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Florida congresswoman said other, older buildings could fall.

Condo Collapse Spurs Hometown House Member to Demand U.S. Rules

Monday, July 19, 2021 — Parker Purifoy - Bloomberg

A Florida congresswoman called for stricter federal building-safety standards on Thursday to prevent a repeat of the condominium collapse that killed at least 60 people and left dozens more missing in her state.

Representative Debbie Wasserman Schultz, a Democrat whose congressional district includes the condo development in Surfside, said more buildings could collapse or break down as they age and the federal government needed to have a “minimum floor” of safety requirements.

“We do have standards that are tangentially related at the federal level and so I do think it’s important to look into what standards should be adopted at the national level, at a minimum, because this is a tragedy of epic proportions,” she said on Bloomberg Television’s “Balance of Power” with David Westin. “We can’t allow this to ever happen again.”

Reprinted courtesy of Parker Purifoy, Bloomberg

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Red block amidst white blocks

The building owner sued in May 2015 for damages for construction defects from the construction.

California Federal Court Finds a Breach of Contract Exclusion in a CGL Policy Bars All Coverage for a Construction Defect Action

Monday, July 19, 2021 — Robert Dennison - Traub Lieberman

The Southern District of California published a decision in May 2021 in Associated Industries Ins. Co. v. Mt. Hawley Ins. Co., 2021 WL 1921016 (S.D. Cal. 5/12/21) concerning the scope of a breach of contract exclusion in a general liability insurance policy as applied to a construction defect action.

The suit was filed by Associated Industries Insurance Company against Mt. Hawley Insurance Company for equitable contribution for amounts spent to defend and indemnify the parties co-insured, referred to as JGCI in the decision. JGCI agreed to build a building for a third party pursuant to a written construction contract. The City of Davis issued a certificate of occupancy for the building on May 6, 2005. The City’s permits stated the building was final on that date. Mt. Hawley issued the first of several annual general liability insurance policies in September 2005.

Reprinted courtesy of Robert Dennison, Traub Lieberman

Mr. Dennison may be contacted at rdennison@tlsslaw.com

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Attorney Tred R. Eyerly analyzes Stewart v. Metropolitan Lloyds Ins. Co. of Texas.

Insured's Failure to Prove Entire Collapse of Building Leads to Dismissal

Monday, July 19, 2021 — Tred R. Eyerly - Insurance Law Hawaii

The Fifth Circuit affirmed the district court's dismissal of the insured's claim for damage to her home caused by collapse. Stewart v. Metropolitan Lloyds Ins. Co. of Texas, 2021 U.S. App. LEXIS 14221 (5th Girl May 13, 2021).

One evening, the insured was awakened by a loud bang that shook her house. The next morning, she noticed the damage to her home, cracked sheetrock and sunken floors. She cut a hole through her floor and discovered that a couple of joists below her subfloor had broken and fallen away. The insured filed a claim with Metropolitan.

Metropolitan hired an expert who found broken and deteriorated floor joists, deteriorated floor decking, walls not plumb and gaps in the wall-to-ceiling interface. It was determined that the rot in the floor joists and subfloor decking were caused by a combination of termite damage and exposure to moisture over the lifespan of the structure, resulting in the broken floor joists and unlevel floors. The insured's own expert agreed that termite damage and wood rot were the cause of the foundation collapse failure.

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

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

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Be Prepared With Emergency Response Planning

July 19, 2021 — Alvin Paniagua - Construction Executive

Given the nature of the work, construction sites pose inherent safety risks. In fact, OSHA estimates that nearly a quarter of all work-related fatalities occur in the construction industry. But oftentimes the first risks that come to mind are equipment-related accidents and personal injuries.

While these may be top-of-mind concerns, it’s particularly important to be proactive about emergency response planning in the spring and summer. As temperatures warm, weather conditions such as tornadoes and flash flooding can cause sudden, serious threats anywhere in the country—while some regions are prone to specific threats like hurricanes and wildfires.

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

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Claims that COVID-19 Present on Property Survive Motion to Dismiss

July 19, 2021 — Tred R. Eyerly - Insurance Law Hawaii

Plaintiffs successfully argued against a motion to dismiss by alleging COVID-19 was present on their premises and required repairs and alterations to their properties. Legacy Sports Barbershop LLC v. Cont'l Cas. Co., 2021 U.S. Dist. LEXIS 102545 (N. D. Ill. June 1, 2021).

