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    Alabama Builders Right To Repair Current Law Summary:

    Current Law Summary: Although there is case law precedent for right to repair, Title 6 Article 13A states action must be commenced within 2 years after cause and not more than 13 years after completion of construction.


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    Home Builders Association of Dothan & Wiregrass Area
    Local # 0132
    PO Box 9791
    Dothan, AL 36304
    Slocomb Alabama Building Consultant 10/ 10

    Enterprise Home Builders Association
    Local # 0133
    PO Box 310861
    Enterprise, AL 36331
    Slocomb Alabama Building Consultant 10/ 10

    Home Builders Association of Metro Mobile Inc
    Local # 0156
    1613 University Blvd S
    Mobile, AL 36609

    Slocomb Alabama Building Consultant 10/ 10

    Baldwin County Home Builders Association
    Local # 0184
    916 PLantation Blvd
    Fairhope, AL 36532

    Slocomb Alabama Building Consultant 10/ 10

    South Alabama Home Builders Association
    Local # 0102
    PO Box 190
    Greenville, AL 36037
    Slocomb Alabama Building Consultant 10/ 10

    Home Builders Association of Alabama
    Local # 0100
    PO Box 241305
    Montgomery, AL 36124

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    Greater Montgomery Home Builders Association
    Local # 0164
    6336 Woodmere Blvd
    Montgomery, AL 36117

    Slocomb Alabama Building Consultant 10/ 10


    Building Consultant News and Information
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    Insured's Remand of Bad Faith Action Granted

    Exculpatory Provisions in Business Contracts

    Quick Note: Lis Pendens Bond When Lis Pendens Not Founded On Recorded Instrument Or Statute

    Wall Failure Due to Construction Defect Says Insurer

    Court Extends Insurer Rights to Equitable Contribution

    N.J. Voters Approve $116 Million in School Construction

    Ninth Circuit Holds that 1993 Budget Appropriations Language Does Not Compel the Corps of Engineers to use 1987 Wetlands Guidance Indefinitely

    The Contract Disputes Act: What Every Federal Government Contractor Should Know

    Couple Claims ADA Renovation Lead to Construction Defects

    Premises Liability: Everything You Need to Know

    Pollution Created by Business Does Not Deprive Insured of Coverage

    Terminating the Notice of Commencement (with a Notice of Termination)

    More thoughts on Virginia Mechanic’s Liens

    Deterioration Known To Insured Forecloses Collapse Coverage

    Banks Rejected by U.S. High Court on Mortgage Securities Suits

    Florida extends the Distressed Condominium Relief Act

    Construction Attorneys Tell DBR that Business is on the Rise

    More Money Down Adds to U.S. First-Time Buyer Blues: Economy

    Alert: AAA Construction Industry Rules Update

    Are “Green” Building Designations and Certifications Truly Necessary?

    Failing to Adopt a Comprehensive Cyber Plan Can Lead to Disaster

    43% of U.S. Homes in High Natural Disaster Risk Areas

    Colorado Senate Committee Approves Construction Defect Bill

    Allegations that Carrier Failed to Adequately Investigate Survive Demurrer

    Orange County Home Builder Dead at 93

    Montrose Language Interpreted: How Many Policies Are Implicated By A Construction Defect That Later Causes a Flood?

    Specific Performance of an Option Contract to Purchase Real Property is Barred Absent Agreement on All Material Terms

    Mass. Gas Leak Follows NTSB Final Report, Call for Reforms

    Construction Defect Headaches Can Be Avoided

    Supplement to New California Construction Laws for 2019

    PA Superior Court Provides Clarification on Definition of CGL “Occurrence” When Property Damage Is Caused by Faulty Building Conditions

    Georgia Court of Appeals Holds That Policyholder Can “Stack” the Limits of Each Primary Policy After Asbestos Claim

    Developer Africa Israel Wins a Round in New York Condominium Battle

    Construction Defects in Home a Breach of Contract

    Triggering Duty to Advance Costs Same Standard as Duty to Defend

    Defining Construction Defects

    Mediation v. Arbitration, Both Private Dispute Resolution but Very Different Sorts

    What is a Personal Injury?

    Construction Defect Bill a Long Shot in Nevada

    Terminating A Subcontractor Or Sub-Tier Contractor—Not So Fast—Read Your Contract!

