Construction Owners & Builders Law Blog

Here are reports from California, Illinois, Texas, Pennsylvania, South Carolina, Connecticut, Florida and Arkansas. Mold woes from summer humidity continue to torture school districts.

The Construction Risk.com Report points to a Wisconsin appellate court decision holding a contract clause permitting an architect to rely on reports from other firms does not relieve the architect of its duty to inform the owner of inadequacies in the report and the need for additional investigation.

The National Arbitration Forum Blog posts on the myth that arbitration is causing the decline in jury trials; the high cost of trying a case is behind the vanishing jury trial.

For many schools, the price of a hot summer has been bills for mold inspection and remediation. Here are reports on mold and other problems from Lousiana, Michigan, Pennsylvania, Virginia, Hawaii, North Carolina, Illionois, South Carolina, California, Washington and Florida.

There are useful links to material on retrieving and using archived information from companies' web sites as evidence over at Be Specific.

Relying on federal precedent, a Florida appellate court held last month home office overhead calculated using the Eichleay formula cannot be recovered for a project delay when the contractor did not suspend all or most of its work.

Electronic Discovery and Evidence points out this excellent LA Times article on the battle between computer forensic experts and designers of programs to erase computer data.

The Construction Attorney Blog posts on the copyright suit pending over the similarities in the design an architectural firm submitted for Freedom Tower at the World Trade Center site and a student architectural project.

The American Society of Professional Estimators (ASPE) reports the States of California, New Jersey and New Mexico, the General Services Administration, the U.S. Postal Service, the U.S. Army, U.S. Coast Guard and the U.S. Navy require ASPE certified estimators be involved in preparing, supervising or checking their project construction cost estimates.

Blog 702 points us to Searles v. Fleetwood Homes,Inc., a Maine Supreme Court decision affirming a physician's testimony that mold caused the plaintiffs' respiratory problems. The court also affirmed the trial court's refusal to give the jury a comparative negligence instruction.

Here's an update on mold, sick building and construction defect cases and news from around the country.

"This story is about dirt," said Thomas W. Prewitt, the Dean of the Mississippi construction law bar, "It's a story about dirt wetted by the blood of friendship broken and packed by orders of hurry and get it done and I'll pay you later."

Maybe not says Jeff Boudreaux over at Louisiana Law Blog.

The importance of helping jurors understand the burden of proof is underlined by a recent New York ruling reported by Law.com throwing out a verdict because the jurors consulted a dictionary to try to figure out what the word "preponderance" meant. The trial judge had instructed the jury the plaintiff had to prove her case by a "preponderance of the evidence."

The Tennessee Business Litigation Law blog points to an article by a defense attorney about how the lower courts are applying the Supreme Court's decision in State Farm v. Campbell on the constitutional limits of punitive damages awards.

Construction defect experts' affidavits were held sufficient to create a fact issue over whether construction defects in numerous homes were the result of "willful misconduct" by the contractor by a California Court of Appeals in Acosta v. Glenfed Development Corp.

The federal Second Circuit Court of Appeals recognized preliminary agreements to enter into construction contracts create an enforceable duty to negotiate in good faith last month in Brown v. Cara.

The Contracts Prof Blawg discusses how the Indiana Appeals Court's decision last week in Simon Property Group, L.P. v. Brandt Construction, Inc. illustrates the difference between a contrator's breach of a contract duty to protect property from injury and breach of a promise to indemnify for loss to that property

A Lexis search turned up three opinions directly related to construction law issues and claims authored by President Bush's nominee for the Supreme Court, Judge John Roberts of the D.C. Circuit.

Neither the absence of privity nor the economic loss rule prevents a home owners association from suing the subcontractors responsible for defective construction under a recent Colorado Supreme Court decision discussed at the Colorado Home Owners Association Law Blog.

You cannot hang responsibility for a construction defect on an architect absent evidence the architect 's plans led to the defective construction under a D.C. Circuit decision rendered last week.

The Washington Court of Appeals recently refused to enforce a lien subordination agreement against a contractor and its subcontractors because the subordination agreement said the lender was making a $24 million loan when the loan documents only provided for a $22 million loan.

A Florida appellate court holds a contractor prevailing on its mechanics lien claim against homeowners may recover attorneys fees and prejudgment interest even if the owners prevail against the contractor on their counterclaim for breach of contract.

A subcontractor seeking to establish estoppel or waiver of a contract clause precluding prosecution of a claim unless notice is given within 21 days of the event giving rise to the claim must provide more evidence than an oral expression of concern to defeat a motion for summary judgment, according to a New York Appellate Division brought to my attention by the Contracts Prof Blog.

A New York intermediate appeals court denied a general contractors motion to enforce a pay-when-paid clause because issues of fact existed over whether the general contractor should be estopped from asserting the pay-when-paid provision.

Read this post from the Construction Law Blog briefing the Connecticut Supreme Court's holding in Medvalusa Health Programs, Inc. v. Membership, Inc that neither the due process clause in the 14th Amendment nor state public policy limit the amount an arbitration panel may award in punitive damages.

Contractors asserting claims for loss of productivity and delays often have difficulty proving damage causation. The impact damages sought by the contractor may result from the cumulative effect of multiple events some of which are compensable and some of which are not. Segregating the compensable impacts from the non compensable impacts on the contractor is often difficult to do. This difficulty often hampers the parties ability to negotiate a fair outcome.

A new tool to address this problem--the “weighted factor tool” (WFT)– was presented at the recent Denver leadership conference held by the Construction Owners Association of America(COAA). The creators, Patrick McGeehin of Rubino & McGeehin and Richard Martone of PMA Consultants, L.L.C. are nationally known and have played leading roles in negotiating settlements of contractor impact claims involving the controversial Big Dig project in Boston.