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Construction workers looking at plans

The report, prepared by Parallel Architectural Group of Long Branch, found the South Tower did not suffer significant structural damage due to the collapse.

Engineering Report Finds More Investigation Needed of Balconies at New Jersey Condo

Monday, March 20, 2023 — Engineering News-Record

Press of Atlantic City

SEA ISLE CITY - An engineering report on the Spinnaker Condominiums' South Tower found that balconies directly beneath the one that collapsed last month, killing a worker, need further investigation before they are deemed safe for use.

Reprinted courtesy of Engineering News-Record

ENR may be contacted at enr@enr.com

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Coworkers punching each other

These approaches and their diligent execution by the parties during construction contribute far more to a successful project than anything lawyers and claims consultants can contribute in after-the-fact legal proceedings.

4 Ways to Mitigate Construction Disputes

Monday, March 20, 2023 — Bill Shaughnessy - ConsensusDocs

Resolving construction disputes in litigation (court or arbitration) can be expensive and may drag on for years. Most disputes could have been avoided, or at least mitigated, had the parties (both owners and contractors) identified contract risks during negotiations and been more proactive in communicating the risks during execution of the work. This article highlights four practical risk management approaches that help all parties focus on their mutual interest in close coordination and clear communication at the beginning of the project as well as throughout performance:

  • Identifying and allocating risks;
  • Accurate scheduling;
  • Clear project documentation and communication; and
  • Real-time dispute resolution.

The intent of these techniques is not to shift legal obligations or risks. Rather, the intent is to keep project personnel and project management for all the participants focused on communicating and working together, including responsibly confronting real problems to avoid or mitigate their impact. Allocating risks, scheduling, project documentation and communication, and real-time dispute resolution are independently relevant on a bilateral basis between the owner, designer, and the various contractors. These approaches and their diligent execution by the parties during construction contribute far more to a successful project than anything lawyers and claims consultants can contribute in after-the-fact legal proceedings.

Reprinted courtesy of Bill Shaughnessy, Jones Walker LLP (ConsensusDocs)

Mr. Shaughnessy may be contacted at bshaughnessy@joneswalker.com

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Man holding contract

The Privette doctrine is not the end all be all of landowner liability.

Court of Appeal: Privette Doctrine Does Not Apply to Landlord-Tenant Relationships

Monday, March 20, 2023 — Garret Murai - California Construction Law Blog

We’ve talked a fair bit about the Privette doctrine which provides for a rebuttable presumption that a hirer is not liable for workplace injuries sustained by employees of hired parties.

We’ve also talked about its two exceptions: (1) The Hooker exception which provides for liability if the hirer retained control over the work being performed, negligently exercised that control, and its negligent exercise of that control contributed to an employee’s injury; and (2) the Kinsman exception which provides for liability if the hirer knew or should have known of a concealed hazard, that the hired party did not know of and could not have reasonably discovered, and the hirer failed to warn the hired party of the hazard.

The Privette doctrine is not the end all be all of landowner liability, however, as discussed in Ramirez v. PK 1 Plaza 580 SC LP, 85 Cal.App.5th 252 (2022).

Reprinted courtesy of Garret Murai, Nomos LLP

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

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Establishing and Developing Next-Gen Construction Leaders

March 20, 2023 — Construction Executive

While a downturn in economic activity is rarely welcome news in any field, construction may soon have more bandwidth to tackle long-simmering, high-stakes challenges that have plagued the industry for years. A potential slowdown provides an opportune time for every firm to take a hard look at its leadership pipeline.

Much of the industry focus in recent years has been the shortage of construction workers to fill jobs to keep up with construction expansion needs, as the Home Builders Institute estimated a shortfall of 2.2 million workers between now and 2024. That problem still needs attention and hardly exists in a vacuum from management deficits—but without question, leadership needs for the near and long term in construction have not gotten the consideration they deserve.

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

Ninth Circuit Certifies Question to California Supreme Court on COVID-19 Claim

March 20, 2023 — Tred R. Eyerly - Insurance Law Hawaii

The Ninth Circuit certified a question to the California Supreme Court asking whether the presence of COVID-19 constitutes "direct physical loss to property.'" Another Planet Entertainment, LLC v. Vigilant Ins. Co., 2022 U.S. App. LEXIS 35763 (9th Cir. Dec. 28, 2022).