    Miller Wagers Gundlach’s Bearish Housing Position Loses

    Palo Alto Proposes Time Limits on Building Permits

    House Bill Clarifies Start Point for Florida’s Statute of Repose

    Preparing for the 2015 Colorado Legislative Session

    Assembly Bill 1701 Contemplates Broader Duty to Subcontractor’s Employees by General Contractor

    CSLB Reminds California Public Works Contractors to Renew Their Public Works Registration

    Umbrella Policy Must Drop Down to Assist with Defense

    Insurer's Judgment on the Pleadings Based Upon Expected Injury Exclusion Reversed

    General Contractors Must Plan to Limit Liability for Subcontractor Injury

    Certified Question Asks Washington Supreme Court Whether Insurer is Bound by Contradictory Certificate of Insurance
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    SLOCOMB ALABAMA BUILDING CONSULTANT
    DIRECTORY AND CAPABILITIES

    The Slocomb, Alabama Building Consultant Group is comprised from a number of credentialed construction professionals possessing extensive trial support experience relevant to construction defect and claims matters. Leveraging from this considerable body of experience, BHA provides construction related trial support and expert services to the nation's most recognized construction litigation practitioners, Fortune 500 builders, commercial general liability carriers, owners, construction practice groups, and a variety of state and local government agencies.

    Building Consultant News & Info
    Slocomb, Alabama

    Warning! Danger Ahead for Public Entities

    July 30, 2019 —
    Public entities are known to assert False Claims actions “to up the ante” to intimidate and aggressively address contractor construction claims. This strategy in the case of John Ross of Industrial Sheet Metal, Inc. (JRI) V. City of Los Angeles Department of Airports (LAWA), 29 Cal. App. 5th 378 (2018), backfired on the public entity, LAWA, in a big way and should serve as a warning to public entities about expanding claims to include False Claim actions. In this case, LAWA was awarded $1 in contract damages, its California False Claims Act (CFCA) claim was rejected by the jury as were JRI’s claims against LAWA. Despite losing on the substantive contract claims, the trial court found that JRI “prevailed in the action” under the relevant CFCA fee provision, Government Code 12652, subd. (g)(9)(B), regardless of JRI’s failure to prevail in the action as a whole. The California Appellate Court (hereinafter “Court”) affirmed the trial court’s finding. The CFCA is analogous to the federal False Claims Act (FFCA; 31 U.S.C. 3729 et seq.). Since the CFCA is patterned on similar federal legislation, it was appropriate for the Court to look to precedent construing this similar federal act in interpreting the CFCA provisions. Accordingly, the Court looked at the False Claims Act cases for guidance in upholding the trial court’s decision in its determination that JRI was the “prevailing party” for determining an attorney’s fees award against LAWA. Read the court decision
    Read the full story...
    Reprinted courtesy of Michael J. Baker, Snell & Wilmer
    Mr. Baker may be contacted at mjbaker@swlaw.com

    Despite Feds' Raised Bar, 2.8B Massachusetts Offshore Wind Project Presses On

    November 04, 2019 —
    Developers of the 800-MW, 84-turbine Vineyard Wind offshore wind energy farm in Massachusetts, set to be the first and largest commercial-scale project in the U.S., say they are committed to pushing through its $2.8-billion construction despite a sudden Trump administration permitting setback. Reprinted courtesy of Mary B. Powers, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the court decision
    Read the full story...
    Reprinted courtesy of

