714.701.9180
CONSTRUCTION DEFECT NEWS
Risk reward sign

The “implied warranty” is a promise that Colorado law is “implied” into every contract for a sale of a new home that the home was built in a workmanlike manner and is suitable for habitation.

Implied Warranty Claims–Not Just a Seller’s Risk: Builders Beware!

Monday, May 10, 2021 — Carin Ramirez - Colorado Construction Litigation

One of the thorns in the side of every construction defect defense litigator is the implied warranty claim. The “implied warranty” is a promise that Colorado law is “implied” into every contract for a sale of a new home that the home was built in a workmanlike manner and is suitable for habitation. Defense attorneys dislike the implied warranty claim because it is akin to a strict liability standard. All that is required to provide the claim is that an aspect of construction is found to be defective — i.e., inconsistent with the building code or manufacturer’s installation instructions — regardless of whether the work was performed to the standard of care. The implied warranty claim is therefore easier to prove than a negligence claim, where a claimant must prove that a construction professional’s work fell below a standard of reasonable care. Additionally, it is not a defense to an implied warranty claim that the homeowners or the HOA are, themselves, partially liable for the defects where damage is due in part to insufficient or deferred maintenance, as it is for negligence claims. The only redeeming aspect to the implied warranty claim was that, until recently, it was believed that it could only be asserted by a first purchaser against the seller of an improvement, because the implied warranty arises out of the sale contract.

Recently, the Colorado Court of Appeals opinion in Brooktree Village Homeowners Association v. Brooktree Village, LLC, 19CA1635, decided on November 19, 2020, extended the reach of the implied warranty — though just how far remains to be seen. Specifically, a division of the Court of Appeals held that an HOA can assert implied warranty claims on behalf of its members for defects in common areas, even where there is no direct contractual relationship between the parties to base the warranty upon.

Reprinted courtesy of Carin Ramirez, Higgins, Hopkins, McLain & Roswell, LLC

Ms. Ramirez may be contacted at ramirez@hhmrlaw.com

Read the full story…
Law book open on desk in front of bookshelf

The UTPCPL is a Pennsylvania statute that prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

Saved By The Statute: The Economic Loss Doctrine Does Not Bar Claims Under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law

Monday, May 10, 2021 — Gus Sara - The Subrogation Strategist

In Earl v. NVR, Inc., No. 20-2109, 2021 U.S. App. LEXIS 6451, the U.S. Court of Appeals for the Third Circuit (Third Circuit) considered whether, under Pennsylvania law, the plaintiff’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims against the builder of her home were barred by the economic loss doctrine. The UTPCPL is a Pennsylvania statute that prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” 73 Pa. Stat. Ann. § 201-3. The Third Circuit previously addressed the impact of the economic loss doctrine on UTPCPL claims in Werwinski v. Ford Motor Co., 286 F.3d 661 (3d Cir. 2002). In Werwinski, the court held that the plaintiff’s UTPCPL claim was barred by the economic loss doctrine. The Court of Appeals overturned its decision in Werwinski and held that the economic loss doctrine does not bar UTPCPL claims since such claims are statutory, and not based in tort.

In Earl, the plaintiff, Lisa Earl, entered into an agreement with defendant NVR, Inc. (NVR) for the construction and sale of a home in Allegheny County, Pennsylvania. Ms. Earl learned of the home through NVR’s marketing, which described the home as containing “quality architecture, timeless design, and beautiful finishes.” Ms. Earl alleged that during the construction of the home, she had further discussions with agents of NVR, who made representations that the home would be constructed in a good and workmanlike manner and that any deficiencies noted by Ms. Earl would be remedied. The defendant also assured Ms. Earl that the home would be constructed in accordance with relevant building codes and industry standards. After moving into the home, Ms. Earl discovered several material defects in the construction. She provided notice of these defects to NVR, but NVR’s attempts to repair some of the defects were inadequate.

Reprinted courtesy of Gus Sara, White and Williams

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

Read the full story…
Failure in ripped paper

The School District suffered $3.5 million in property damage after Hurricane Harvey struck.

Claims against Broker for Insufficient Coverage Fail

Monday, May 10, 2021 — Tred R. Eyerly - Insurance Law Hawaii

After a coverage dispute for damage caused by Hurricane Harvey was settled, the insured's claims against its insurance broker for providing insufficient coverage were dismissed. Hitchcock Indep. Sch. Dist. v. Arthur J. Gallagher & Co., 2021 U.S. Dist. LEXIS 57452 (S.D. Texas Feb. 26, 2021).

