The Reptile Theory in Practice

Green lizard

The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.

September 6, 2021
Nicholas P. Hurzeler - Lewis Brisbois

The “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages. The plaintiff’s attorney will seek to activate the jurors’ “survival mode” instincts by presenting the defendant’s conduct as highly dangerous and worthy of punishment. The defendant’s conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.

The term “Reptile Theory” originated in the writings of nuero-physiologist Paul D. MacLean in the 1950s, who suggested that one major part of the brain consisted of a “reptilian complex” that controlled instinctive behaviors involved in aggression, dominance, and territoriality. Then in the 2009 publication “Manual of the Plaintiff’s Revolution” by David Ball and Don Keenan, the authors first described the “Reptile Theory” in the context of litigation. Since then it has become a hot topic in litigation as defense counsel develop methods to combat “Reptile” tactics resulting in runaway jury awards.

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


As Fracture Questions Remain, Team Raced to Save Mississippi River Bridge

Hands joined in team let's go gesture

A team of Michael Baker International, HNTB and Kiewit scrambled to implement permanent repairs for the bridge linking Tennessee and Arkansas.

September 6, 2021
Jim Parsons - Engineering News-Record

"How is this bridge still standing?”
That was the initial reaction of Aaron Stover, Michael Baker International’s vice president and regional bridge practice lead, as he first studied images of a fractured tie beam that forced the May 11 emergency shutdown of the I-40/Hernando de Soto Bridge between Tennessee and Arkansas. Discovered by chance earlier in the day during MBI’s routine above-deck inspection, the fracture on the bridge’s eastbound span affected nearly half the cross-section of a 26-in. by 33-in. welded girder supporting one of the 50-year-old structure’s 900-ft-long, 100-ft-high arched navigation spans across the Mississippi River.

Reprinted courtesy of Jim Parsons, Engineering News-Record

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

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ACS Recognized by Construction Executive Magazine in the Top 50 Construction Law Firms of 2021

Best Practice Puzzle Piece

Construction Executive ranked ACS number 31 among the top 50 construction practices in the country.

September 6, 2021
Ahlers Cressman & Sleight PLLC

ACS is pleased to announce that the firm has been recognized by Construction Executive magazine in The Top 50 Construction Law Firms™ for 2021. Construction Executive ranked ACS number 31 among the top 50 construction practices in the country.

ACS is known for our depth of knowledge of the construction industry and experience in construction law. Our lawyers hold leadership positions within state and national industry organizations. Two of our lawyers are past chairs of the Washington State Bar Association’s Construction Law Section and the current chair, five of our lawyers have served as the Chair of the Associated General Contractors of Washington’s Legal Affairs Committee, and the majority of our lawyers are recognized as Super Lawyers and Rising Stars in Super Lawyers Magazine/Thomson Reuters.

Since it was first published in 2003, Construction Executive has become the leading trade magazine for news, market developments, and business issues impacting the construction industry. The magazine reaches more than 55,000 commercial, industrial, and institutional contractors and construction-related business owners. Each issue of Construction Executive includes articles designed to help owners and top managers run a more profitable and productive construction business.


Maybe California Actually Does Have Enough Water

California bear flag

When a state has successfully defied nature and geography for so long, it seems unwise to presume the end is near.

September 6, 2021
Francis Wilkinson - Bloomberg

It’s hard to know how much to panic over California’s dwindling water supplies. The state has never really had enough water, after all, yet lawns in Beverly Hills somehow remain perpetually green. Earlier this month, however, came a sign that life might soon be getting more uncomfortable for more Californians.

On Aug. 3, the State Water Resources Control Board voted 5 to 0 to issue an “emergency curtailment” order for the Sacramento-San Joaquin Delta watershed. Last week the order was submitted to the state’s Office of Administrative Law, which is likely to approve it.

The watershed covers about 40% of the state, stretching roughly from Fresno to Oregon, and is California’s largest source of surface water. About 5,700 holders of water rights, largely in agriculture and business, will be affected by the reduction in water access. Although many farms have already drawn most of the water they need for the season, the board’s move was a sign that ancestral water rights won’t be a guarantee of actual water if drought persists.


Las Vegas Train Bonds Will Go To California Housing

August 30, 2021
Romy Varghese - Bloomberg

California reallocated $200 million of tax-exempt private activity bonds formerly reserved for Fortress Investment Group’s Las Vegas tourist train to be used instead by affordable housing projects.

