Construction Owners & Builders Law Blog

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.

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.

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.

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.

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.

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.

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.

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

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.

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?

"Nearly 600 people who died because of Hurricane Katrina might have survived had floodwalls on two New Orleans canals not collapsed, a Knight Ridder analysis of where bodies were found after the storm indicates," reports the Nation.

The ConstructionAttorneyBlog points to a recent Illinois appellate court decision permitting a homeowner to recover $1.2 million for construction defects from the spouse of the corporate-builder's owner. The Homeowner contracted with the corporate-builder not the spouse and the spouse owned no shares in the corporate-builder.

On Christmas day, The Times Picayune in New Orleans reported on lawsuits being filed against the U.S. Army Corps of Engineers and others for damages caused by Hurricane Katrina.

May It Please the Court tells an eye opening story about a case in which "an insurance company issued a policy to a company in India, doing business in India, to cover work done in India for an American company" but "the policy excluded coverage for work done in India."

I initially reported on this scandal here; the Construction Law Blog tells us about recent developments.

Washington Construction law posts a copy of a atste study of the effectiveness of using the General Contractor/Construction Manager (GC/CM) delivery system on state and local projects.

$5 billion in federal relief for Mississippi homeowners who did not purchase flood insurance is on the way if the defense appropriations bill passes Congress, reports MSNBC.com.

living outsode areas designated as high risk for federal flood insurance will receive assistance if

Check out this practical "how to" article in The SunHerald on how to deal with the proposed new FEMA flood zone elevation requirements. The article also discusses the Mississippi Gulf Coast home construction market.

The Construction Law Blog points to an article suggesting the sheet piling for the levees complied with the plans.

The New Jersey Law Blog summarizes a recent decision underlying the importance of documenting extra costs and submitting a request for change order for extra work caused by plan revisions.

The Louisiana Law Blog posts an article from the Toxics Law Reporter on this issue.

Houston based Williams Brothers Construction Company agreed to pay the federal government $3 million to settle False Claims Act and administrative claims for knowingly violating Disadvantaged Business Enterprise contracting requirements on federally funded highway projects.

There is intense resistance on the Mississippi Gulf Coast to voluntarily adoption of FEMA's proposed new flood zones and elevation requirements for houses within the zones, according to the New York Times (free subscription required).

Probono law discusses the enormous legal services crises triggered by landlord eviction notices and foreclosures on the Mississippi Gulf Coast.

The Online Guide to Mediation lists construction law blogs including yours truly.

The Illinois Trial Practice Weblog points to Wickilaw and Wex both of which aim at the whole of the legal universe and to the Katrina focused Lousiana Law blog Ernie the Attorney is promoting.

"Abandon all hope, ye who enter the thirty-fifth Blawg Review!" over at Infamy or Praise.

Washington Construction Law links to the story.

Construction managers are wanted badly by owners and developers in the New York City area, reports today's New York Times (free subscription required). Compensation can top out at $500,000.

InhouseBlog points to a "how to" article that will keep you out of legaL hot water.

Read about this new game over at the Online Guide to Mediation.

The Online Guide to Mediation points to a collection of essays on the law as depicted in Harry Potter's World.

The BusinessPundit and Phosita point to this graphic from Scaryideas.

The stories are compiled over at the Construction Law Blog.

You be the judge of this safe sex advertising gimmick pictured at the Construction Law Blog.

The design of the levees that failed in New Orleans due to Hurricane Katrina flooding "was a disaster waiting to happen" according to a draft report by Team Louisiana reports several prominent news publications. Link Link Link Link
>> Continue Reading Posted In Construction Defects & Defective Construction , Construction Law , Hurricane Katrina
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It's up over at PHOSITA and it's theme is the publisher's inability to come up with a theme--the "non-theme."

SCOTUSblog summarizes the United States Supreme Court's decision yesterday in Lincoln Property v. Roche, a case brought by a couple alleging claims for exposure to toxic mold contamination of their apartment.

"Hurricane Katrina has changed the Coast's economy from a tourism to construction, but the real rebuilding hasn't even begun," reports the Sun Herald

Reassembling houses swept away by Katrina using traditional designs for shotgun and creole houses is promoted in a "Pattern Book for Gulf Coast Neigborhoods" being issued by the Mississippi Commission on Recovery, Rebuilding and Renewal, reports the New York Times (free subscription required).

