NYC’s Silverstein Taps Hot South Florida Market With New Loan

January 10, 2022
Nathan Crooks - Bloomberg

The lending arm of New York-based developer Silverstein Properties is putting $340 million into a luxury hotel and condo project in downtown Miami.

The construction loan for the Legacy Hotel & Residences, a project being built by Royal Palm Cos., comes amid rising demand for new condos and hotel rooms in South Florida.

The 50-floor tower is going up in the heart of the Miami Worldcenter, the second-largest urban development in the U.S. With Covid-related travel restrictions being relaxed, international buyers have returned to the Miami market, according to Dan Kodsi, chief executive officer of Royal Palm.


2021 OSHA Year in Review and What to Expect in 2022

January 10, 2022
Goldberg Segalla

Goldberg Segalla will be hosting a webinar on January 18 at 12 p.m. EST titled "2021 OSHA Year in Review and What to Expect in 2022" with presenters Michael Rubin and Stefan A. Borovina.

This interactive webinar will discuss OSHA's significant developments from 2021 and how they will impact OSHA compliance and enforcement in 2022 and beyond. OSHA's most cited standards of the past year, current litigation and future enforcement of COVID-19 testing or vaccine mandates, and more will be explored in the webinar.

January 18th, 2022
Virtual Event


Delaware Superior Court Finds Pollution Exclusion Precludes Coverage for COVID-Related Claims

January 10, 2022
John D. Balaguer, Timothy S. Martin & Daryll Hawthorne-Searight - White and Williams

The Delaware Superior Court recently dismissed an amusement park operator’s bid for property damage insurance coverage for COVID-19 related losses. Judge Abigail M. LeGrow granted HDI Global Insurance Company’s (HDI) motion to dismiss the complaint filed by APX Operating Company LLC (APX), the operator of six entertainment properties and two waterparks in California, Florida and New Jersey (Insured Properties), that sought coverage for lost revenue and profits when the properties were shut down for a period of time as a result of the COVID-19 pandemic, and once reopened were forced to operate at reduced capacity. The court’s decision side-stepped the question of whether the presence of SARS-CoV-2 virions on the properties were “direct physical loss or damage,” triggering coverage under the policy, but nevertheless found that there was no coverage for the claimed losses based on the policy’s Pollution and Contamination Exclusion.

Reprinted courtesy of John D. Balaguer, White and Williams, Timothy S. Martin, White and Williams and Daryll Hawthorne-Searight, White and Williams
Mr. Balaguer may be contacted at balaguerj@whiteandwilliams.com
Mr. Martin may be contacted at martint@whiteandwilliams.com
Ms. Hawthorne-Searight may be contacted at hawthorned@whiteandwilliams.com


California Plant Would Convert Wood Waste Into Hydrogen Fuel

Aerial beach photo

Developer says $100M facility would divert carbon emissions.

January 10, 2022
James Leggate - Engineering News-Record

A climate-focused tech company announced plans to open a $100-million plant outside Bakersfield, Calif., to convert wood waste into hydrogen fuel to prevent the material from emitting greenhouse gases. There has been no construction contract award, to date.

Reprinted courtesy of James Leggate, Engineering News-Record

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

Read the full story...


Vaccine Mandate Confusion Continues – CMS Vaccine Mandate Restored in Some (But Not All) US States

Businesswoman with cold working at laptop

Now that CMS has been given a green light to enforce its mandate in part of the country, it is unclear how and when (and, indeed, if) CMS will move forward.

January 3, 2022
David S. Harvey, Jr. & Sarah Hock - Lewis Brisbois

Tampa, Fla. (December 16, 2021) - As has been widely publicized, the Biden Administration has attempted to impose various forms of vaccine mandates under a variety laws and programs. At the same time, we have seen a flurry of opposition to these efforts ranging from new state laws (for example, in Florida) to court challenges seeking to enjoin the effort.

One of the federal mandates was issued by the Centers for Medicare & Medicaid Services (CMS) and is applicable to staff at Medicare- and Medicaid-certified healthcare providers. Initially, fourteen states sued in opposition to the CMS mandate and were able to obtain a nationwide injunction issued by a federal district judge in Louisiana. That injunction was appealed to the Fifth Circuit Court of Appeals, which has now issued a decision that awards points to both sides.