    Standard of Care

    December 16, 2019 —
    One of the key concepts at the heart of Board complaints and civil claims against a design professional is whether or not that design professional complied with the applicable standard of care. In order to prevail on such a claim, the claimant must establish (typically with the aid of expert testimony) that the design professional deviated from the standard of care. On the other side of the coin, to defend a design professional against a professional malpractice claim, defense counsel attempts to establish that – contrary to the claimant’s allegations – the design professional, in fact, complied with the standard of care. Obviously, it becomes very important in such a claim situation to determine what the standard of care is that applies to the conduct of the defendant design professional. Often, this is easier said than done. There is no dictionary definition or handy guidebook that identifies the precise standard of care that applies in any given situation. The “standard of care” is a concept and, as such, is flexible and open to interpretation. Traditionally, the standard of care is expressed as being that level of service or competence generally employed by average or prudent practitioners under the same or similar circumstances at the same time and in the same locale. In other words, to meet the standard of care a design professional must generally follow the pack; he or she need not be perfect, exemplary, outstanding, or even superior – it is sufficient merely for the designer to do that which a reasonably prudent practitioner would do under similar circumstances. The negative or reverse definition also applies, to meet the standard of care, a practitioner must refrain from doing what a reasonably prudent practitioner would have refrained from doing. Although we have this ready definition of the standard of care, in any given dispute it is practically inevitable that the parties will have markedly different opinions as to: (1) what the standard of care required of the designer; and (2) whether the defendant design professional complied with that requirement. The claimant bringing a claim against a design professional typically will be able to find an expert reasonably qualified (at least on paper) who will offer an opinion that the defendant failed to comply with the standard of care. It is just as likely that the counsel for the defendant design professional will be able to find his or her own expert who will counter the opinion of the claimant’s expert and maintain that the defendant design professional, in fact, complied with the standard of care. What’s a jury to think? The concept of standard of care is intertwined with the legal concept of negligence. In the vast majority of law suits against design professionals, a claimant (known as the plaintiff) will assert a claim for negligence against the design professional now known as the defendant.1 As every first year law student learns while studying the field of “Torts,” negligence has four subparts. In order for a defendant to be found negligent, the claimant must establish four elements: (1) duty; (2) breach; (3) causation; and (4) damages. In other words, to establish a claim against a defendant design professional, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care but breached that duty and, as a result, caused the plaintiff to suffer damages. Read the court decision
    Read the full story...
    Reprinted courtesy of Jay Gregory, Gordon & Rees Scully Mansukhani
    Mr. Gregory may be contacted at jgregory@grsm.com

    The Murky Waters Between "Good Faith" and "Bad Faith"

    September 30, 2019 —
    In honor of Shark Week, that annual television-event where we eagerly flip on the Discovery Channel to get our fix of these magnificent (and terrifying!) creatures, I was inspired to write about the “predatory” practices we’ve encountered recently in our construction insurance practice. The more sophisticated the business and risk management department is, the more likely they have a sophisticated insurer writing their coverage. Although peaceful coexistence is possible, that doesn’t mean that insurers won’t use every advantage available to them – compared to even large corporate insureds, insurance companies are the apex predators of the insurance industry. In order to safeguard policyholders’ interests, most states have developed a body of law (some statutory, some based on judicial decisions) requiring insurers to act in good faith when dealing with their insureds. This is typically embodied as a requirement that the insurer act “fairly and reasonably” in processing, investigating, and handling claims. If the insurer does not meet this standard, insureds may be entitled to damages above and beyond that which they could otherwise recover for breach of contract. Proving that an insurer acted in “bad faith,” however, can be like swimming against the riptide. Most states hold that bad faith requires more than just a difference of opinion between insured and insurer over the available coverage – the policyholder must show that the insurer acted “wantonly” or “maliciously,” or, in less stringent jurisdictions, that the insurer was “unreasonable.” Read the court decision
    Read the full story...
    Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita
    Ms. Guertin may be contacted at tag@sdvlaw.com

    Illinois Favors Finding Construction Defects as an Occurrence

    September 23, 2019 —
    A recent Illinois Appellate Court’s decision in, Acuity Ins. Co. v. 950 West Huron Condominium Owners Association, 2019 IL App (1st) 180743 (2019), strengthens Illinois’ precedent favoring construction defects as an occurrence under a Commercial General Liability (“CGL”) insurance policy. Acuity also broadens an insurance carrier’s obligation to defend its insured against construction defect allegations. In Acuity, the court determined whether claims for construction defect filed against a subcontractor, triggered a duty to defend under a CGL policy. To make its determination, the court focused on the subcontractor’s scope of work. The court notes that a subcontractor normally contracts for a discrete scope of work on a project. Unlike a general contractor, who has control over or contractual obligations for all aspects of the project, a subcontractor does not have those board responsibilities. The court explained that “[f]rom the eyes of the subcontractor, the ‘project’ is limited to the scope of its own work, and the precise nature of any damage that might occur to something outside of that scope is as unknown or unforeseeable as damage to something entirely outside of the construction project.” Accordingly, the court in Acuity held that when a complaint alleges that a subcontractor’s negligence caused damage to a part of the construction project outside of the subcontractor’s scope of work, the allegations are enough to trigger the insurer’s duty to defend the subcontractor under a CGL policy. The court’s decision in Acuity relied on a similar Illinois Appellate Court decision, Milwaukee Mut. Ins. Co. v. J.P. Larsen, Inc., 956 N.E.2d 524 (Ill. App. 2011). In Larsen, the court reached a similar conclusion where a third-party complaint by a general contractor against a subcontractor alleged that the subcontractor’s improper window caulking caused water intrusion and property damage to other parts of the building. The court in Larsen held that because the complaint alleged not only construction defects, but also damage to other property outside the subcontractor’s scope of work, the insurer had a duty to defend the subcontractor. Read the court decision
    Read the full story...
    Reprinted courtesy of Ashley L. Cooper, Saxe Doernberger & Vita, P.C.
    Ms. Cooper may be contacted at alc@sdvlaw.com