The School District suffered $3.5 million in property damage after Hurricane Harvey struck. Its insurers denied coverage and the School District sued. During the litigation, the School District learned that the policies contained an arbitration clause and a New York choice of law provision. Rather than pursue its claims in arbitration, the School District settled with its insurers and sued its broker for failing to obtain insurance without arbitration or choice of law provisions. The broker moved to dismiss

The School District claimed that it had to settle with the insurers for less than what it would have settled had the arbitration and choice of law provisions not been in its policies. The court found this novel theory to be based upon pure speculation

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

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

Read the full story…
714.701.9180

New Orleans Officials Select Developer for $1-Billion Riverfront Project

May 10, 2021 — Autumn Cafiero Giusti - Engineering News-Record

Plans for a $1-billion riverfront entertainment district moved forward after New Orleans convention center officials selected a developer to transform an adjacent, 39-acre site into the new destination.

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

714.701.9180

New York’s App. Div., Second Dept. Addresses Policy Exhaustion Issue, But Doesn’t Resolve Lower Court Split

May 10, 2021 — Sarah Rubin - Lewis Brisbois

New York’s Appellate Division, Second Department recently issued a decision in Alleviation Medical Svcs. v. Allstate Ins. Co., 2021 N.Y. Slip Op. 08159 (App. Div., 2nd Dept. 2/24/21), which was anticipated to specifically address the issue of whether an insurer would be required to pay in excess of the $50,000 policy limit if a court or arbitrator determined that a previously denied claim should have been paid. In New York, the Appellate Division is a higher court than the Appellate Term and, thus, its decisions take precedence over Appellate Term decisions.

Ms. Rubin may be contacted at Sarah.Rubin@lewisbrisbois.com

714.701.9180

Beverly Hills Homeowner Scores $83 Million Loan to Expand Mansion

May 10, 2021 — Suzanne Woolley, Tom Maloney & Benjamin Stupples - Bloomberg

It’s very L.A.: Dream big and borrow big.

Byron Allen, a former comedian and television host who’s now an entertainment mogul, is borrowing as much as $82.8 million tied to his Beverly Hills mansion, according to a person with knowledge of the deal.

714.701.9180

Save the Date: 2021 West Coast Casualty Seminar

May 10, 2021 — Beverley BevenFlorez – CDJ Staff

Due to the Covid-19 pandemic, the 27th annual West Coast Casualty Seminar has been moved to October 6th-8th of this year. In addition, the location has been changed to the Aria Hotel in Las Vegas, Nevada. As always, the seminar will cover “the prosecution, defense, insurance coverage, science and technology regarding this specialized subject of claims and litigation.” Attendees come “from the legal, insurance, builder, contractor, subcontractor and numerous other communities averaging in number approximately 1400 per year.” Keep checking the West Coast Casualty Service, Inc.website for updates.

October 6th-8th, 2021
Aria Resort & Casino
3730 S Las Vegas Blvd
Las Vegas, NV 89158

714.701.9180
Featured Experts For More Visit Us At:
www.constructiondefectjournal.com

Consulting Civil Engineer and General Contracting Expert Witness Arrange No Charge Initial Consultation Concerning Your Matter. area area

Consulting Civil Engineer and General Contracting Expert Witness Arrange No Charge Initial Consultation Concerning Your Matter. area area

Consulting General Contractor and Building Expert Witness Specializing in Construction Remediation and defect claims area areaarea

California flag on globe

Attorneys Valerie A. Moore and Kathleen E.M. Moriarty analyze Wexler v. California Fair Plan Association.

Court of Appeal Holds Only “Named Insureds” May Sue for Bad Faith Under California FAIR Plan Policy

Monday, May 10, 2021 — Valerie A. Moore & Kathleen E.M. Moriarty - Haight Brown & Bonesteel LLP

In Wexler v. California Fair Plan Association (No. 303100, filed 4/14/21), Brooke Wexler’s parents insured their residence, which was located in a mountainous high-fire risk area, with a California FAIR Plan Association owner-occupied dwelling policy. The policy only listed Wexler’s parents and did not name Wexler, their adult child, under the policy’s “Insured Name” section. The FAIR Plan expressly disclaimed coverage for “unnamed people,” referred to by the court as the “no-coverage-for-unnamed-persons clause.”

FAIR Plan was created by the Legislature in 1968 and is a joint reinsurance association created to give homeowners in high risk areas access to basic property insurance and is a self-described “insurer of last resort.”