Another Planet was an event promoter and venue operator that owned event venues in California and Nevada. It held a commercial property policy with Vigilant Insurance Company. After the COVID-19 pandemic began in early 2020, government closure orders forced Another Planet to suspend its operations, close its venues and cancel events, resulting in substantial financial losses. Another Planet submitted a claim to Vigilant. After the claim was denied, Another Planet filed suit

CityLab Daily: What the SVB Collapse Means for Affordable Housing

March 20, 2023 — Sri Taylor - Bloomberg

When Silicon Valley Bank shut down on Friday, it sent politicians and executive scrambling to contain shockwaves through California’s broader economy. The collapse caused massive losses beyond the tech and startup scenes; the bank was also a key lender for other industries, including affordable housing development. In San Francisco, construction has stalled, for example, on The Kelsey Civic Center — a 112-unit low-cost housing project that was supposed to break ground this week with a $52 million loan from SVB.

ALFA International 2023 Insurance Roundtable

March 20, 2023 — Beverley BevenFlorez – CDJ Staff

Hosted by the Insurance Practice Group, this three-day event will “explore new ways to combat nuclear verdicts, including how to present insurance companies and their decision-makers in the modern courtroom.” They will also “discuss modern issues and tools to prevent and respond to cyber security risks, first-party property appraisals and overlapping concerns with additional insureds and indemnity contracts.” Kristian Moriarty of Haight Brown & Bonesteel, LLP will be speaking on the panel, “Shifting the Risk: Additional Insureds and Indemnity” on June 1st, 2023.

May 31st-June 2nd, 2023
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Money coming out of wallet

Because of the surety’s several liability under the bond, there may be solvency issues with the principal or contractual reasons that, strategically, make much more sense to exclude the principal from the action.

Surety’s Several Liability Under Bonds

Monday, March 20, 2023 — David Adelstein - Florida Construction Legal Updates

When a payment or performance bond is issued on behalf of its bond-principal, the surety is jointly and severally liable with its bond-principal. This means the surety has several liability under the bond, i.e., you don’t need to pursue the principal of the bond to pursue liability under the bond, which is a separate written intrument. Thus, if you are claiming damages of $500,000, by way of example, you can sue both the principal and surety under the bond, you can ONLY sue the principal under the bond (which is rarely practical), or you can ONLY sue the surety under the bond (which, oftentimes, is very practical). In many instances where I am pursuing a bond claim on behalf of a client, particularly a payment bond claim, I only sue the surety and do not sue the bond-principal unless there are certain strategic reasons in doing so. This is because of the surety’s several liability under the bond and there may be solvency issues with the principal or contractual reasons that, strategically, make much more sense to exclude the principal from the action.

In MJM Electric, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2023 WL 2163087 (M.D.Fla. 2023), an electrical subcontractor was hired to perform electrical work by the prime contractor. The prime contractor had a payment bond. The project was delayed for two years. The electrical subcontractor claimed the prime contractor failed to compensate it for significant delays and out of scope work.

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

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

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Reject Approve buttons

The project has been on hold for two years for a federal civil rights investigation into its impacts on surrounding neighborhoods.

Feds OK $9B Houston Highway Project After Two-Year Pause

Monday, March 20, 2023 — James Leggate - Engineering News-Record

The Federal Highway Administration has agreed to let a $9-billion Texas highway reconstruction project proceed after a two-year pause over concerns linked to the project’s potential impact on communities along the route, including a lawsuit filed by Harris County to halt contracting, pending a new environmental impact review.

Reprinted courtesy of James Leggate, Engineering News-Record

Mr. Leggate may be contacted at leggatej@enr.com

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Glasses lying on Insurance Coverage document

The lender-placed policy clearly did not name Plaintiffs as insureds, additional insureds, and did not indicate that Plaintiffs were third-party beneficiaries.

Hurricane Damage Not Covered for Home Owner Not Named in Policy

Monday, March 20, 2023 — Tred R. Eyerly - Insurance Law Hawaii

The court granted the insurer's motion to dismiss because, although there was coverage for the property under the mortgagee's policy, the home owner was not a named or additional insured under the policy. Cart v. Great Am. Assur. Co., 2023 U.S. Dist. LEXIS 6207 (W.D. La. Jan. 12, 2023).

Plaintiffs' property was damage by Hurricanes Laura and Delta. Because Plaintiff failed to maintain homeowner's hazard insurance subject to the mortgage, Rushmore Management Services procured a force-placed lender policy on the property through Great American. Plaintiffs filed suit asserting breach contract claims. Great American moved to dismiss.

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

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

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Coffee cup next to tablet showing chart

The post explores the cooling housing market and plummeting mortgage applications, potential tax-savings as a result of the 2022 Inflation Reduction Act (IRA), and new developments in the multifamily sector.

Real Estate & Construction News Round-Up (03/08/23) – Updates on U.S. Mortgage Applications, the Inflation Reduction Act, and Multifamily Sector

Monday, March 20, 2023 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

This week’s round-up explores the cooling housing market and plummeting mortgage applications, potential tax-savings as a result of the 2022 Inflation Reduction Act (IRA), and new developments in the multifamily sector.

