ANAHEIM CALIFORNIA BUILDING CONSULTANT
DIRECTORY AND CAPABILITIES

Insured Fails to Provide Adequate Proof of Water Damage Through Roof

December 10, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court granted the insurer's motion for summary judgment due on the insured's claims for water damage to a church. Unity Church of God in Christ of York v. Church Mutual Ins. Co., 2024 U.S. Dist. LEXIS 163204 (M.D. Pa. Sept. 11, 2024). Unity Church alleged that it suffered a sudden and accidental direct physical loss to its church. Wind damage to the roof of the church allowed rainwater to leak into the sanctuary of the church. Notice was given to Church Mutual Insurance Company, but coverage was denied. Unity Church filed suit alleging breach of contract. Church Mutual answered and asserted a counterclaim for a declaratory judgment that the water damage to the church was outside the policy's coverage because the damage was caused by rain. Church Mutual filed for summary judgment. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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“It Just Didn’t Add Up!”

November 05, 2024 — Daniel Lund III - Lexology
Overturning arbitration awards in court is difficult. One of the few bases for a challenge to an award (under the Federal Arbitration Act, 9 U.S.C. 10(a)(4), as well as most state arbitration laws) is where the arbitrator is alleged to have “exceeded [his/her] powers” afforded the arbitrator by whatever rules and agreements are in place for the arbitration. Obviously, this places a burden on the arbitrator to “color within the lines” when serving as arbitrator and issuing rulings in the case. “After extensive discovery and a 10-day hearing, the Tribunal rendered a 142-page” award, whereupon the parties both sought to have the arbitrators correct what the parties agreed was an error in the award – increasing the award by $47,710. One of the parties, however, went further, urging that the arbitrators “erroneously included damages for claims related to production revenue” that occurred before a certain date. According to the court, that party was urging that “the Tribunal erred by factoring into its award damages related to Claims 2 and 3, which the Tribunal never substantially addressed.” Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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First Circuit Finds No Coverage For Subcontracted Faulty Work

December 17, 2024 — Eric Hermanson & Austin Moody - White and Williams LLP
After almost two years' deliberation, the First Circuit last week issued its long-awaited decision in Admiral Ins. Co. v. Tocci Bldg. Corp.[1]: affirming on other grounds, and leaving in place a district court decision that found subcontracted faulty work was not an "occurrence" and did not lead to covered “property damage” under Massachusetts law. The decision leaves Massachusetts among a number of states where general contractors should not expect coverage from their commercial general liability (CGL) insurers for damage falling within the contractor’s scope of work. Since the "scope of work" – where general contractors are involved – often encompasses an entire project, contractors who want coverage in Massachusetts should take care to make alternative arrangements: transferring risk to subcontractors through indemnity provisions and additional-insured endorsements, or relying on other policy forms where available. Reprinted courtesy of Eric Hermanson, White and Williams LLP and Austin Moody, White and Williams LLP Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com Mr. Moody may be contacted at moodya@whiteandwilliams.com Read the full story...

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Five Issues to Consider in Government Contracting (Or Any Contracting!)

September 02, 2024 — David Adelstein - Florida Construction Legal Updates
The appeal of Appeals of – Konecranes Nuclear Equipment & Services, LLC, ASBCA 62797, 2024 WL 2698011 (May 7, 2024) raises interesting, but important, issues that should be considered. In this case, the government (in a supply contract) procured four portal cranes from the claimant. After an initial test of one of the cranes failed, the government refused to accept delivery even after the issue was addressed by the claimant. The government did not accept the manner in which the claimant addressed the issue and would only accept cranes if the claimant employed “an unnecessary alternative solution [that] caused further delay and increased [claimant’s] costs.” On appeal, it was determined the government’s decision to delay delivery based on its demand for the alternative solution was not justified, i.e., constituted a breach of contract. Below are five issues of consideration in government contracting, or, for that matter, any contracting. Issue #1- Patently Ambiguous Specifications The government argued that the specifications were patently ambiguous and because the claimant failed to inquire regarding the ambiguous specifications prior to performance, its interpretation of the ambiguous specifications should govern. The contractor countered that the specifications were unambiguous and it met the specifications. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Construction and AI: What Contractors Need to Know from ABC’s New Report