In January, the state’s Debt Limit Allocation Committee set aside that portion of California’s limited financing resource in anticipation that the firm’s Brightline Holdings would request it later in the year. Instead, the venture said in June it will seek an undisclosed amount of debt next year. The committee’s three-member board on Wednesday unanimously approved moving the bonds to housing.


Best Lawyers Honors 48 Lewis Brisbois Attorneys, Recognizes Four Partners as 'Lawyers of the Year'

Award winner holding arms in air in triumph

Best Lawyers has selected 48 Lewis Brisbois attorneys across 27 offices for inclusion in its list of 2022 Best Lawyers in America.

August 30, 2021
Lewis Brisbois

Best Lawyers has selected 48 Lewis Brisbois attorneys across 27 offices for inclusion in its list of 2022 Best Lawyers in America. It has also recognized four Lewis Brisbois partners as "Lawyers of the Year": Cleveland/Akron Partner John F. Hill (Bet-the-Company Litigation); San Diego Partner Marilyn R. Moriarty (Medical Malpractice Law - Defendants); Portland Managing Partner Eric J. Neiman (Medical Malpractice Law - Defendants); and Sacramento Partner Eric J. Stiff (Corporate Law).

Please join us in congratulating these four partners and the following attorneys on their Best Lawyers recognition.

    Seattle Partner Randy J. Aliment: Commercial Litigation
  • Reno Managing Partner Jack G. Angaran: Insurance Law, Litigation - Construction, Litigation - Real Estate
  • Los Angeles Partner Brian G. Arnold: Litigation - Intellectual Property, Litigation - Patent
  • Los Angeles/Orange County Partner John L. Barber: Employment Law - Management, Litigation - Labor and Employment

Cutting-Edge Issues in Condemnation Seminar

August 30, 2021
Beverley BevenFlorez – CDJ Staff

The 11th annual Cutting-Edge Issues in Condemnation Seminar will be a live webinar and in person event. This one-day seminar “will provide an overview and update of eminent domain legal issues and land valuation, with emphasis on emerging issues and recent court decisions.” It’s relevant for attorneys, government employees, municipal employees, real estate appraisers, real estate brokers, and Right of Way professionals.

October 29th, 2021
In Person & Virtual Event
Washington Athletic Club
1325 6th Avenue
Seattle, WA 98101


Progress, Property, and Privacy: Discussing Human-Led Infrastructure with Jeff Schumacher

Businessman in elevator

A discussion of how technical innovation has changed the sector, the dangers of assumption, and why retaining a human-centered perspective is vital in a data-driven business.

August 30, 2021
Aarni Heiskanen - AEC Business

We sat down with Jeff Schumacher, Microsoft’s Global Workplace Services Regional Lead Ireland, UK, and MEA, in the run-up to his keynote speech at WDBE 2021. Our conversation covered how technical innovation has changed the sector, the dangers of assumption, and why retaining a human-centred perspective is vital in a data-driven business.

As we leave lockdown, the conversation shifts from measuring the impact on society to the positive change that our urban spaces and built environment can provide. But when it comes to contemporary professional working spaces and the habits of the people working within them, it can be difficult to find a solution that works.

Mr. Heiskanen may be contacted at aec-business@aepartners.fi


New York Climate Mobilization Act Update: Reducing Carbon Emissions and Funding Solutions

Urban skyline with earth brown to green signalling climate change

An outline some of the funding solutions that are available to New York City building owners looking to retrofit their buildings in order to comply with the CMA’s requirements.

August 30, 2021
Caroline A. Harcourt - Gravel2Gavel Construction & Real Estate Blog

In our June 16 CMA Update, we discussed how the New York City Climate Mobilization Act (CMA) will affect building owners and the market for CMBS mortgage loans (loans pooled and resold as commercial mortgage-backed securities). (For more information on C-PACE financing, see Sustainable Buildings and Development: Carbon Emissions and the Recent Climate Mobilization Act of New York City.) In this update, we will outline some of the funding solutions that are available to New York City building owners looking to retrofit their buildings in order to comply with the CMA’s requirements.

Funding Solutions for Covered Building Owners

The cost of retrofitting buildings to incorporate energy efficient features and to achieve compliance with the CMA can be daunting.

