Christopher Hill (no relation to yours truly) is a longtime construction law attorney and mediator practicing out of Richmond, Virginia. His blog, Construction Law Musings, has always been one of my must-read sources of news and insight pertaining to construction law ever since he started it in late 2008. Be sure to follow @constructionlaw on Twitter for the latest updates from a true thought leader in the art and science of resolving construction disputes. Without further ado, I am proud to present Mr. Hill’s guest post on a topic that I couldn’t agree with more — the business case for why the mediation process is so critical to the A/E/C industry.

First of all, thanks to Brian for his invitation to discuss a passion of mine, mediation, at his great AEC Forensics blog.  I read it regularly and so should you. (more…)

Stuart Kaplow posted an update at Green Building Law Update on a settlement between the Federal Trade Commission (FTC) and four paint manufacturers over "unsubstantiated" claims regarding paint products marked as free of volatile organic compounds (VOCs). Per California law, paints sold for residential application must meet stringent requirements regarding VOC content, and as is often the case, other jurisdictions have followed California's lead.

Here's more:

The four companies, Benjamin Moore & Co., Inc., ICP Construction Inc., YOLO Colorhouse, LLC, and Imperial Paints, LLC, have agreed to consent orders that would bar them from making unqualified VOC free and emission free claims.

VOCs are chemical compounds that easily evaporate at room temperatures. All paints emit chemicals during the painting process and while drying. Some of these chemicals can be harmful to the environment and people, especially to sensitive groups such as babies and those suffering from asthma or allergies. Arguably there is no zero VOC paint, but that was not the basis of these complaints.

In these four complaints, the FTC charged each company with making “unsubstantiated” claims that their paints were free of emissions and/or that they contained no VOCs, without any qualification (e.g., after X number of hours). The FTC also charged the companies with facilitating deception by retailers who sold their paint. Additionally, in its complaints against Benjamin Moore and ICP Construction, the FTC alleged that the companies marketed their paint using “Green Promise” and “Eco Assurance” environmental seals, respectively, without disclosing to consumers that they had awarded the seal to their own products.

In the past, several paint manufacturers got busted over misleading claims regarding VOC content because while the white base paints free of any pigment could indeed meet ultra-low VOC requirements, the pigments themselves contained extremely high levels of VOCs. So a contractor trying to comply with state law might inadvertently violate that law if the customer requested any other color besides white.

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.

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.

(more…)

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.

(more…)

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:

  1. “a designer or builder of engines”
  2. “a person who is trained in or follows as a profession a branch of engineering”
  3. “a person who carries through an enterprise by skillful or artful contrivance.”

(more…)