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

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White House Meets Builders, Unions on Home Shortage

July 19, 2021 — Eric Martin - Bloomberg

The White House held a meeting with representatives from across the homebuilding industry on Friday as President Joe Biden seeks to address a housing supply shortage that’s spurring a record increase in home prices.

Top Biden administration officials sat down with representatives from across the supply chain, including builders, housing advocates, lumber companies, real estate firms, loggers and labor unions, the White House said in a statement. Builders cite high materials prices, scarce supplies and a dearth of skilled workers as ongoing challenges in the race to complete new homes.

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AGC’s Three Part Webinar Series: Claims, Change, Scheduling, Close Out--OH MY!

July 19, 2021 — Beverley BevenFlorez – CDJ Staff

Associated General Contractors of America (AGC) will present a three-part webinar series. The first part, on July 21st, will cover Change Orders and Claims. Then next month, on August 18th, the second part will discuss Scheduling. The series will conclude on September 14th with Project Close-Out/Backcharges. Speakers include Melanie Ford of the Construction Owners Association of America, Phil Beck of Smith, Currie & Hancock LLP, and David Little of the Gallegos Corporation.

July 21st, August 18th, & September 14th, 2021
Virtual Events

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Builders Standard of Care Expert Witness and Consulting General Contractor area area area

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An occurrence will be deemed to occur when the accident causing the injury occurred, as defined by the policy.

Determining Occurrence for Injury Under Commercial General Liability Policy Without Applying “Trigger Theory”

Monday, July 19, 2021 — David Adelstein - Florida Construction Legal Updates

Oftentimes an occurrence in a commercial general liability policy is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” It is this occurrence that causes the bodily injury or property damage that may be covered by the policy.

An interesting non-construction case determined an occurrence under a commercial general liability policy occurred when the negligent act occurred irrespective of the date of discovery or the date the claim was discovered or asserted. See Certain Underwriters at Lloyd’s, London Subscribing to Policy No. J046137 v. Pierson, 46 Fla.L.Weekly D1288c (Fla. 4thDCA 2021). This is interesting because the appellate court did NOT apply a “trigger theory” to first determine the occurrence’s policy period. The appellate court found it did not need to determine which “trigger theory” applied to determine the occurrence for the injury and relied on a cited case: “trigger theories are generally used in the context of deciding when damage occurred ‘in cases involving progressive damages, such as latent defects, toxic spills, and asbestosis’ because the time between the ‘injury-causing event (such as defective construction, a fuel leak, or exposure to asbestos), the injury itself, and the injury’s discovery or manifestation can be so far apart.” Pierson, supra, citing and quoting Spartan Petroleum Co. v. Federated Mut. Ins. Co., 162 F.3d 805, 808 (4th Cir. 1998).

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

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

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The endorsements or exclusions to the policy can make the certificates worthless pieces of paper.

The Cross-Party Exclusion: The Hazards of Additional Named Insured Provisions

Monday, July 19, 2021 — Laurie A. Stanziale - ConsensusDocs

Most construction contracts contain insurance provisions setting forth the insurance required of the contractor or other downstream parties. Some provisions are detailed and lengthy while others are short and sweet, but all are of critical importance and should be fully understood by the contractor before signing the contract. Also, every insured should understand not only what the contract requires but more importantly what the actual policy states, as the policy, not the contract, will govern whether or not there is coverage. It is possible that certificates received will match the contractual requirements, but much of what the policy covers is not reflected on a certificate. Lurking behind the certificate is the policy, which is where the actual coverage lies. The endorsements or exclusions to the policy can make the certificates worthless pieces of paper.

There are many exclusions that can cancel coverage for the work a contractor may perform. Height exclusions, residential exclusions, EFIS exclusions and many more, focus on the type of work or materials that the contractor is performing or using. One exclusion, however, focuses on who is insured and that exclusion alone can eliminate all coverage.

Reprinted courtesy of Laurie A. Stanziale, Fox Rothschild LLP (ConsensusDocs)

Ms. Stanziale may be contacted at lstanziale@foxrothschild.com

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After hurricane damage to their home, plaintiffs sued American Security for coverage for the losses.