Ms. Harcourt may be contacted at caroline.harcourt@pillsburylaw.com


Lumber Drops to Nine-Month Low, Extending Retreat From Record

Wood

Chicago futures drop 4.4% to lowest since late October.

August 30, 2021
Marcy Nicholson - Bloomberg

Lumber futures slid to the lowest in more than nine months after sawmills ramped up production and demand from builders stabilized.

September futures in Chicago fell as much as 4.4% to $482.90 per thousand board feet, the lowest for a most-active contract since Oct. 30. Prices have dropped more than 70% from the record high reached just three months ago.

The tumble marks a stark turnaround for the common building material after strong U.S. construction demand during the pandemic spurred a surge in orders for lumber, causing prices to more than quadruple to their May peak and fueling inflation concerns. Sawmills have since increased output, and a shortage of other building supplies such as siding and windows has slowed the pace of construction, said Brian Leonard, an analyst with RCM Alternatives.


Waiver Of Arbitration by Not Submitting Claim to Initial Decision Maker…Really!

Businesswoman holding temples

If you want an arbitrator to resolve your disputes, you need to ensure there is an arbitration provision in your contract.

August 30, 2021
David Adelstein - Florida Construction Legal Updates

Arbitration is a form of dispute resolution that is a creature of contract. If you want an arbitrator to resolve your disputes, you need to ensure there is an arbitration provision in your contract. There are pros and cons to arbitration. One con is you lose the right to appeal. A couple of pros, however, are that your arbitrator(s), which you generally have some control in the selection of, will be versed in the construction industry and it can be a more efficient forum to resolve disputes in the times of COVID. Once you have your scheduling conference with the appointed arbitrator(s), you will be able to agree upon a set final hearing (trial) time and have milestone dates that work backwards from the final hearing date. This is much more efficient than being placed on an unrealistic trial docket or having to deal with the gamesmanship of motions just to be able to get your case at-issue for trial.

However, the right to arbitrate your dispute can be waived. This was the issue in Leder v. Imburgia Construction Services, Inc., 2021 WL 3177338 (Fla. 3d DCA 2021), which I will be the first to tell you the ruling is quite baffling to me. In a nutshell, the contractor, by not complying with the submission of a claim to the Initial Decision Maker was found to have waived the dispute resolution provision in the AIA contract. Not sure this makes sense, but this was the ruling.

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


What Is the Best Way to Avoid Rezoning Disputes?

White question marks on ground

Rezoning disputes can add significant delays and costs to a project and can even defeat the project altogether.

August 30, 2021
Collier Marsh - Construction Executive

Construction companies and developers are accelerating projects in the southeast and throughout the country as the economy rebounds from the worst of the COVID-19 pandemic. Whether they are building commercial, industrial or residential projects, these developments often require rezoning to maximize an investment. But rezoning disputes can add significant delays and costs to a project and can even defeat the project altogether.

There are proactive steps construction companies can take to avoid disputes as they are working to secure rezoning approval, as well after the rezoning is complete. During the initial rezoning process, before a final municipal decision, one of the best practices is to anticipate opposition and address it head-on. As for post-approval disputes, those often come down to how carefully a company followed the local procedures and, where applicable, the local evidentiary requirements.

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

Mr. Marsh may be contacted at colliermarsh@parkerpoe.com


ABC’s Construction Backlog Indicator and Contractor Confidence Index Rise in June

August 30, 2021
ABC - Construction Executive

Associated Builders and Contractors has reported that its Construction Backlog Indicator rose to 8.5 months in June, according to an ABC member survey conducted June 20-July 6, 0.5 months higher than in May 2021 and 0.4 months higher than in June 2020.

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


Can a Home Builder Disclaim Implied Warranties of Workmanship and Habitability?

Red pencil on Limited Warranty

Attorney Kevin J. Parker analyzes Zambrano v. M & RC II LLC.

August 30, 2021
Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog

In a recent Arizona Court of Appeals case, Zambrano v. M & RC II LLC, 2021 WL 3204491 (7/29/2021), the Court of Appeals addressed the question whether a home builder’s attempt to disclaim implied warranties of workmanship and habitability was effective. In that case, the buyer initialed the builder’s prominent disclaimer of all implied warranties, including implied warranties of habitability and workmanship. After the purchase, the buyer sued the builder, claiming construction defects. The builder moved for summary judgment, seeking enforcement of the disclaimer of warranties. The trial court granted the builder’s motion for summary judgment, thereby enforcing the disclaimers. The buyer appealed.

