Construction Owners & Builders Law Blog

Y'all Politics (Alan Lange)

http://yallpolitics.com/index.php/yp/index

Mississippi Injury Lawyer Blog (Robert Kisselburgh)

http://www.mississippiinjurylawyerblog.com/

Mississippi Family Law Blog (Robert Kisselburgh)

http://www.mississippifamilylawblog.com/

Ipse Blogit (Matt Eichelberger, Jim Craig))

http://ipseblogit.blogspot.com/

The Louisiana Employment Law Blog (Norman Mott)

http://thelouisianaemploymentlawblog.blogspot.com/

NMissCommentor (Tom Freeland)

http://nmisscommentor.com/

MS Litigation Review and Commentary (Phillip Thomas)

http://www.mslitigationreview.com/

Foundation Problems - Blame Global Warming or Your Contractor?

"You love your home and then it turns on you," The New York Times reports one homeowner said when he discovered the foundation of his home was cracking, crumbling and moving. Repairing unstable foundations costs homeowners around $4 billion a year and that cost often is not covered by insurance.

Frequently, the shifting is the result of contractions and expansions triggered by soil drying out from lack of rain or being flooded by excessive rain. Kate Murphy, writing for The New York Times, reports in "Shifting Soil Threatens Homes’ Foundations" that some experts believe these shifts are due to global warming.

But weather does not let builders, engineers and architects off the legal hook. They are supposed to consider soil conditions and how that soil might expand and contract during dry and wet weather conditions in designing and building the foundations of homes and other buildings.

New Lead Paint Rules for Renovation of Homes Built Pre-1978

On April 21, new lead paint rules applicable to housing and certain child care schools and facilities built prior to 1978 go into effect. Lead exposure can cause brain damage; exposure prior to age six is especially dangerous.

Contractors and owners can find the EPA's regulations on lead paint in Title 40, Part 745 of the Code of Federal Regulations.

Visit The Illinois Construction Law Blog for a great summary of these new rules.

Amen!

"To listen to talk radio, to watch TV pundits, to read a newspaper's online message board, is to realize that increasingly, we are a people estranged from critical thinking, divorced from logic, alienated from even objective truth. We admit no ideas that do not confirm us, hear no voices that do not echo us, sift out all information that does not validate what we wish to believe. I submit that any people thus handicapped sow the seeds of their own decline; they respond to the world as they wish it were rather to the world as it is."

]]> ( columnist Leonard Pitts). More on the "Demons of Stupidity" over at The Louisiana Employment Law Blog.

Snow Damage in DC

The Virginia Real Estate and Land Use & Construction Law Blog reports that the recent blizzard in Washington caused a wave of roof collapses. Undoubtedly questions will be raised about the design and construction of some of these structures by owners and their property insurers. . Seeing photos of the damage reminds me again why I love living in Mississippi. It snows for a day then goes away.

Tax Warning to all Federal Contractors

The Federal Contracting Law Blog reports that in January President Obama signed a presidential memorandum instructing the IRS to audit all federal contractors. The audit will prevent companies that owe back taxes from obtaining more federal work.

Defective Pipe Installed by Mississippi Cities and Counties?

State and local governments across the country may have to replace their water systems because of defective PVC pipes, according to a whistle-blower lawsuit filed in California against JM Eagle, one of the worlds largest pipe manufacturers, reports the New York Times.

The whistle blower claims that the manufacturer fabricated test results. We will be monitoring developments in this case.

Mississippi High Court gets it right (again) in Insurance Coverage Dispute

In a long awaited decision, the Mississippi Supreme Court ruled last week in Architex Association, Inc. v. Scottsdale Insurance Company (PDF) that construction defects caused by subcontractor negligence are occurrences(accidents) triggering coverage under the terms of a general contractors’s commercial general liability policy.

The Court’s decision is a huge victory for all the major players in residential and commercial construction. The biggest winners may be homeowners, developers, schools and state and local agencies. The cost of remedying a construction defect and the diminished value of a building caused by a construction defect often greatly exceeds the original cost of construction. Absent insurance coverage, homebuilders and general contractors often do not have the wherewithal to indemnify the owner for these legitimate damages.

]]> Of moment, the Supreme Court rejected the reasoning of a 2003 decision by the Fifth Circuit Court of Appeals, ACS Construction Company v. CGU, which held that construction defects caused by a subcontractor's negligence was not an occurrence because the hiring of the subcontractor to do the work was an intentional act not an accident. The Supreme Court concluded that the defective work would be considered accidental if it was the result of subcontractor negligence rather than intentional misconduct. Whether the defect was the result of an accident or intentional misconduct turns on the subcontractor's conduct not the general contractor's hiring decision.

Architex is the second Supreme Court decision in the last six months rejecting the Fifth Circuit’s interpretation of Mississippi insurance law. In October , the Supreme Court held in Corban v. USAA Insurance Company (PDF), that the anti-concurrent causation clauses in a homeowners’ insurance policy inapplicable when wind and water did not act in conjunction in causing Katrina-related damages,rejecting a contrary Fifth Circuit decision.

Architech’s lead counsel was Dorsey R. Carson of Burr and Forman. Cheri Turnage Gatline of Burr and Forman also participated in oral argument.

Carson and his team bolstered the persuasiveness of their argument by persuading an incredibly impressive number of organizations to either file friend of the court briefs or to join in Architech’s brief. Most of the major contractor associations supported Architex: Associated General Contractors of America; Associated General Contractors of Mississippi; Mississippi Asphalt Pavement Association, Inc.; Associated Builders and Contractors; Mississippi Associated Builders and Contractors, Inc.; American Subcontractors; American Subcontractors Association of Mississippi. In addition, Architex’s position was supported by The Mississippi Insurance Department, the Mississippi Attorney General and the state agencies responsible for state and university construction projects.

Hat tip to Will Bardwell.

Continued Performance Clause Held Unenforceble

The Real Estate and Construction Blog summarizes a Califonia appellate court recently held a "continued performace clause" is not enforceable when the owner commits a material breach.]]> Real Estate and Construction Blog points out that the decision eviscerates the purpose of the clause: "To the extent Barton Properties holds that a continued performance clause is unenforceable when the owner's breach is material, and remains enforceable when a party's breach is minor or immaterial, such clauses would add little or nothing to the parties' legal relationship that is not already part of California law. "