Illinois Joins the Pack on Defective Construction as an Occurrence
December 16, 2023 —
Anna M. Perry - Saxe Doernberger & Vita, P.C.Illinois joins the majority of states finding “property damage that results inadvertently from faulty work can be caused by an ‘accident’ and therefore constitute an ‘occurrence’.”
The Illinois Supreme Court’s ruling in Acuity v. M/I Homes of Chicago, LLC1 (“Acuity v. M/I Homes”) is the first high court ruling in Illinois on this critical coverage issue for contractors. M/I Homes of Chicago, LLC (“M/I Homes”) constructed a townhome development. After completion, water entered the townhomes resulting in interior water damage. The townhome owners’ association filed suit against M/I Homes alleging it, or its subcontractors, caused the damage because it used defective materials, conducted faulty workmanship, and failed to comply with applicable building codes (the “Underlying Action”).
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Anna M. Perry, Saxe Doernberger & Vita, P.C.Ms. Perry may be contacted at
APerry@sdvlaw.com
Florida Federal Court to Examine Issues of Alleged Arbitrator Conflicts of Interests in Panama Canal Case
May 24, 2021 —
Sarah B. Biser & Philip Z. Langer - ConsensusDocsThe parties in a $238-million dispute over the construction of the third set of locks for the Panama Canal are raising issues concerning alleged conflicts of interest on the part of the International Chamber of Commerce (“ICC”) arbitrators in the United States District Court for the Southern District of Florida.[2] The case may address rarely litigated issues concerning whether arbitrators who sit on multiple arbitration panels together or who support appointment of each other to lead arbitration panels have disabling conflicts of interest.
The case pits Grupo Unidos por el Canal, S.A. (“Grupo”), a consortium of Spanish, Italian, Belgian, and Panamanian construction firms, against Autoridad del Canal de Panama (“ACP”), the Panamanian entity that operates the Panama Canal and that sponsored the multi-billion-dollar, decade-long project to expand the Canal’s capacity by building a new set of locks (the “Project”). The current dispute (the “Panama 1 Arbitration”), which centers on the suitability of the rock coming from the excavations to be used to produce concrete aggregates for the Project, was arbitrated before a three-member ICC Tribunal and resulted in a $238-million award to ACP and against Grupo. The ICC Tribunal reversed a decision of the dispute review board established in the parties’ contract.
Reprinted courtesy of
Sarah B. Biser, Fox Rothschild LLP and
Philip Z. Langer, Fox Rothschild LLP
Ms. Biser may be contacted at sbiser@foxrothschild.com
Mr. Langer may be contacted at planger@foxrothschild.com
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NLRB Hits Unions with One-Two Punch the Week Before Labor Day
November 18, 2019 —
John Baker & Robert Pettigrew - White and Williams LLPThe National Labor Relations Board (the Board) continues to modify the way employers, unions and employees view and relate to each other in the workplace. In two decisions right before Labor Day, the Board strengthened employer rights in their workplaces, while at the same time making life for their union counterparts more difficult.
On August 23, 2019, the Board revisited the issue of whether an employer must grant access to the off-duty employees of an onsite contractor so they can engage in Section 7 activities on the employer’s property. In general, Section 7 activities consist of employees acting together to improve their pay and working conditions, which constitute fundamental rights under the National Labor Relations Act (the Act). In Bexar County Performing Arts Center Foundation d/b/a Tobin Center, the San Antonio-based performing arts center, the Tobin Center, owned the Center as well as grounds that abutted the famed San Antonio River Walk. The Tobin Center housed three resident companies, one of which was the Ballet San Antonio with whom it had a licensor-licensee agreement.
In addition to plays, movies and other productions, the Tobin Center hosted the San Antonio Symphony (the Symphony) to perform for 22 weeks of the year. The Ballet San Antonio also occasionally utilized the Symphony for live musical performances at its ballets. When, however, the Ballet San Antonio decided to use recorded music for a particular production, off-duty employees of the Symphony protested by leafletting the public on the Tobin Center property. The leaflets advised the public of this decision and urged that they “DEMAND LIVE MUSIC!” Their protests were not directed at the property owner, who denied them access to its property.
Reprinted courtesy of
John Baker, White and Williams LLP and
Robert Pettigrew, White and Williams LLP
Mr. Baker may be contacted at bakerj@whiteandwilliams.com
Mr. Pettigrew may be contacted at pettigrewr@whiteandwilliams.com
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David M. McLain, Esq. to Speak at the 2014 CLM Claims College
August 13, 2014 —
David M. McLain, Esq. – Colorado Construction LitigationDavid McLain will be a speaker at the School of Construction. The Claims College will be held from September 7-10 in Philadelphia, Pennsylvania. Mr. McLain is a founding member of Higgins, Hopkins,McLain & Roswell, LLC, a firm which specializes in construction law and construction litigation throughout Colorado. Mr. McLain received his undergraduate degree from Colorado State University, graduating cum laude, and his law degree from the University of Denver, College of Law. Mr. McLain completed the Claims and Litigation Management Alliance Litigation Management Institute, earning the designation from that organization as a Certified Litigation Management Professional. He has a general civil litigation practice with an emphasis on the defense of complex construction lawsuits on behalf of developers and general contractors. As a result of the experience gained by defending some of Colorado’s largest residential construction defect lawsuits, developers, general contractors, and subcontractors seek out Mr. McLain to consult on risk avoidance and risk management strategies. Currently among his clients are several of the state’s largest home builders, regional and custom builders, and numerous insurance carriers. Mr. McLain is an AV® Preeminent™ Peer Review Rated attorney by Martindale-Hubbell and is a regular speaker at local, regional, and national seminars regarding construction defect litigation in Colorado.