Mortgagors Seek Coverage Under Mortgagee's Policy

Monday, July 19, 2021 — Tred R. Eyerly - Insurance Law Hawaii

The mortgagor homeowners survived a motion to dismiss their claim for coverageunder the lender's property policy after their home suffered hurricane damage. Gary v. Am. Sec. Ins. Co., 2021 U.S. Dist. LEXIS 100010 (W.D. La. May 26, 2021).

Plaintiffs' home was mortgaged by Pennymac Loan Services, LLC. Pennymac held a property policy with American Security to insure its interest in the home. Plaintiffs were not named as insureds or additional insureds under the policy. Plaintiffs were identified as the borrowers under the policy on the Declarations page.

After hurricane damage to their home, plaintiffs sued American Security for coverage for the losses. American Security moved to dismiss, arguing plaintiffs were neither additional insureds nor third party beneficiaries. Lender-placed policies were designed to insure the lender's collateral whenever the borrower failed to maintain adequate insurance. The Loss Payment provisions in the policy stated that "Loss will be made payable to the named insured [Pennymac]. No coverage will be available to any mortgagee other than that shown as the named insured on the Declarations."

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

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

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Legislative building

A notice of a final action by the EPA to approve the State of Texas “partial” coal combustion residual state permit program was published in the June 28 Federal Register.

A Court-Side Seat: As SCOTUS Decides Another Regulatory “Takings” Case, a Flurry of Action at EPA

Monday, July 19, 2021 — Anthony B. Cavender - Gravel2Gavel

This is a brief account of some of the important environmental and administrative law cases recently decided.

THE U.S. SUPREME COURT

Pakdel v. City and County of San Francisco

On June 28, 2021, the Supreme Court decided this regulatory “takings” case, and, in a Per Curium opinion, reversed the Ninth Circuit’s ruling that that petitioners had to exhaust their state administrative remedies before they could file this lawsuit under 42 USC Section 1983. The City government had already come to a sufficient regulatory conclusion, and the Constitution does not require additional processing. In so ruling, the Ninth Circuit ignored last term’s decision in Knick v. Township of Scott.

Reprinted courtesy of Anthony B. Cavender, Pillsbury

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

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Construction worker walking through site

Built Pacific, Inc. was a subcontractor to Austin Sundt Joint Venture on a public works project known as the San Diego Regional Airport Authority Project.

One-Upmanship by Contractors In Prevailing Wage Decision Leads to a Bad Result for All . . . Perhaps

Monday, July 19, 2021 — Garret Murai - California Construction Law Blog

Fights between contractors can be a bit like Mad magazine’s “Spy vs. Spy” with each side trying to out outwit and one-up one another. The next case, Division of Labor Standards Enforcement v. Built Pacific, Inc., Case No. D076601 (March 15, 2021), is a case in point.

The Built Pacific Case
Built Pacific, Inc. was a subcontractor to Austin Sundt Joint Venture on a public works project known as the San Diego Regional Airport Authority Project.

In 2015, following an investigation by the California Division of Labor Standards Enforcement (DLSE), the DLSE issued a Civil Wage Penalty Assessment of $119,319.76 based on Built Pacific’s failure to pay prevailing wages. The DLSE also named Austin Sundt in the Civil Wage Assessment pursuant to Labor Code 1743 which makes contractors and subcontractors jointly and severally liable for wage violations. As a result of the Civil Wage Assessment, Austin Sundt withheld approximately $70,000 in retention from Built Pacific.

Reprinted courtesy of Garret Murai, Nomos LLP

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

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Stevie Baris was selected to the Super Lawyers 2021 Northern California Rising Stars list.

Haight’s Stevie Baris Selected for Super Lawyers’ 2021 Northern California Rising Stars

Monday, July 19, 2021 — Stevie B. Baris - Haight Brown & Bonesteel LLP

Congratulations to Stevie Baris who was selected to the Super Lawyers 2021 Northern California Rising Stars list. Each year, no more than 2.5% of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Reprinted courtesy of Stevie B. Baris, Haight Brown & Bonesteel LLP

Mr. Baris may be contacted at sbaris@hbblaw.com

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Structural Engineering Firm Avoided Condo Collapse in Sarasota Before Spotting Issues in Surfside

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The award was given in recognition of Daniel Ferhat's leadership as President of PADC over the past year.