The Fifth Circuit ruled the injunction only applies to the 14 states that participated in the Louisiana lawsuit and not nationwide. Those states are Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia. This opinion has the potential to revive the CMS vaccine mandate in just over half of U.S. states. We can anticipate new suits will be filed as to other states, with the outcome still uncertain. It is unknown at this point whether the United States Supreme Court will agree to review the issues when such review is sought in the near future.

Reprinted courtesy of David S. Harvey, Jr., Lewis Brisbois and Sarah Hock, Lewis Brisbois
Mr. Harvey may be contacted at David.Harvey@lewisbrisbois.com
Ms. Hock may be contacted at Sarah.Hock@lewisbrisbois.com


Climate-Proofing Your Home: Upgrades to Weather a Drought

Urban skyline with earth brown to green signalling climate change

Maximizing efficiency and minimizing waste are essential to improving your home’s resilience.

January 3, 2022
Todd Woody - Bloomberg

Climate-driven drought is making the once unthinkable foreseeable. Amid water shortages, your faucets could run dry, as has been a possibility in Marin County, California. Violate mandatory water restrictions and you might face steep fines or even a cutoff of service.

With the western United States in the grip of an extreme drought, rivers and reservoirs are at record lows and some water utility districts in California have asked residents to curtail consumption by as much as 40%. A 2019 study found regions across the nation could face water shortages in the coming decades in part due to climate change.

That puts a premium on making homes more resilient to drought by maximizing efficiency and minimizing waste through technologies that monitor consumption and recycle and capture water that would otherwise be lost.


Maritime Law: An Albatross for Contractors Navigating Marine Construction

Ocean algae

This article gives an overview of key maritime law issues to demystify this historical body of law and answers some basic questions.

January 3, 2022
Cindy Matherne Muller - ConsensusDocs

“Ah! Well a-day! When evil looks, Had I from old and young! Instead of the cross, the Albatross, About my neck was hung.” 1

Contractors and subcontractors performing construction over water may find themselves encountering maritime law for the first time. Like the ancient mariner’s encounter with an albatross in The Rime of the Ancient Mariner, a contractor may be able to use maritime law to safely guide it through rough seas, or, if not careful, a contractor may find itself with maritime law hung, like an albatross, around its neck. This article gives an overview of key maritime law issues to demystify this historical body of law and answers some basic questions.

What is admiralty jurisdiction?

The Constitution gives federal courts jurisdiction over all maritime cases. This jurisdiction gives litigants the opportunity to remove state court cases to federal court and to avoid a jury trial. The purpose of admiralty jurisdiction in federal court is to protect and ensure the uniform treatment of nationwide maritime commerce and extends to maritime contracts and accidents. Any contract which relates to the navigation, business, or commerce of the sea is a maritime contract. Even contracts with mixed obligations on land and sea can fall within admiralty jurisdiction – such as construction contracts with a waterborne component. Admiralty jurisdiction also extends to maritime accidents – those that occur on navigable waters and have a maritime nexus.

Ms. Muller may be contacted at cmuller@joneswalker.com


California Joins the Majority of States in Modifying Its Survival Action Statute To Now Permit Recovery for Pain, Suffering And Disfigurement

Palm trees

California is now the 46th state to permit this form of recovery.

January 3, 2022
Krsto Mijanovic & Elizabeth D. Rhodes - Haight Brown & Bonesteel

On January 1, 2022, California Code of Civil Procedure (“CCP”)Section 377.30 et seq., as amended by Senate Bill 447, otherwise known as the “survival action” statute1, goes into effect. On that date, all plaintiffs filing new civil cases filed on or after January 1, 2022, and before January 1, 2026, and plaintiffs in any action or proceeding granted trial preference pursuant to CCP Section 36 before January 1, 2022, will be expressly allowed to recover damages for a decedent’s pain, suffering, or disfigurement in a survival action.2 This is a significant change in California law. In that regard, California is now the 46th state to permit this form of recovery.