Reprinted courtesy of Valerie A. Moore, Haight Brown & Bonesteel LLP and Kathleen E.M. Moriarty, Haight Brown & Bonesteel LLP

Ms. Moore may be contacted at vmoore@hbblaw.com
Ms. Moriarty may be contacted at kemoriarty@hbblaw.com


Read the full story…
Illustration of man planting tree

My take is that sustainable design and construction projects present the same type of risk profile as other construction projects, with the caveat that there may be “a little more."

Green Construction Claims: More of the Same

Monday, May 10, 2021 — Christopher G. Hill - Construction Law Musings

For this week’s Guest Post Friday, Musings welcomes back Timothy R. Hughes, Esq., LEED AP. Tim (@timrhughes on Twitter) is a Shareholder in the Arlington, Virginia firm of Bean, Kinney & Korman, P.C. In his practice as a business, corporate, and construction law attorney, Tim was the Chair of the Construction Law and Public Contracts Section of the Virginia State Bar. He was recognized by Virginia Lawyer’s Weekly as a 2010 “Leader in the Law” and a member of the Legal Elite for Construction Law for 2010 by Virginia Business Magazine. A regular speaker and writer, Tim is the lead editor of his firm blog, Virginia Real Estate, Land Use and Construction Law.

Green construction liability risk has received a lot of discussion over time. My take is that sustainable design and construction projects present the same type of risk profile as other construction projects, with the caveat that there may be “a little more”. A little more risk. A little more lack of predictability. A little more process overlay. Thus, green construction claims really are just “more of the same”.

I have watched and participated in the discussion. With regards to the Chesapeake Bay Foundation building, the reality is that any project can face challenges of product specification and performance, green or not. We can see plenty of examples where products have created tremendous risk and liability to the construction industry, the avalanche of EIFS litigation and Chinese drywall standing as just two of the most recent examples. A product failed, but that is nothing truly new.

Reprinted courtesy of The Law Office of Christopher G. Hill

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

Read the full story…
Businessman pointing at digital model

Hydrogen does not emit carbon dioxide when burnt and could therefore help reduce the climate impact of buildings, which in aggregate represent one of the biggest emitters of greenhouse gases after industry and surface transport.

Hydrogen Powers Its Way from Proof of Concept to Reality in Real Estate

Monday, May 10, 2021 — Victoria Judd, Sidney L. Fowler & Robert G. Howard - Gravel2Gavel Construction & Real Estate Law Blog

Hydrogen is the new buzzword in every industry, and real estate is no exception. Hydrogen does not emit carbon dioxide when burnt and could therefore help reduce the climate impact of buildings, which in aggregate represent one of the biggest emitters of greenhouse gases after industry and surface transport. To the extent that hydrogen is to become an important power source globally, it will need to enter the domestic power market. The first step appears to be the development of pilot villages.

In the UK, there are several hydrogen trials in uninhabited properties or in closed private networks. There are some uninhabited houses on a Royal Air Force base in Cumbria that are exclusively heated with hydrogen and also a private gas network at Keele University which uses 20 percent hydrogen blended with natural gas. In addition, there is a small village near Newcastle that is being used as a test case: for a period of 10 months starting in spring 2021, up to 20 percent hydrogen will be blended into the natural gas network so that more than 650 homes can be partially heated by hydrogen. It is expected that a small number of additional villages will be able to heat their homes with 100 percent hydrogen as soon as 2022, with a scale up to have a hydrogen town by 2030.

Reprinted courtesy of Victoria Judd, Pillsbury, Sidney L. Fowler, Pillsbury and Robert G. Howard, Pillsbury

Ms. Judd may be contacted at victoria.judd@pillsburylaw.com
Mr. Fowler may be contacted at sidney.fowler@pillsburylaw.com
Mr. Howard may be contacted at robert.howard@pillsburylaw.com


Read the full story…
714.701.9180
CONSTRUCTION DEFECT NEWS
Conflict Resolution buttons

The case of Lemos v. Sessa deals with two noteworthy principles when it comes to arbitration that warrant another post about arbitration provisions.

Courts Generally Favor the Enforcement of Arbitration Provisions

Monday, May 10, 2021 — David Adelstein - Florida Construction Legal Updates

In recent posts (here and here) I have discussed arbitration provisions and cases dealing with the enforceability of arbitration provisions.