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Evaluating Smart Home Technology: It’s About More Than the Bottom Line
May 03, 2021 —
James W. McPhillips & Rachel Newell - Gravel2Gavel Construction & Real Estate Law BlogOutfitting a commercial real estate space with smart technology can be a significant cost. While the long-term benefits and strategic improvements we’ve discussed previously can make that investment worthwhile, the evaluation period is critical to ensure an impactful ROI. Property developers, owners, and managers should undertake a rigorous evaluation process to ensure the technology procurement aligns with the project’s overall financial plan. And this is not just about getting the cost right. If the technology does not meet the needs of the space, then all the smart technology in the world will not prevent the project from being a sunk cost.
Do the Research so You Know …
The Technology. While the RFP is a key step of the procurement process, a more informal research phase should be undertaken first. Smart technology is a rapidly evolving field, and before reaching out to vendors, the business should ensure that it understands what is available—both in terms of the kinds of technology that can be implemented, and the various companies that offer solutions. Gathering this information early will yield results that align more closely with a particular building’s needs.
Reprinted courtesy of
James W. McPhillips, Pillsbury and
Rachel Newell, Pillsbury
Mr. McPhillips may be contacted at james.mcphillips@pillsburylaw.com
Ms. Newell may be contacted at rachel.newell@pillsburylaw.com
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Liquidated Damages: A Dangerous Afterthought
January 15, 2019 —
Trevor B. Potter - Construction ExecutiveOwners and contractors frequently treat liquidated damages provisions as an afterthought, but they deserve to be treated as a key deal term. If a contractor breaches a contract by failing to complete the work in a timely manner, the remedy is typically an agreed upon amount or rate of liquidated damages.
Liquidated damages provisions seldom get more than a cursory, “back of the napkin” analysis, or worse, parties will simply plug in a number. This practice is dangerous because liquidated damages typically represent the owner’s sole remedy for delay and, more importantly, they are subject to attack and possible invalidation if certain legal standards are not met. The parties to a construction contract should never agree to an amount of liquidated damages without first attempting to forecast and calculate actual, potential damages.
Reprinted courtesy of
Trevor B. Potter, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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The Private Works: Preliminary Notice | Are You Using the Correct Form?
August 20, 2019 —
William L. Porter, Esq. - Porter Law GroupThe Private Works – Preliminary Notice form which contractors, subcontractors and suppliers had become accustomed to using for many years changed in 2004. Despite this change in law, many in the construction industry have still not started using the correct new form. Changes in the law, championed by the American Subcontractors’ Association, gave a significant new benefit to subcontractors and suppliers by giving the subcontractor or supplier some expectation of actually receiving notice of when a Notice of Completion or a Notice of Cessation has been recorded on many private works projects. The law also changed the language of the California Preliminary Notice that subcontractors and suppliers must use to protect their mechanics’ lien, bond claim and stop payment notice rights. If Owners do not send out the Notice of Completion as required by law they incur a diminishing of the protections afforded to them when they record a Notice of Completion or Notice of Cessation on many private works projects.
The revised law requires private project owners to notify all subcontractors and suppliers within 10 days after recording a Notice of Completion or Notice of Cessation that a Notice of Completion or a Notice of Cessation has actually been recorded. In order to receive such notice, the subcontractor or supplier must properly serve the new form of Preliminary Notice. If this properly occurs and the private project owner provides the required notice, then the subcontractor or supplier will have 30 days to record a Mechanics’ Lien. However, if an owner under such circumstances fails to properly notify a subcontractor or supplier within 10 days after recording a Notice of Completion or Notice of Cessation, then the Subcontractor or supplier will have 90 days to record a Mechanics’ Lien. The details of the law can be found in California Civil Code sections 8190, 8414 and 8416.
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William L. Porter, Esq., Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Constructive Notice Established as Obstacle to Relation Back Doctrine
March 01, 2021 —
Nicholas B. Brummel & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPIn Organizacion Comunidad de Alviso v. City of San Jose, the Sixth Appellate District held that the relation back doctrine was inapplicable where a plaintiff received constructive notice of a defendant’s identity months prior to the last date where filing was permitted pursuant to an applicable statute of limitations.
In Organizacion Comunidad de Alviso, Mark Espinoza, an Organizacion Comunidad de Alviso (OCA/Plaintiff) representative, asked the City of San Jose (“the city”) to place him on the public notice list for a proposed rezoning project. He also twice specifically requested a copy of the notice of determination (NOD) documenting the city’s certification of an environmental impact report (EIR) and approval of the project. Despite Espinoza diligently requesting all notices for the project, the city, in violation of the California Environmental Quality Act (CEQA), failed to send Espinoza the legally operative second NOD for the project; the first NOD was provided to OCA, but named an incorrect party in interest.
Reprinted courtesy of
Nicholas B. Brummel, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Brummel may be contacted at nbrummel@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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