As reported in the Legislative Counsel’s Digest3, Consumer Attorneys of California and Consumer Federation of California, which co-sponsored Senate Bill 447, opined to the Legislature that the prior law provided a “death discount” to defendants which incentivized bad faith delays in resolution, and caused unnecessary congestion of the already overburdened court system. These argued issues will be vetted by the Legislature using the four-year reporting requirement that is also part of the amendment to the statute, requiring plaintiffs who recover this newly permitted category of damages to report the valuation and details of the case to the Judicial Council within 60 days of the judgment or other operative court document being entered in the court’s docket.4 The amendment will be evaluated by the Legislature for amendment or extension on or before January 1, 2026.

Reprinted courtesy of Krsto Mijanovic, Haight Brown & Bonesteel and Elizabeth D. Rhodes, Haight Brown & Bonesteel
Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com
Ms. Rhodes may be contacted at erhodes@hbblaw.com


Four Ways Veterans’ Skills Benefit the Construction Industry

January 3, 2022
Josh White - Construction Executive

The construction industry is a major contributor to the U.S. economy, employing more than 7 million people and creating nearly $1.3 trillion worth of structures annually. An impressive portion of these employees have a military background—in fact, roughly 15.5% of all U.S. veterans will enter the construction industry at some point in their careers, according to PlanGrid’s Construction Productivity blog.

Veterans acquire valuable skills throughout their service that are easily transferable to post-military jobs, and employers in various industries can play prominent roles in helping bridge the gap between concluding military life and entering the workforce by providing job opportunities. One industry that continues to stand out among the rest in terms of hiring and supporting veterans is the contracting and construction industry, which currently employs more than half a million veterans.

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


Massive Wildfire Near Boulder, Colo., Destroys Nearly 1,000 Homes and Businesses

Smoke billowing from field

Two people remain missing and are feared dead from the wind-driven blaze.

January 3, 2022
Mark Shaw - Engineering News-Record

A wildfire, driven by wind gusts up to 105 mph, swept through 6,000 acres in suburban neighborhoods east of Boulder, Colo., destroying 991 homes and damaging 127 others in the towns of Superior and Louisville, according to estimates from the Boulder County sheriff’s office.

Reprinted courtesy of Mark Shaw, Engineering News-Record

Mr. Shaw may be contacted at shawm@enr.com

Read the full story...


Some Construction Contract Basics- Necessities and Pitfalls

Stick figures teaching

All of the gut following and great communication will not help you if your contract is not up to snuff.

January 3, 2022
Christopher G. Hill - Construction Law Musings

Recently, I’ve been on an “advising” kick here at Construction Law Musings. My last two posts have been about communication and trusting your gut when it comes to a smooth construction project. This post will be the third in the trilogy (and who knows maybe I’ll have a 4th and 5th like the Hitchhiker’s Guide to the Galaxy “trilogy”).

While all construction contractors should use their communication skills and instincts to assure a smooth and hopefully profitable project, all of the gut following and great communication will not help you if your contract is not up to snuff. In the spirit of giving you a few basics things to look at, here’s my list of three basics that you need in your contract and a three things to be on the lookout for in others’ contracts.

First, the good stuff that needs to be there:

  1. Attorney Fees Clause– without it, a Virginia court (and most other courts) will not award you a judgment for any attorney fees spent to protect your rights.
  2. Dispute Resolution– whether the specified resolution is through the litigation process, ADR or some combination, such a clause or paragraph will only help define the parameters of what happens with a claim.
  3. Detailed scope of work– Without the proper detail in the scope of work, the parties cannot properly set expectations and know what happens when things change.

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


U.K.’s House Price Boom Driven by ‘Race for Space’, BOE Says

January 3, 2022
Philip Aldrick - Bloomberg

Britain’s house price boom has been driven by the “race for space” as people left city flats during the pandemic, the Bank of England says.

U.K. house prices rose 11.8% in the year to September, one of the fastest rates of growth in the past 20 years. About half of that rise can be explained by people wanting to move to larger homes, the central bank said.


Lien Attaches To Landlord’s Interest When Landlord Is Party To Tenant Improvement Construction Contract

Glasses lying on Landlord-Tenant agreement

It is imperative that a landlord / lessor make efforts to comply with this section when a tenant is performing tenant improvements, even when the landlord is contributing money to those improvements.

