Construction Owners & Builders Law Blog

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.

Professor Herbert Kritzer's article on "The Commodification of Insurance Defense Practice" in construction defect and other cases is a must read for attorneys representing both claimants and insured.

For lawyers, maybe so, says Professor Peter Henning in an article for the Notre Dame Journal of Law and Ethics.

A California appellate court decision banning "binding mediation" is discussed over at May It Please the Court.

Updated: A Mississippi federal district court has held State Farm's insurance policy form ambiguous and that State Farm must pay for wind and water damage even if tidal surge caused later caused further destruction, reports the SunHerald.

The Court will decide whether its earlier decision in State Farm v Campbell (i) mandates a reasonable ratio between compensatory and punitive damages when the defendants conduct was outrageous and (ii) prohibits the jury from considering the harm done to persons other than the plaintiff in making its award.

"We shook hands on it" connotes to folks in the construction business a legally binding deals been made. Would writing the contract with one's own blood connote more?

Make the arbitration clause one-sided and give yourself, but not the other party, a way to opt out and the clause is unenforceable according to a recent ruling by the Wisconsin Supreme Court.

The provisions of the Act are summarized and linked to over at Construction Lawyer-Utah.

Marc Mayerson over at the Insurance Scrawl does his usual masterful job discussing recent case law on when late notice results in forfeiture of insurance coverage.

What expert witness testimony is required to recover lost profits in construction litigation under the Daubert standard?

An Engineering, Procurement and Construction contract (EPC) requires the contractor to bear the construction risks and to deliver a "turn-key" project.

A material breach by the owner ordinarily relieves the contractor of his duty to perform. Non-payment by the government as a material breach of contract is the subject of a Government Contracts Litigation post.

The National Home Builders Association believes a recent decision by the Supreme Court confirms the E.P.A. is exceeding its authority in requiring builders to secure water discharge permits

The breaches in the New Orleans levees during Katrina were caused by negligent design, construction and maintenance and parts of the system will still be flawed after current repairs are completed according to a just completed study reports the New York Times.

How FEMA's new elevation requirements and Biloxi's politicians ran the New Urban architects hired to plan the City's re-construction out of town is described in the New York Times Magazine (free subscription rerquired).

Dan Hawbacker over at the Construction Law Blog points to a number of reports dealing with the collapse of the levees and other Katrina related construction defects and failures.

Under the federal Contract Disputes Act, a construction contractor seeking to overturn a contracting officer's final decision must either file a notice of appeal to a board of contract appeals within 90 days of the decision or file a complaint in the U.S. Court of Federal Claims within a year after the decision.

Punitive damages sometimes are awarded in construction claim cases and often awarded in insurance bad faith cases so I note with interest that yesterday the Oregon Court of Appeals overturned a $100 million punitive damages award in a tobacco case.

Point of Law Forum points to an article indicating other states are unlikely to follow Rhode Island's lead.

The ContractsProf Blog summarizes an appellate decision holding the trial court erred in allowing the jury to decide the intent of an unambiguous one year warranty of materials and workmanship.

Next time a client complains about a construction expert's fees and expenses, I'm going to send him or her a copy of "Expert Witness Industry Booming" from the Star-Telegram.

The presentation of construction claims sometimes suffers because not enough attention is given to whether the claim holds together logically.

Here's the link to Andrew Cohen's Bench Conference

That's what the Chair of the Ad Hoc Committee on Terrorism-Resistant Buildings (TRB) of the International Code Council suggested at a recent Washington meeting reports ENR.com

The Washington Court of Appeals said "no" a decision that create considerable angst among surey defense lawyers and their clients.

Mike Wallace's unqualified rating took me by surprise. He is a fine man and an outstanding lawyer, and I say that though politically we come from different places.

Mississippi Gulf Coast homeowners have accused State Farm Insurance in a new lawsuit of pressuring adjusters and engineers to rely on an engineering report alleging Katrina's storm surge arrived before its windd did any damage reports MSNBC.

is up over at Point of Law and features, "sex, weddings, and baseball."

The trial judge in the Rhode Island lead paint case cited the Rhode Island Attorney General for civil contempt and ordered him to pay a $5,000 fine reports the WSJ.com's Law Blog.

I am presently prosecuting a civil RICO/ business tort case in which one of the key issues was the contents of the defendant's web site in 2004.

The SunHerald, which recently won the Pulitzer Prize for its hurricane reporting, observes that the proposed new elevations are "one of the harshest realities of our recovery from Katrina."

Professor David Bernstien claims in a Point of Law Forum Post the federal rule governing expert evidence is stricter than Daubert and its progeny are; Blog 702 says Bernstein doesn't get it.

Hourly billing is not in most client's best interest. For that reason, I routinely offer owners and contractors alternative fee arrangements that take into account their needs as well as my own.

Ben Cowgill on Legal Ethics does a great job assembling examples of how law-related web logs or blawgs are influencing legal scolarship and court decisions.