Daniel Ferhat Receives Two Awards for Service to the Legal Community

Monday, July 19, 2021 — Daniel Ferhat - White and Williams LLP

Partner Daniel Ferhat was recently recognized by The Philadelphia Association of Defense Counsel (PADC) with the President’s Award at PADC’s Annual Meeting. This award was given in recognition of Dan’s leadership as President of PADC over the past year. Recognized as the oldest continuously operating local defense organization in the United States, PADC is comprised of over 300 attorneys and acts as a voice for its members and the clients they serve on emerging issues of interest.

Dan also received the Exceptional Performance Award from the Defense Research Institute (DRI), which is the largest international membership organization of attorneys defending the interests of businesses and individuals in civil litigation. DRI’s Exceptional Performance Award is given annually to an individual who has supported and improved the standards and education of the defense bar, and for having contributed to the improvement of the administration of justice in the public interest.

Reprinted courtesy of Daniel Ferhat, White and Williams LLP

Mr. Ferhat may be contacted at ferhatd@whiteandwilliams.com

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Water

CWA Section 401 requires states and tribes to certify that any discharges associated with a federal permit will comply with applicable state or tribal water quality requirements.

EPA Seeks Comment on Clean Water Act Section 401 Certification Rule

Monday, July 19, 2021 — Karen Bennett - Lewis Brisbois

The Environmental Protection Agency (EPA) announced that it will revise a 2020 final rule clarifying requirements for water quality certification under the Clean Water Act (CWA). 85 Fed. Reg. 42210 (June 2, 2021). CWA Section 401 requires states and tribes to certify that any discharges associated with a federal permit will comply with applicable state or tribal water quality requirements.

In an effort to eliminate 401 certification being used as a tool for delaying or imposing conditions unrelated to protecting water quality on federal permits, the 2020 rule established limits on the scope and timeline for review and required any conditions on certification to be water-quality related. State and Tribal governments and environmental groups challenged the rule, arguing it constrained state and tribal decision-making authority by limiting the term “other appropriate requirements of State law” in CWA Section 401(d) to “water quality requirements” and “point source discharges.”

With EPA’s decision to revise the rule, many believe these same scope and timing limitations will be targets for change. Clients with experience, positive or negative, under the 2020 rule should consider submitting comments by the August 2, 2021 deadline.

Reprinted courtesy of Karen Bennett, Lewis Brisbois

Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com

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Businessman handing someone money

The U.S. District Court in Philadelphia upheld findings of a DOL investigation.

Henkels & McCoy Pays $1M in Federal Overtime-Pay Case

Monday, July 19, 2021 — Tom Ichniowski - Engineering News-Record

In a consent judgment in a federal labor case, major specialty contractor Henkels & McCoy Inc. has paid about $1.1 million in back pay and damages for allegedly not paying required overtime wages to 362 current and former workers in five states, the U.S. Dept. of Labor says.

Reprinted courtesy of Tom Ichniowski, Engineering News-Record

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

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Trends chart with business people in background

A new study helps explain why melting permafrost is hitting Arctic infrastructure so hard.

Arctic Roads and Runways Face the Prospect of Rapid Decline

Monday, July 19, 2021 — Tony Frangie Mawad - Bloomberg

Melting permafrost across Arctic regions has already caused highways to buckle and homes to sink. A new study conducted in the north of Alaska helps explain why rising temperatures are hitting roads, airports and other infrastructure particularly hard.

Researchers who monitored temperatures and melting near Prudhoe Bay on Alaska’s North Slope documented how the thawing of frozen ground beneath a highway tended to spread laterally to the side of the road, with the melting process accelerated by snow accumulations and puddling. Those interactions led to more rapid thawing than in areas of undisturbed permafrost.

Researchers also found that melting in their test area, alongside a highway that runs atop permafrost, followed a two-phase process — a gradual initial thaw, followed by an accelerated process once warming exceeded a critical point.

Reprinted courtesy of Tony Frangie Mawad, 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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