January 3, 2022
David Adelstein - Florida Construction Legal Updates

If you are a landlord / lessor, then you want to maximize the protections afforded to you under Florida’s Lien Law in Florida Statute s. 713.10. These protections are designed to protect your property from liens for improvements performed by your tenant / lessee. The intent is that if you comply with s. 713.10, then a tenant improvement contractor’s recourse is against the leasehold interest, and NOT against the interest of the real property (or your interest as the landlord / lessor). Needless to say, it is imperative that a landlord / lessor make efforts to comply with this section when a tenant is performing tenant improvements, even when the landlord is contributing money to those improvements.

Section 713.10 provides in material part:

(1) Except as provided in s. 713.12, a lien under this part shall extend to, and only to, the right, title, and interest of the person who contracts for the improvement as such right, title, and interest exists at the commencement of the improvement or is thereafter acquired in the real property. When an improvement is made by a lessee in accordance with an agreement between such lessee and her or his lessor, the lien shall extend also to the interest of such lessor.

(2)(a) When the lease expressly provides that the interest of the lessor shall not be subject to liens for improvements made by the lessee, the lessee shall notify the contractor making any such improvements of such provision or provisions in the lease, and the knowing or willful failure of the lessee to provide such notice to the contractor shall render the contract between the lessee and the contractor voidable at the option of the contractor.

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


Environmental Regulatory Provisions Embedded in the Infrastructure Investment and Jobs Act

Construction worker checking pipeline

The Infrastructure Act is mostly an appropriations and authorization law, but it includes many new policy choices.

January 3, 2022
Anthony B. Cavender - Gravel2Gavel

With the enactment of this important legislation, its impact on environmental regulation and policy will be carefully analyzed by the regulated community. Such a review may be hampered by the fact that the law is not only complex but also very long (over 2000 pages!). The Infrastructure Act is mostly an appropriations and authorization law, but it includes many new policy choices. This is a brief review (which can only scratch the surface of this law) of some of the many environmentally related provisions, which are part of this new law and can be located in the pdf version of the law.

The law is composed of nine separate divisions, which are further divided into separate titles and subtitles. Division A is entitled “Surface Transportation”; Division B is the “Surface Transportation Investment Act of 2021”; Division C is “Transit”; Division D is “Energy”; Division E is “Drinking Water and Wastewater”; Division F is “Broadband”; Division G is “Other Authorizations”; Division H is “Revenue Provisions”; Division I is “Other Matters”; Division J is “Appropriations”; and Division K is “Minority Business Development.”

It is somewhat bewildering on first reading, as befits a law that is expressing the manifold policy decisions made by the Congress.

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


Prejudice to Insurer After Late Notice of Hurricane Damage Raises Issue of Fact

Businessman facing a storm

Under Florida law, when notice was untimely, prejudice to the insurer was presumed, but the presumption was rebuttable.

January 3, 2022
Tred R. Eyerly - Insurance Law Hawaii

The court denied the insurer's motion for summary judgment on admittedly late notice because prejudice to the insured remained an issue of fact. Guzman v. Scottsdale Ins. Co., 2021 U.S. Dist. LEXIS 219625 (S.D. Fla. Nov. 15, 2021).

The insured first noticed water leaking into his kitchen from the roof during Hurricane Irma on September 10, 2017. Various attempts were made by the insured to fix the leak, but none were successful. After the hurricane, the roof continued to leak whenever it rained. Notice was finally given to Scottsdale, the insurer, on April 19, 2020.

Scottsdale retained structural engineer Nazario Ramirez, who inspected the property twice. He also had photographs of the rapids. Ramirez denied being prejudiced during his inspections. Based on the pictures aerial photography and weather research, he determined that the damage was caused by underlayment failing, which could have resulted from age and deterioration or poor construction. When Scottsdale's corporate representative was deposed, he testified that Ramirez was able to determine the cause of the damage to the roof.

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


ABA Webinar: Navigating through Key Aspects of a Construction Trial or Arbitration

January 3, 2022
Beverley BevenFlorez – CDJ Staff

This one-day ABA webinar features “four Forum veterans” who will “discuss themes for trial, opening statements, direct and cross examination, and bring up some war stories to help you to fine-tune your presentation in your next construction trial or arbitration.” Editor Tony Lehman will moderate a discussion with Kelsey Funes, Michael Lane and Lu Prats.