A Supervisor in Katrina devastated Hancock County has proposed a tax on dirt excavated for use in re-building Louisiana levees reports the SunHerald.

The ContractsProf Blog points to a contract damages flowchart prepared by Profesor Tom Bell for his law students.

Today Mexican-American construction workers, many of whom are helping re-build the Mississippi Gulf Coast and New Orleans, celebrate the Mexican army's victory over french invaders at the Battle of Puebla in 1862.

McGraw-Hill Construction provides an answer in its Ask the Experts feature.

That's the practical effect of a California appellate decision upholding a zoning ordinance barring "big box " retail stores. Read the summary over at the Real Estate and Construction Law Blog.

A panel of engineers has concluded "[t]he corps did not follow its own procedures in monitoring the rate of subsiding and rising of water levels around the city...and based the design of the levee system on outdated information...." reports the New York Times(free subscription).

Not in Delaware!

The limits of peer review of articles and research relied upon by experts is discussed in today's New York Times (free subscription required).

On the eve of hurricane season home insurers are cancelling policies or refusing to write new ones in many coastal communities reports the Clarion Ledger.

Today's New York Times (free subscription required)profiles Henry Petroski, a Duke Professor whose research focuses on the lessons to be learned from design and construction failures.

Is up over at SoloBlawg.com

McGraw Hill Construction reports on the Katrina levee failure analysis and rebuilding effort being led by the Corps of Engineers.

Whatever the trial court decides about your expert "in the exercise of its sound discretion" is likley to stand up on appeal at least in federal court.

Check it out over at bk!.

Sarah Spear's written an outline on the importance of chossing the right business vehicle for a family owned or closely held business.

The theme is "Tax Day" over at Mauled Again.

leads to?

The New York Times reports prosecutor Sean Berkowitz made a nationally known trial consultant's woodshedding skills an issue in his cross examination of Jeffrey Skilling.

Blog 702 reports on a recent federal appellate case affirming exclusion of a physician's opinion that toxic mold caused plaintiifs' respiratory illness.

The Washington Supreme Court joins the Mississippi Supreme Court in holding that damages for the diminished value of property as well as cost of repair damages may be recovered for construction defects.

Professor Suja Thomas argues it is in a provocative article scheduled for publication in the Virgina Law Review. Link

The Clements "knew something was wrong the November day in 2003 they moved into the Airmont home, which they first saw in August and purchased for $430,000. The windows in the front of the house were so fogged up the Clements couldn't see out of them..."

Marc Mayerson at the Insurance Scrawl discusses the "renewal rule."

It includes some fabulous ancient visual art over at Declarations and Exclusions.

Dan Hawbacker compiles the stories at the Construction Law Blog. Link. Link. Link.

The public, lawyers and jurors see jurors as passive vessels for each sides stories and evidence. The recent jury verdict against lead paint manufacturers explodes that myth.

Here's the story from the Wisconsin State Journal.

The ContractsProf Blog discusses whether potential business insolvency constitutes grounds for an injunction in a breach of contracts case.

Peter Nordberg over at Blog 702 posts on whether the Daubert standards for scientific expert testimony should be applied to engineering testimony on defective product design.

"In case you haven't been inspired today" see the short video clip linked to over at Ben Cowgill on Legal Ethics.

"The official White House view has been that the federal government knows better than the states," reports the New York Times(free subscription required).

A uniform building code requiring structures be built to withstand Category 3 storms would save thousands of buildings and billions of dollars in economic losses, cutting total damage by 68 percent the next time such a hit the Mississippi coast, according to a LSU Hurricane Center study.

Read all about it in USA Today.

Read all about it at Concurring Opinions.

Its up over at Adam Smith, Esq.

An insurer refuses to defend or otherwise denies coverage to a defendant. The defendant believes it has no liability, but the plaintiff seeks bet-the-house or bet-the-company damages. If the insured settles may the defendant or its assignees recover indemnity from the insurer even though it denied liability?

The Real Estate and Construction Law Blog summarizes two notable court decisions upholding permits for wetlands construction issued by the U.S. Corp of Engineers.

The U.S. Court of Appeals for the Fifth Circuit held last month that the existence of a written agreement to arbitrate may be proven by testimony if the agreement itself cannot be found. Link

Marc Mayerson does an excellent job covering the issues and recent court decisions governing defense costs under excess insurance policy forms over at the Insurance Scrawl .

We are "in the middle of the biggest hospital-construction boom in a half-century, a development expected to increase the use of high-tech medicine and add fuel to rising health care costs" reports USA Today.

An informative list over at Evan Schaeffer's Legal Underground.

Abbott Laboratories removed 122 acre feet of groundwater rather than the 2.07 acre feet authorized by its de-watering permit during construction of a plant basement. The de-watering lowered the groundwater-table and killed the Bray family's pecan tree orchards next door. A clear case of negligence or nuisance?