  • Rising interest rates are impacting affordability and cooling the U.S. housing market, driving mortgage applications to lowest levels in decades. (Nicole Friedman, The Wall Street Journal)
  • A number of companies are going all out to entice workers back to the office, and as new data on New York City emerges, upscale offices might help do the trick. (Emily Peck, Axios)
  • For real estate developers and investors across the U.S., tax-saving opportunities are popping up as a result of the Inflation Reduction Act of 2022. (David Harlan & Laura Theiss, Dallas Business Journal)
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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Construction workers injured on site

The claim involving an accident that occurred in the basement of a house under construction.

New York Office Secures Appellate Win in Labor Law 240(1) Fall in Basement Accident Case

Monday, March 20, 2023 — Nicholas P. Hurzeler & Gregory S. Katz - Lewis Brisbois

New York, N.Y. (March 14, 2023) – New York Appellate Partner Nicholas P. Hurzeler and Managing Partner Gregory S. Katz recently prevailed when the New York Appellate Division, Second Department affirmed the dismissal of a Labor Law 240(1) claim involving an accident that occurred in the basement of a house under construction. Balfe v. Graham, ___ AD3d ___ (2d Dept. 2023), decided March 8, 2023.

In this matter, the plaintiff was installing ductwork in the basement of a house that had been stripped down to its foundation when he stepped backwards into an open hole that had been dug out of a concrete floor to accommodate the installation of an ejector pump. The lower court dismissed the plaintiff’s claim based on Labor Law 240(1), and he appealed. The plaintiff argued that he fell into an unprotected opening that should have been covered or barricaded. He further claimed the accident qualifies as a typical “falling worker” case within the scope of Labor Law 240(1), citing the depth of the hole needed to accommodate the ejector pump, and the size of the pump. Under the case law, a worker who falls into an uncovered opening on a construction site will typically be covered by Labor Law 240(1).

Reprinted courtesy of Nicholas P. Hurzeler, Lewis Brisbois and Gregory S. Katz, Lewis Brisbois

Mr. Katz may be contacted at Greg.Katz@lewisbrisbois.com
Mr. Hurzeler may be contacted at Nicholas.Hurzeler@lewisbrisbois.com


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Businessman holding hands up

The Appeals Court of Massachusetts (Appeals Court) considered whether the lower court properly held that the plaintiff’s breach of contract and indemnification claims were time-barred by the statute of repose because they sounded in tort.

A Tort, By Any Other Name, is Just a Tort: Massachusetts Court Bars Contract Claims That Sound in Negligence

Monday, March 20, 2023 — Gus Sara - The Subrogation Strategist

In University of Massachusetts Building Authority v. Adams Plumbing & Heating, Inc., 2023 Mass. App. Unpub. LEXIS 28, 102 Mass. App. Ct. 1107, the Appeals Court of Massachusetts (Appeals Court) considered whether the lower court properly held that the plaintiff’s breach of contract and indemnification claims were time-barred by the statute of repose because they sounded in tort. The Appeals Court held that while the six-year statute of repose only applies to tort claims, they can also bar claims for breach of contract and indemnification if they sound in tort. The Appeals Court affirmed the lower court’s ruling, finding that the plaintiff’s breach of contract and indemnification claims were just negligence claims disguised as non-tort claims.

In 2013 and 2014, the University of Massachusetts (UMass) retained various contractors to renovate the dining hall for one of its campus buildings, which included the installation of new ductwork for the kitchen’s exhaust system. The dining hall opened for service in September 2014. In the Spring of 2018, it was discovered that the ductwork for the kitchen had collapsed. Further investigation revealed other deficiencies with the exhaust system. On December 1, 2020, UMass filed a lawsuit against various contractors, asserting negligence, breach of contract, and indemnification. The breach of contract claims alleged breach of express warranties.

Reprinted courtesy of Gus Sara, White and Williams

Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Inside A Sustainable Power Plant With A Ski Slope On Its Roof | Unique Spaces | Architectural Digest

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Policy on ripped paper

This article analyzes Am. Guarantee & Liability Ins. Co. v. 51 Roses Mill LLC.

Connecticut Federal District Court Follows Majority Rule on Insurance Policy Anti-Assignment Clauses

Monday, March 20, 2023 — Saxe Doernberger & Vita, P.C.