January 19th, 2022
Virtual Event


New York Appellate Court Applies Broad Duty to Defend to Property Damage Case

Blue Law keys

In the underlying action, the plaintiff alleged property damages due to prolonged construction work in a different unit of the subject property.

January 3, 2022
Craig Rokuson - Traub Lieberman Insurance Law Blog

In the recent case of New York Marine and Gen. Ins. Co. v. Eastman Cooke & Associates, 153 N.Y.S.3d 840, 841 (N.Y. App. Div. 1st Dept. 2021), New York’s first department affirmed a duty to defend under New York law. In the underlying action, the plaintiff alleged property damages due to prolonged construction work in a different unit of the subject property. The underlying plaintiff sued the owner of the subject property, which in turn sued Eastman Cooke, the general contractor at the premises. New York Marine denied coverage to Eastman Cooke, asserting that the underlying suit did not seek damages occurring during the New York Marine policy period, and commenced a declaratory judgment action.

The trial court held—and the First Department affirmed—that New York Marine has a duty to defend Eastman Cooke. Initially, the court found that the underlying suit alleged property damage as required for coverage, because there were allegations regarding loss of use of the property. The court also found that the underlying suit alleged damages occurring during the New York Marine policy period. Although the underlying complaint alleged that the underlying plaintiffs were reimbursed for damages occurring during the New York Marine policy period by another insurer, the court held that the evidence was that the payments only covered a certain part of the damages sought. Accordingly, because there was a reasonable possibility that some unreimbursed damages may fall within the New York Marine policy period.

Mr. Rokuson may be contacted at crokuson@tlsslaw.com


California Court of Appeal Shoots Down COVID-19 Business Interruption Claim

January 3, 2022
Tred R. Eyerly - Insurance Law Hawaii

The California Court of Appeal affirmed the trial court's dismissal of the insured's business interruption claim based upon COVID-19 government shutdown orders. The Inns by the Sea v. California Mut. Ins. Co., 2021 Cal. App. LEXIS 956 (Calif. Ct. App. Nov. 15, 2021). The Inns is the first state appellate court decision in the country on coverage for COVID-19 claims.

The case presented an issue of first impression for a California appellate court: did a property policy provide coverage for business loss of income due to the COVID-19 pandemic?

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


Engineer Proposes Slashing Scope of Millennium Tower Pile Upgrade

Person jumping and twisting

The revised pile scheme would use the modified installation procedures developed after the initial work accelerated the settlement of the 645-ft-tall building.

January 3, 2022
Nadine M. Post - Engineering News-Record

Based on further structural analysis and the success of a pilot program that installed three permanent piles using modified procedures, the structural engineer-of-record for the delayed perimeter pile upgrade of the 645-ft-tall Millennium Tower in San Francisco has proposed a significantly reduced scope for the project that he says would still arrest settlement and allow the slow recovery of some of the condominium building’s tilt.

Reprinted courtesy of Nadine M. Post, Engineering News-Record

Ms. Post may be contacted at postn@enr.com

Read the full story...


Construction Executives Should Be Dusting Off Employee Handbooks

Old book opened and gold dust flows out

The employee handbook should be a window into the soul of a business.

January 3, 2022
Adam E. Richards & Andrew Zelman - Construction Executive

For most businesses—large and small—the importance of maintaining and updating an employee handbook that sets forth a uniform set of company policies cannot be understated. The construction industry, which is seemingly plagued by a never-ending labor shortage, necessitating construction executives having to grapple with pandemic-related workplace issues and challenges, is not exempt from the benefits of a thorough, well-formed handbook.

The employee handbook should be a window into the soul of a business. Even though annual updates are appropriate, they seldom occur. To say a lot has happened over the last few years barely begins to scratch the surface. Particularly, during the COVID-19 pandemic, construction executives and human resources professionals within construction-related businesses throughout the country have been forced to evaluate business models, values and cultures in furtherance of deciding where and how to evolve.

Once those decisions are made, the employee handbook is deserving of time and attention. Reflecting the evolution of your construction business is only part of the overall plan; however, demonstrating compliance with new laws is equally important.

Reprinted courtesy of Adam E. Richards & Andrew Zelman, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.



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