The case of Lemos v. Sessa, 46 Fla.L.Weekly D701a (Fla. 3d DCA 2021) deals with two noteworthy principles when it comes to arbitration that warrant another post about arbitration provisions.

First, courts will and should try to resolve any ambiguity in arbitration provisions in favor of arbitration.

Second, when there is an offending arbitration provision or one that includes language that violates public policy, the trial court “should sever the offending provisions from the arbitration clause so long as such severance does not undermine the parties’ intent.” Lemos, supra. This principle is reinforced when the arbitration provision is in an agreement that contains a severability provision.

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

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

Read the full story…
Gold stars on white background

Mr. Hummel has assisted in carrying out the charge of the CJCP, namely, to enhance professionalism among Georgia’s lawyers.

Bert Hummel Appointed to Chief Justice’s Commission on Professionalism

Monday, May 10, 2021 — Bert Hummel - Lewis Brisbois

Atlanta Partner Bert Hummel was recently appointed to the Chief Justice’s Commission on Professionalism (CJCP) for the 2020-2021 term. In this role, Mr. Hummel has assisted in carrying out the charge of the CJCP, namely, to enhance professionalism among Georgia’s lawyers. Mr. Hummel’s appointment follows his participation on the Grants Committee and the Professionalism Committee of the CJCP. In addition, Mr. Hummel was selected as one of seven members of CJCP’s Benham Awards Subcommittee, which recognizes Georgia attorneys who dedicate their practice or time to serving the public and profession.

“I am honored to be appointed to a body that continually strives to do so much good for both the legal profession and the community at large. For the past several months, I have appreciated the work the Commission has undertaken to promote professionalism in the practice of law through educational programming while also promoting community service programs through the CJCP’s Grants Committee that I served on as well. I look forward to continuing to serve with my colleagues at the CJCP to promote our shared goals. I also relish the opportunity to serve during a time in which professionalism is of the utmost importance as we navigate through the COVID-19 pandemic made even more unique and special by the fact this is the last year Chief Justice Melton will serve as chair after announcing his retirement from the Supreme Court effective at the end of the Bar year.”

Reprinted courtesy of Bert Hummel, Lewis Brisbois

Mr. Hummel may be contacted at Bert.Hummel@lewisbrisbois.com

Read the full story…
How 3D Text with question mark

Whether by necessity or by accident, what should contractors do if they develop a unique tool to accomplish some portion of their work faster, easier or less expensively?

How to Protect a Construction-Related Invention

Monday, May 10, 2021 — Patrick Barthet - Construction Executive

They say necessity is mother of invention. That was surely true for Johan Vaaler, who in 1899 decided he was tired of having to sew pages together to keep them organized. Voila, enter the paper clip. This wasn’t the case for Percy Spencer. He was a radar tube designer working at Raytheon who, while working in front of an active radar set, noticed the candy bar in his pocket started to melt. Exploring the phenomenon further, he placed corn kernels in front of the radar and behold, he ended up with the world’s first microwaved popcorn. He patented the microwave oven in 1945.

Whether by necessity or by accident, what should contractors do if they develop a unique tool to accomplish some portion of their work faster, easier or less expensively? How do they protect it from misappropriation by competitors, or by an errant employee? We are all familiar with the fact that in today’s internet-driven market, it has become very easy to reverse engineer and knock off an innovative product.

The best way to safeguard an invention is, of course, to register it with the appropriate government agency:the United States Patent and Trademark Office (USPTO). Generally done with the assistance of a patent lawyer, the process is neither inexpensive or abbreviated. It could cost several thousand dollars and take 12 to 18 months. But, more importantly, this is not sufficient. Inventors must regularly monitor their patents to police possible infringers. Many folks think the USPTO does this, but it does not.

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

Mr. Barthet may be contacted at pbarthet@barthet.com

Read the full story…

Openbuilt - A Solution to The Built Environment's Connectivity Problems

714.701.9180
CONSTRUCTION DEFECT NEWS
Construction hat gloves plans

While the United States is the wealthiest county in the world it currently ranks 13th when it comes to the overall quality of its infrastructure.

Biden Unveils $2.3 Trillion American Jobs Plan

Monday, May 10, 2021 — Garret Murai - California Construction Law Blog

This past week, President Biden unveiled his American Jobs Plan, a $2.3 trillion dollar plan to upgrade the nation’s infrastructure over 8 years.