    Quick Note: Don’t Forget To Serve The Contractor Final Payment Affidavit

    July 30, 2019 —
    If you are a contractor in DIRECT CONTRACT with an owner, serve a contractor final payment affidavit on the owner, as a matter of course, and without any undue delay, particularly if you are owed money and have recorded a construction lien. In numerous circumstances, I like to serve the contractor final payment affidavit with the construction lien. The contractor final payment affidavit is not a meaningless form. It is a statutory form (set forth in Florida Statute s. 713.06) required to be filled out by a lienor in direct privity of contract with an owner and served on the owner at least 5 days prior to the lienor foreclosing its construction lien. The contractor final payment affidavit serves as a condition precedent to foreclosing a construction lien. Failure to timely serve a contractor final payment affidavit should result in a dismissal of the lien foreclosure lawsuit, presumably by the owner moving for a motion for summary judgment. This should not occur. Read the court decision
    Read the full story...
    Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
    Mr. Adelstein may be contacted at dma@kirwinnorris.com

    Construction Contract Provisions that Should Pique Your Interest

    September 30, 2019 —
    Construction contracts are a big part of my legal practice and the drumbeat here at Construction Law Musings. Why? Because not only does your construction contract set the expectations and “rules of the game” for a construction project, it will be read strictly and literally by the Virginia courts should there be a dispute. For these reasons, construction professionals need to be alert for the language in certain key clauses in a construction contract to assure that these clauses are as balanced as possible and also well understood. Here are my “Top Five”:
    1. “Pay if Paid”- These clauses are almost always in the subcontracts between a general contractor and a subcontractor and are enforceable in Virginia if drafted correctly and under the proper circumstances.
    2. Change Orders- Whether work is subject to a change order and the required payment for any changed work are often a key source of contention (read legal fees). A properly drafted and followed change order provision can help avoid much of this contention.
    3. Indemnity- Much has been made in recent years about indemnity provisions and their enforceability. All parties in the construction payment chain can and should be aware of how to best draft their indemnity provisions to make them enforceable. Failure to do so can be catastrophic.
    Read the court decision
    Read the full story...
    Reprinted courtesy of The Law Office of Christopher G. Hill
    Mr. Hill may be contacted at chrisghill@constructionlawva.com

    Delays Caused When Government (Owner) Pushes Contractor’s Work Into Rainy / Adverse Weather Season

    January 13, 2020 —
    There are a number of horizontal construction projects where a contractor’s sequence of work and schedule is predicated on avoiding the rainy season (or certain force majeure events). The reason is that the rainy season will result in delays due to the inability to work (and work efficiently) during the adverse weather (including flooding caused by the weather). If the work is pushed into the rainy season, is such delay compensable if the government (or owner) delayed the project that pushed work out into the rainy season? It very well can be. For example, in Meridian Engineering Co. v. U.S., 2019 WL 4594233 (Fed. Cl. 2019), a contractor was hired by the Army Corps of Engineers to construct a flood control project for a channel in Arizona. Due to delays, including those caused by the government, the project was pushed into the monsoon season, which caused additional delays largely due to flooding caused by the heavy rain. One issue was whether such delays were compensable to the contractor – the government raised the argument that the contractor assumed the risk of potential flooding from the rainy season. The Court found this argument unconvincing:
    [The contractor’s] initial construction schedule planned for a completion of the channel invert work, a necessary step in protecting the site from flooding, to be completed by late June 2008…[M]any issues arose in the project’s early stages that led to cumulative substantial delay, including those caused by the government’s failure….The government cannot now claim that [the contractor] assumed the risk of flooding from monsoon season when the government was largely responsible for [the contractor’s] inability to complete the project prior to the beginning of the monsoon season. Simply put, the government cannot escape liability for flood damages when the government is responsible for causing the contractor to be working during the flood-prone season. Meridian Engineering, 2019 WL at *7 (internal citations omitted)
    Read the court decision
    Read the full story...
    Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
    Mr. Adelstein may be contacted at dma@kirwinnorris.com