November 05, 2024 — Aarni Heiskanen - AEC Business
The Associated Builders and Contractors (ABC) has just released its fourth annual construction technology report, which dives deep into AI’s evolving role in the construction industry. “ABC contractor members and the overall contracting community want more information on AI and how it can help them improve safety, quality and profitability—and win more work,” said Matt Abeles, ABC vice president of construction technology and innovation. The newly released ABC AI Tech Report delivers on this need, highlighting AI-driven case studies, resources, and thought leadership from ABC’s Tech Alliance. Understanding AI’s Role in Construction The report provides a comprehensive AI Resource Guide, breaking down the basics of artificial intelligence and how it applies to construction. Understanding AI is key for contractors to stay competitive in the rapidly changing industry. Read the full story...
Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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¡AI Caramba!

January 07, 2025 — Daniel Lund III - Lexology
You can’t make this up. That’s what a federal judge in Texas told an attorney whom it was sanctioning for impermissible reliance on artificial intelligence in preparing a brief to the court. “Pending before the court is the question of whether Plaintiff's counsel… should be sanctioned for submitting a response brief to the court that includes case cites generated by artificial intelligence that refer to nonexistent cases as well as to nonexistent quotations.” Counsel for the defendant in the case – pursuing summary judgment for a tire manufacturer in a wrongful termination lawsuit – pointed up in a reply brief that the opposition brief of the plaintiff cited two purported – and as it turned out, nonexistent – unpublished decisions: Roca v. King's Creek Plantation, LLC, 500 F. App'x 273, 276 (5th Cir. 2012) and Beets v. Texas Instruments, Inc., No. 94-10034, 1994 WL 714026, at *3 (5th Cir. Dec. 16, 1994), and quotations from as many as six other apparently-existing cases but which were unable to be found within the reported decisions. Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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New York’s Highest Court Weighs in on N.Y. Labor Law

September 23, 2024 — Bill Wilson - Construction Law Zone
N.Y. Labor Law § 241(6) requires owners and contractors to provide reasonable and adequate protection and safety to persons employed at or lawfully frequenting a construction site. If a worker is injured on a construction site and establishes a violation of a specific and applicable Industrial Code regulation, both the owner and contractor will be held vicariously liable for the worker’s injury, without regard to their fault and even in the absence of control or supervision of the worksite. The Court of Appeals of New York recently addressed the broad scope of the Labor Law in the context of slipping hazards. In Bazdaric v. Almah Partners, LLC, 41 N.Y.3d 310 (2024), the plaintiff, an injured painter, slipped and fell on a plastic covering placed over an escalator in an area he was assigned to paint. The plaintiff claimed that the plastic covering was a foreign substance for purposes of Industrial Code 12 NYCRR 23-1.7(d) because it was not part of the escalator. Industrial Code 12 NYCRR 23-1.7(d) states:

Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

Read the full story...
Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

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Flushing Away Liability: What the Aqua Engineering Case Means for Contractors and Subcontractors

October 21, 2024 — Heather Zipperer - Colorado Construction Litigation Blog
The recent Town of Mancos v. Aqua Engineering case is an insightful example of how well written contracts and timely legal action can make all the difference in resolving disputes between municipalities, general contractors, and subcontractors. The ruling favored Aqua Engineering; a subcontractor that played a role in a wastewater treatment facility project gone wrong. The court’s decision highlighted key legal principles, including the economic loss rule and the importance of well-structured contracts in construction disputes. Whether you are a subcontractor looking to avoid undue liability or a general contractor seeking to ensure subcontractors shoulder their fair portion of responsibility, this case offers valuable lessons for all parties involved in construction projects. The Background: A Wastewater Project with Issues In 2008, the Town of Mancos, Colorado, hired Souder, Miller & Associates (“SMA”) to design a new wastewater treatment facility. SMA subcontracted Aqua Engineering to help implement a specific wastewater treatment system known as the Multi-Stage Activated Biological Process (“MSABP”). However, after construction, the facility never worked as expected. For years, the Town faced ongoing issues, and despite Aqua’s involvement in attempts to fix the problems, the facility remained dysfunctional. Read the full story...
Reprinted courtesy of Higgins, Hopkins, McLain & Roswell, LLC

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