The Court of Appeals addressed the question whether – as a matter of public policy – the implied warranties of workmanship and habitability were waivable. The Court of Appeals started the analysis by noting that the Arizona Supreme Court had, in a 1979 case, judicially eliminated the caveat emptor rule for newly built homes. The court further noted the long history of cases detailing the public policy favoring the implied warranties. But the court also noted the competing public policy of allowing parties to freely contract; explaining that the usual and most important function of the courts is to maintain and enforce contracts rather than allowing parties to escape their contractual obligations on the pretext of public policy.

Mr. Parker may be contacted at kparker@swlaw.com


Building the Secondary Market for Reclaimed Building Materials

Wood frame

Building deconstruction, or “construction in reverse,” is the most effective way to preserve the embodied energy of the materials that comprise the built environment.

August 30, 2021
Christopher G. Hill - Construction Law Musings

For this week’s guest post Friday, Musings welcomes Mark Rabkin of Deconstruction Management, Inc., the first, dedicated, for-profit deconstruction management firm in the country. Based in Northeast Ohio, it through all stages of building removal from property acquisition to deconstruction to recycling and architectural salvage.

With 10 years of professional experience as an independent risk advisor focusing on sustainable real estate and development, Mark counsels his clients on effective strategies to reduce hazards and mitigate losses. Mark oversees the marketing and administrative functions of Deconstruction Management, Inc. and is responsible for managing the architectural salvage and the upcycled material reuse and resale side of the business.

Mark is a leader in the advocacy of sustainable building strategies both locally and nationally. Mark serves as the volunteer Director of Advocacy for the Northeast Ohio Chapter of the United States Green Building Council. He is also an active contributor on many of the chapter’s strategic implementation teams. Mark is a member of Entrepreneurs for Sustainability, the Council of Smaller Enterprises’ Sustainability Task Force and is an active participant in the Sustainable Cleveland 2019 Initiative.

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


Certificates as Evidence of Additional Insured Coverage Are All the Rage, But You Deserve Better

Evidence puzzle piece

The acceptance of insurance certificates is often viewed as standard industry practice, but should it be?

August 30, 2021
Joseph L. Cohen, W. Mason & Sean Milani-nia - ConsensusDocs

Consider the following scenario: the construction project is ready to proceed. The deal is done. The agreements have all been carefully crafted, with detailed provisions on insurance dedicated to reducing risk. Those provisions require the downstream trade contractors to furnish certificates of insurance listing the owner and prime contractor as additional insureds on the downstream contractor’s policies of insurance. A provision in the prime contract further requires the prime contractor to provide the owner with a certificate of insurance showing the owner as an additional insured on the prime contractor’s policies. At the ceremonial ground-breaking and right before work commences, the downstream contractors deliver their insurance certificates to the prime contractor and the prime contractor delivers its certificate plus the downstream certificates to the owner. From there, each insurance certificate will begin its final destination to the project file (either electronic or physical) where, with any luck, it will serve the regular stint before being discarded after the project’s successful conclusion. Otherwise, it will be retrieved under much stress and heavy scrutiny. The acceptance of insurance certificates is often viewed as standard industry practice, but should it be?

The answer is a resounding “no.” There are many form development and construction agreements in circulation that deem insurance certificates to be acceptable evidence of insurance. But, a certificate of insurance should not be relied upon because it does not mean that insurance has been placed. You deserve real evidence that the requisite additional insured coverage is in place (in the form of a policy endorsement), and here is why.

Reprinted courtesy of Joseph L. Cohen, Fox Rothschild, W. Mason, Fox Rothschild and Sean Milani-nia, Fox Rothschild
Mr. Cohen may be contacted at jlcohen@foxrothschild.com
Mr. Mason may be contacted at wmason@foxrothschild.com
Mr. Milani-nia may be contacted at smilani@foxrothschild.com


Ten ACS Lawyers Recognized as Super Lawyers or Rising Stars

Gold stars on white background

ACS is very honored and pleased to announce ten members of their firm were awarded the distinction of top attorneys in Washington.

August 30, 2021
Cameron Sheldon - Ahlers Cressman & Sleight PLLC

ACS is very honored and pleased to announce ten members of our firm were awarded the distinction of top attorneys in Washington. Our blog articles usually cover Construction Legal News, but we feel this is a newsworthy accolade to be shared with friends and clients.