A recent decision by the United States District Court for the District of Connecticut further confirms that Connecticut courts follow the majority rule that contractual anti-assignment clauses do not bar assignment of an insured’s claim after the loss occurred.1

The September 2022 decision in Am. Guarantee & Liability Ins. Co. v. 51 Roses Mill LLC arose out of a fire that destroyed a property under contract for sale. At the time of the fire, the property was owned by Bridge33 Capital LLC (“Bridge33”), insured by American Guarantee & Liability Insurance Company (“American Guarantee”), and under contract for sale to 51 Roses Mill LLC (“51 Roses”). After the fire, Bridge33 assigned its insurance claim to 51 Roses. American Guarantee filed suit seeking a declaratory judgment that the assignment was invalid, or that, if it was valid, 51 Roses could only recover under the actual cash value, rather than the replacement cost value, of the lost property. 51 Roses brought counterclaims for breach of contract and bad faith and sought a declaratory judgment that it was entitled to replacement cost value under the policy.

Reprinted courtesy of Saxe Doernberger & Vita, P.C.

Saxe Doernberger & Vita, P.C. may be contacted at coverage@sdvlaw.com

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California flag on globe

Officials said the Pajaro River's levee breach is about 100 feet (30.48 meters) wide.

Storm Breaches California River's Levee, Thousands Evacuate

Monday, March 20, 2023 — Associated Press - Engineering News-Record

WATSONVILLE, Calif. (AP) — A Northern California agricultural community famous for its strawberry crop was forced to evacuate early Saturday after the Pajaro River’s levee was breached by flooding from a new atmospheric river that pummeled the state.
Across the Central Coast's Monterey County , more than 8,500 people were under evacuation orders and warnings Saturday, including roughly 1,700 residents — many of them Latino farmworkers — from the unincorporated community of Pajaro.

Reprinted courtesy of Engineering News-Record

ENR may be contacted at enr@enr.com

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Businessman pointing at red digital lock

The façade is one of the most complex and costly aspects of a building to construct and inspect.

How Technology Reduces the Risk of Façade Defects

Monday, March 20, 2023 — Ori Aphek - Construction Executive

The shell of the building is an onlooker’s first impression and crafts the architectural aesthetic, but it also plays a crucial role in enabling energy efficiency and protecting against the elements. Because façades are in direct contact with the elements, issues with water intrusion are the most common problem and the costliest to remedy, with anywhere from 30% to 70% of lawsuits related to water intrusion, half of it through the façade. Additionally, improperly installed façades pose significant safety risks because unsecured parts can fall and hit people below.

All these factors contribute to the façade being one of the most complex and costly aspects of a building to construct and inspect, making up 205 of the total project cost. Installing these systems correctly the first time is the most effective way to mitigate these threats. Teams should utilize data-informed technology that ensures plan adherence, reducing risk and avoiding errors during installation.

The Challenges of Façade Installation
Façade installation and subsequent inspection are inherently challenging, particularly for high-rise buildings. When performing post-installation verification manually, inspectors must review every element, joint by joint, window by window, stone by stone and brick by brick, which can take months to complete. Inspections of the entire building system are limited by this process, as inspectors can only access one portion of the building façade at a time and often have to inspect from indoors, on balconies or at the ground level, which doesn’t paint a complete picture. As a result, teams typically only perform spot checks on the façade and are rarely inspected to their fullest. This leaves many installation errors and defects, which serve as ticking bombs for future water intrusion or safety hazards.

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



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3D blue key from keyboard

If it can scale, the 3D-printing process promises to deliver energy-efficient and climate-resilient homes that can be built faster, in novel designs and with minimal construction waste.

The World’s Largest 3D-Printed Neighborhood Is Here

Monday, March 20, 2023 — Todd Woody - Bloomberg

Amid the tech boom-fueled sprawl in Austin, Texas, Wolf Ranch at first appears to be another colorfully named but architecturally unimaginative suburban subdivision. Until, that is, you turn a corner and stumble across giant robots building homes resembling waves frozen in concrete.

This 100-house addition to the 2,500 homes planned for Wolf Ranch is called “the Genesis Collection,” and as the world’s largest 3D-printed community, it is indeed sui generis. A collaboration between Lennar Corp., the US’s second-biggest home builder, and 3D-printing startup Icon, Genesis represents perhaps the most significant innovation in residential construction in decades. If it can scale, 3D-printed construction promises to deliver energy-efficient homes that can be built faster and more affordably, in novel designs and with minimal waste. The concrete structures are also more resilient to increasingly intense climate-driven hurricanes, wildfires and heat waves.

“I think we'll look back and say this was a pretty pivotal moment in the history of construction,” says Jason Ballard, Icon’s cowboy hat-wearing co-founder and chief executive officer. “I do think 3D printing and robotic construction are necessary to end the global housing crisis.”

Reprinted courtesy of Todd Woody, Bloomberg
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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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