Last week I was honored to once again have the opportunity to write a guest post for Virginia construction lawyer and mediator Chris Hill’s Construction Law Musings. The title of the post: Hard to Handle. The subject: How to manage the increasing complexity (and costs) of today’s construction claims and disputes. (more…)
Denver Post’s John Aguilar reports on a recently decided case that will set a precedent for how condominium associations in Colorado address construction defect issues with the developer of a given project:
The Colorado Supreme Court gave builders a reason to cheer Monday, ruling that a homeowners association in Centennial was wrong to ignore a requirement that it first get consent from the developer before changing the way disputes over construction defects claims are handled.
The 5-2 ruling in Vallagio at Inverness Residential Condo Association v. Metro. Homes, Inc. upholds a “consent-to-amend” provision that the builder had placed in the declarations for the project, which stated that binding arbitration would be used in any construction defects disputes and that changing that stipulation would need the consent of the builder.
The Vallagio homeowners association decided to move ahead with a lawsuit against the builder without first getting its consent to change the dispute resolution method from binding arbitration.
Just last month, the Colorado Governor signed a bill into law requiring a majority of a homeowner association’s members to agree to join a lawsuit. Even with the new law, and this new case law, don’t expect a rush of new condo construction in Colorado any time soon.
Denver Post’s Brian Eason writes:
Declaring that the measure “will help make our housing more affordable,” Gov. John Hickenlooper on Tuesday signed into law one of the most hard-fought compromises of the 2017 session — a bill that will make it more difficult to sue builders for shoddy condo construction.
Business leaders for years have been seeking wholesale reforms to the state’s construction defects laws, blaming the state’s dormant condominium market on a legal environment that they say enables an excessive amount of lawsuits against developers. That, they argue, drives up insurance costs, leading developers to avoid building condos entirely in favor of rentals.
House Bill 1279, which took effect immediately when the governor signed it Tuesday, requires a majority of a condo complex’s unit owners — rather than just its homeowner association board — to consent to legal action against a developer for poor construction.
In a previous article at the Denver Post, various parties weighed in on the then-pending bill and the reasons why such legislation isn’t a panacea for creating more housing.
Every year at West Coast Casualty’s Construction Defect Seminar, at least one panel discussion is held on a new or innovative way of resolving construction disputes as efficiently, effectively and most importantly, as inexpensively as possible. This year is no exception.
Once again, West Coast Casualty Service is hosting their annual construction defect seminar at the Disneyland Hotel. As I have done in past years, I decided to liveblog some of the topics featured. One of the panels scheduled that I did not want to miss was a topic on the evolving role of women in the construction claims and risk management industry.
Thomas Musca, writing for ArchDaily, compiled a list of nine examples of the worst architectural claims, disputes and lawsuits:
What did Pritzker Prize winner Frank Gehry get when he designed the Stata Center, an exuberantly whimsical academic complex for MIT? A very large check, plus a major lawsuit, alleging negligence and breach of contract due to rampant leaks, mold, cracks, drainage problems and sliding ice. Sometimes the most inspired designs can go awry. And when they do, some clients lawyer up. Here are 9 fascinating examples.
Kenneth W. Cobleigh, managing director and counsel of AIA Contract Documents, writing for Construction Executive, highlighted some of the major impacts that the 2017 revision to the fairly ubiquitous A201 contract language might have on projects:
The single most significant 2017 revision to the A201 Family is the creation of an Insurance and Bonds Exhibit to accompany the key owner-contractor agreements.
Apologies to Mr. Shakespeare, but it seems that right now across the internet, a lot of attention is being paid to how the word “engineer” is defined. Merriam Webster, a fairly respected dictionary, offers three definitions of the word, engineer:
- “a designer or builder of engines”
- “a person who is trained in or follows as a profession a branch of engineering”
- “a person who carries through an enterprise by skillful or artful contrivance.”
Melissa Dewey Brumback, a partner at North Carolina-based Ragsdale Liggett PLLC, recently tackled the subject of what to do as design professional if you have received a “Reservation of Rights” letter from your insurer as part of a claim against your firm. As she explains:
Reservation of Rights (ROR) letters are sent for a variety of reasons- most notably, when some portion of the construction lawsuit against you is not covered under your E&O policy. The letter must state the reason(s) that the ROR is being issued.
With the ROR, the insurance company is telling you that it reserves the right to withdraw from your defense and/or deny payment of damages at a later date, depending upon how facts in the case develop. The notice is intended to let you know that there *may* be issues later, and to put you notice that you have the right to hire your own lawyer (at your own expense) to protect yourself from that future potential risk.
In a follow-up post, Brumback focuses on a question many A/E/C professionals involved in disputes have: “Do I really need my own lawyer if the insurer is giving me one?” Brumback’s response is worth paying attention to:
The short answer is that you do not *have* to hire your own lawyer. But, it can be very useful. And, it can be done economically so you don’t have to break the piggy bank. You see, if you hire your own lawyer, they can be “back up” and simply monitor the lawsuit, while the insurance-retained lawyer does the yeoman’s work. That way, if the insurance carrier begins to make noise about filing a declaratory judgment to deny the claim, you have your own lawyer already in place, knowledgeable about what’s happened in the case from the get-go. But if the insurance company never “pulls the trigger” on denying the claim, then your private lawyer’s involvement (and bill) will be minimal.
When I was working with the facilities management staff at San Diego’s iconic Air & Space Museum on the path to LEED Certification under the Existing Buildings Operations and Maintenance program, I got a chance to see a really cool tool that could on its own improve safety statistics for construction workers. Especially for the DIY-ers and volunteers of the world that like working with their hands — and keeping those hands intact!
The product is called SawStop and has been patented for some time. The way the device works is relatively easy to explain, but complicated in its design and execution. A portable table saw used for cutting wood, the SawStop table saw implements a unique blade assembly that can detect the presence of human (or other) flesh, triggering a chain reaction that stops the blade from spinning and then drops the blade assembly down into the saw’s housing — all of this happens in less than a second.
Great product idea, right? That’s what a competing manufacturer thought. Construction Junkie has more on the aftermath following Bosch’s infringement on SawStop’s intellectual property:
In January of 2017, the US International Trade Commission (ITC) ruled in favor of SawStop and effectively halted Bosch from “importing, selling, marketing, advertising, distributing (except for exportation), and soliciting United States agents or distributors for imported table saws,” according to a press release from SawStop.
SawStop’s President, Dr. Stephen Glass applauded the decision, saying “When Bosch chose to introduce the Reaxx saw in disregard of our patents, they left us with no alternative but to take action in court. We have defended our innovation, our hard work, and our investments in developing SawStop technology, and we are pleased that the ITC ordered the exclusion of products that use our patented inventions without a license and confirmed the strength of those patents. We are grateful for the U.S. patent system for encouraging and protecting innovations and we look forward to continuing to supply the market with safer saws.”
Bosch reportedly plans to appeal the ruling.
Since today is Friday, here’s a video demonstrating the brilliance of the SawStop product.