To become candidates to receiving the Super Lawyer nomination, lawyers are nominated by a peer or identified by research. After completing this first step in the process, Super Lawyer’s research department analyzes 12 indicators, such as experience, honors/awards, verdicts/settlements, and others. As for the third step, there is a peer evaluation by practice area. Finally, for step four, candidates are grouped into four firm-size categories. In other words, solo and small firm lawyers are compared only with other solo and small firm lawyers, and large firm lawyers are compared with other large firm lawyers. The process is very selective and only 5 percent of the total lawyers in Washington are nominated as Super Lawyers.

John P. Ahlers, one of the firm’s founding partners, was recognized as the third Top Lawyer out of all Washington lawyers in the State.

Named partner Scott R. Sleight and partner Brett M. Hill were both recognized as one of the 100-Best Lawyers in the State.

Ms. Sheldon may be contacted at cameron.sheldon@acslawyers.com


Agreement Authorizing Party’s Own Engineer to Determine Substantial Compliance Found Binding on Adverse Party

Chain links

A complaint and various cross-complaints were filed between the parties, in which each alleged that the others were responsible for the mudslide and resulting damage.

August 30, 2021
Garret Murai - California Construction Law Blog

When it comes to resolving construction disputes it’s a bit like the “31 Flavors” of Baskin Robins. There’s a flavor for nearly everyone. From mediation, to arbitration, to litigation, to dispute resolution boards (DRBs), to the architect as the “initial decision maker” under AIA contracts, parties and their counsel have developed numerous ways to resolve disputes on construction projects, including by expert review.

But if you’re going to agree to a dispute resolution procedure, make sure it’s one you can live with, because if you don’t, it’s often going to be too late to go back to the proverbial drawing board as the parties in the next case discovered.

The Coral Farms Case

In December 2010, a mudslide impacted three properties in San Juan Capistrano, California. One of the properties was owned by Coral Farms, L.P., another by Paul and Susan Mikos, and the third by Thomas and Sonya Mahony.

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


Breaking The Ice: A Policyholder's Guide to Insurance Coverage for Texas Winter Storm Uri Claims

Winter storm rural area

Presented by Saxe Doernberger & Vita, P.C.’s Natural Disaster Recovery Group

August 30, 2021
Kelly A. Johnson - Saxe Doernberger & Vita, P.C.

The devastating extreme cold weather event in Texas often referred to as Winter Storm Uri, which lasted from February 14 to February 18, 2021, caused significant damages to homes and businesses in the region. Temperatures during the winter storm were the coldest on record since 1883, with some areas reaching as low as negative 6 degrees.4 Millions of Texans were impacted and many lives were lost.

Insurance analysts predict that Uri will lead to the largest number of insurance claims in the state, totaling $20 billion in claimed losses.5 In fact, Uri is set to surpass Hurricane Harvey as the most devastating natural disaster in Texas, which resulted in $19 billion in insured losses. Further, Uri will be the largest insured loss from a United States winter storm in the industry’s history.6

The catastrophic Uri losses range from damage to property caused by the bursting of frozen pipes, collapsed roofs, weakened structures, loss of power, lack of public utility services, and the expenses incurred in the disruption of normal business operations. In addition, some commercial businesses were unable to operate due to bad weather conditions on the roads, while others were forced to halt operations due to power outages.

Ms. Johnson may be contacted at KJohnson@sdvlaw.com


'Right to Repair' and Fixing Equipment in a Digital Age

Workers repairing machine

The issue of Right to Repair touches any device with embedded systems, with implications for the construction equipment sector.

August 30, 2021
Jeff Rubenstone - Engineering News-Record

When a piece of equipment breaks down on site, rental agreements, subcontractor contracts and other arrangements generally make it clear who gets to open the hood and start tinkering. But heavy equipment made in the last two decades increasingly relies on digital components for many basic functions. Embedded computer systems oversee electronically controlled hydraulics and regulate engine behavior and emissions-control systems. The tools to access these firmware and software systems are not always easy to come by, and in some cases repairs can’t be done without working directly with a manufacturer-approved dealer or technician. Some repairs may require a digital handshake to take effect.

Reprinted courtesy of Jeff Rubenstone, Engineering News-Record

Mr. Rubenstone may be contacted at rubenstonej@enr.com

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