As we wrote about this past month, the American Society of Civil Engineers recently issued its 2021 Infrastructure Report Card which gave the country’s infrastructure a cumulative grade point average across several areas including roads, public transportations and schools of a disappointing C-. According to a White House fact sheet on the American Jobs Plan, while the United States is the wealthiest county in the world it currently ranks 13th when it comes to the overall quality of its infrastructure.

Infrastructure spending at the federal level has historically been paid for through the gas tax. Currently, that tax is 18.4 cents per gallon for gasoline and 24.4 cents per gallon for diesel. The last time the federal gas tax was increased, however, was nearly 30 years ago in 1993. The reason for this long hiatus? Voter backlash and backlash by big businesses whose fleets still primarily rely on fossil fuels and diminishing returns as the number of electrical and hybrid vehicles increasingly hit the streets.

Reprinted courtesy of Garret Murai, Nomos LLP

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

Read the full story…


Red block amidst white blocks

The doctrine of caveat emptor has teeth.

Caveat Emptor (“Buyer Beware!”) Exceptions

Monday, May 10, 2021 — David Adelstein - Florida Construction Legal Updates

There is value to a seller when it comes to entering into an as-is transaction and stating that the seller has NOT made any representation or warranty, all such representations or warranties are disclaimed, the buyer is NOT relying on any representation of the seller, and that the buyer is relying on its own inspection of the property. This shifts the onus to the buyer to undertake the inspection or due diligence it needs to take relating to the property it wants to buy.

With respect to commercial property transactions:

The doctrine of caveat emptor, which Florida courts continue to apply, “places the duty to examine and judge the value and condition of the property solely on the buyer and protects the seller from liability for any defects.” There are, however, three exceptions to this doctrine, including: “1) where some artifice or trick has been employed to prevent the purchaser from making independent inquiry; 2) where the other party does not have equal opportunity to become apprised of the fact; and, 3) where a party undertakes to disclose facts and fails to disclose the whole truth.”

Florida Holding 4800, LLC v. Lauderhill Mall Investment, LLC, 46 Fla. L. Weekly D785b (Fla. 4th DCA 2021).

These three exceptions to caveat emptor, or the doctrine of buyer beware, are not easy to prove because it places a burden on a buyer to prove an active effort from the seller to conceal a material fact to skirt around the as-is language. Again, this is not an easy burden to prove.

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

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

Read the full story…


Construction site

President sets ambitious goals to restart U.S. economy and push job growth and climate change strategy.

Biden's Next 100 Days: Major Impacts Expected for the Construction Industry

Monday, May 10, 2021 — Tom Ichniowski, Pam Radtke Russell & Bruce Buckley - Engineering News-Record

As President Joe Biden’s busy first 100 days in office—which included enactment of a $1.9-trillion pandemic rescue bill and proposals for two other massive measures—wrap up, the months ahead also are expected to generate plenty of legislative and regulatory action with major impact for the construction sector.

Reprinted courtesy of Tom Ichniowski, ENR, Pam Radtke Russell, ENR and Bruce Buckley, ENR

Mr. Ichniowski may be contacted at ichniowskit@enr.com
Ms. Russell may be contacted at Russellp@bnpmedia.com

Read the full story...





Possible Impossible buttons

The city’s 2013 bankruptcy ushered in a new era of problem-solving that could be a model for a national infrastructure push, says one philanthropic leader.

Detroit Showed What ‘Build Back Better’ Can Look Like

Monday, May 10, 2021 — Rip Rapson - Bloomberg

American cities stand at a precipice. Burdened by an overwhelming public health crisis, drained of resources by economic stagnation and torn apart by racial injustice and unrest, cities are confronting the reality that conventional formulas of municipal finance and practices of working cannot sustain our urban places.

The significance of this moment was not lost on the Biden-Harris administration, which quickly advanced an ambitious mandate commensurate with the challenge: a domestic Marshall Plan called Build Back Better. Already, the first prong — the $1.9 trillion American Rescue Plan — has helped shore up city budgets, restore desperately needed funding for public transportation and keep businesses open and families in homes. The second leg, the $2 trillion American Jobs Plan, represents a bold shift from short-term recovery to long-term transformation.

Reprinted courtesy of Rip Rapson, Bloomberg
Read the full story…


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

714.701.9180
714.701.9180
714.701.9180
Construction Defect Journal is aggregated from a variety of news sources, article submissions, contributors, and information from industry professionals.
No content on this site should be construed as legal advice or expert opinion. By viewing this site you agree to be bound by its terms and conditions CONSTRUCTION NEWS constructiondefecteminars.html constructionDefectChannel.html contactCDJ.html