.
Reprinted courtesy of Peter Sheridan, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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San Francisco's Millennium Tower Stabilized, But Still Tilting
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Pillsbury's Construction & Real Estate Law Team covers recent industry news.
Real Estate & Construction News Roundup (08/08/23) – Buy and Sell With AI, Urban Real Estate Demand and Increasing Energy Costs
Monday, September 18, 2023
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Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, we look at AI’s ability to buy and sell real estate, good news from the Labor Department for federally contracted construction workers, the continued promise of proptech, and more!
- With economic hardships for urban commercial real estate, the suburbs may be where the next opportunities lie. (Larry Goodman, Forbes)
- Being able to better meet tenant needs and alleviating the redundant, time-consuming tasks continue to drive interest in, and use of, proptech in the real estate sector. (Kerri Davis, Forbes)
- Imagine using AI to determine which real estate properties to buy and sell. A former real-estate analyst has built a tool for this exact task. (Kelsey Neubauer, Business Insider)
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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Although it's subject to appellate review, Held is the first case to recognize that youths have standing to claim violation of constitutional rights as a result of climate change.
Montana Trial Court Holds That Youths Have Standing to Bring Constitutional Claims Against State Government For Alleged Climate Change-Related Harms
Monday, September 18, 2023
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Paul A. Briganti & Julia Castanzo - White and Williams LLP
On August 14, 2023, in a “landmark” ruling, a Montana state court held that youth plaintiffs had standing to assert constitutional claims against the State of Montana, its governor and state agencies for “ignoring” the impact of greenhouse gas (GHG) emissions on climate change. Held v. State of Montana, Cause No. CDV-020-307 (1st Judicial Dist. Ct., Lewis & Clark Cty., Mt.). Agreeing with the plaintiffs, the court concluded that a limitation in the Montana Environmental Policy Act (MEPA), which prohibited the state from considering climate impacts when issuing permits for energy projects, violated the plaintiffs’ right under the state constitution to a “clean and healthful environment.”
MEPA, enacted in 1971, states that its purposes include “provid[ing] for the adequate review of state actions in order to ensure that . . . environmental attributes are fully considered by the legislature in enacting laws to fulfill constitutional obligations . . . .” In 2011, the legislature amended the statute to curtail the scope of environmental reviews. Under the so-called MEPA limitation, Montana agencies cannot consider “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.” Mont. Code Ann. § 75-1-201(2)(a). In 2023, the legislature added a provision that eliminated equitable remedies (i.e., the ability to “vacate, void, or delay a lease, permit, license, certificate, authorization, or other entitlement or authority”) for litigants who “claim that [an] environmental review is inadequate based in whole or in part upon greenhouse gas emissions and impacts to the climate in Montana or beyond Montana’s borders . . . .” Id. § 75-1-201(6)(a)(ii).
Reprinted courtesy of Paul A. Briganti, White and Williams LLP and Julia Castanzo, White and Williams LLP
Mr. Briganti may be contacted at brigantip@whiteandwilliams.com
Ms. Castanzo may be contacted at castanzoj@whiteandwilliams.com
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Best Lawyers® recognizes the top 5% of attorneys in private practice throughout the United States.
Nomos LLP Partner Garret Murai Recognized by Best Lawyers®
Monday, September 18, 2023
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Garret Murai - California Construction Law Blog
Nomos LLP Partner Garret Murai has been recognized by Best Lawyers® in its 30th edition of The Best Lawyers in America® in the area of Construction Law for 2024. This is the the first year Garret has been recognized by Best Lawyers®.
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com
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TLSS successfully argued that the slip-and-fall on a walkway poorly maintained by the lessor did not arise out of plaintiff’s operations or work as a financial consultant.
Traub Lieberman Partner Eric D. Suben and Associate Laura Puhala Win Summary Judgment in Favor of Insurer, Determining it has No Duty to Defend
Monday, September 18, 2023
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Traub Lieberman
In a declaratory judgment action brought before the United States District Court, Eastern District of New York, Traub Lieberman Partner Eric D. Suben and Associate Laura Puhala won summary judgment in favor of Plaintiff Foremost Signature Insurance Co. (“Foremost”), obtaining a declaration that it has no obligation to defend or indemnify Defendant 170 Little East Neck Road LLC (“Little East”) in an underlying state court personal injury action.
In the underlying action, a self-employed financial advisor leasing a suite for her business on the second floor of the property at 170 Little East Neck Road (the “Property”), sued Little East in New York Supreme Court, Suffolk County, alleging injuries resulting from slipping on ice on a walkway near an exterior door at the Property.
Reprinted courtesy of Eric D. Suben, Traub Lieberman and Laura S. Puhala, Traub Lieberman
Mr. Suben may be contacted at esuben@tlsslaw.com
Ms. Puhala may be contacted at lpuhala@tlsslaw.com
Reprinted courtesy of Traub Lieberman
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