To boost his commissions a Japanese architect cheated on compliance with earthquake codes reports the New York Times. So far seven hotels have been forced to close.

A daughter-father feud over a wedding gift triggered a lawsuit and enforcement of an oral construction contract in Simons v Jaggers, a recent Mississippi Supreme Court decision.

The InhouseBlog points to Wex--a collaboratively-created, public-access legal dictionary and encyclopedia--sponsored by the Legal Information Institute at CornellLaw School.

Thanks to Tom Peters Weblog for reminding us to "[s]ay a special prayer for all of our young women and young men in harm's way on T'day."

Over at the RiskProf Blog they discuss how builders are selling homes built like fortresses to withstand high winds.

The Construction Law Blog gives us the latest news.

Blawg Review 32 is up over at JAG Central; it's dedicated to those who serve or have served in uniform.

The Inhouse Blog points to a Foley & Ladner LLP article on the new rule.

Florida's Jessica Lunsford Act requires screening of contractor' workers including a full background check and criminal history. Who will pay the cost of compliance, which includes fingerprinting every worker and hours of line waiting by workers is 'wreaking financial havoc for contractors across Florida," reports the Tampa Bay Business Journal.

The review is over at IPTAblog addresses the intersection of law, technology and creativity.

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.

For a cogent explanation of issues related to the potential overlap between fire and building codes, read this post over at the Code Connection.

The Reality TV Edition over at the Mommy Blawg.

Davis Swanner over at South Carolina Trial Law Blog posts on why he picked Lexblog to design and maintain his site.

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.

The Construction Attorney Blog points to an article on how the housing boom is also creating a boom in copyright infringement cases.

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.

Declarations and Exclusions gives a real life example of how lawyers' manufacture of discovery disputes can make discovery needlessly more expensive for their own clients as well as the other parties.

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.

It's up over at Patent Baristas.

May It Please the Court commends a new book on the pitfalls of using boilerplate in contract documents.

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.

Here's a list of dos and do nots from GutterHQ on how to avoid water intrusion and mold in constructing homes and small commercial buildings.

Here's a how to article describing the potential consequences to all parties' of failing to require proof of coverage and waiver of subrogation rights on a construction project.

James River Insurance Company which opened its doors only two years ago received a vote of confidence from Wall Street as its share price climbed 11% on its first day as a public company reports The News & Observer.

...is now posted; "play ball" over at The Common Scold, Monica Bay's place

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

The mandatory arbitration clause in the American Institutes of Architects' General Conditions of the Contract of Construction does not survive termination of the contract, a Florida appellate court recently ruled in Aberdeen Golf & Country Club v. Bliss Construction, Inc.

"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."

The Construction Law Blog reports on the public backlash triggered by the Supreme Court's decision in Kelo v. City of New London on eminent domain.

The Washington Post reports the Environmental Protection Agency (EPA) will begin testing a new less expensive and some say less safe "wet down" method for asbestos removal as a prelude to rewriting federal rules for removing the cancer-causing material.

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.

Cardinal Wolsey: That... thing out there; at least she's fertile.
Sir Thomas More: She's not his wife.
Cardinal Wolsey: No, Catherine's his wife and she's barren as a brick; are you going to pray for a miracle?
Sir Thomas More: There are precedents.

Get the scoop on the poop over at May It Please the Court. Nothing to do with construction law, building defects, toxic mold or winning your case--but it may make you smile.

Design professionals and their errors and omissions insurers will be warned they really will be required to cover the cost of change orders resulting from design omissions if Mississippi's Bureau of Building accepts the recommendations made in a recent report by the Mississippi Legislature's PEER Committee.

A new Blawg review is posted at the Great American Lawyer. Enjoy!

Some call the new Kansas Fairness in Private Construction Contract Act some the most sweeping law of its type in the country.

Our latest alert features reports of general interest and from Colorado, New Jersey, Texas, New York, Virginia, California, Ohio, Nevada and Arizona. I think this alert is the first with no news from Florida--perhaps its just been too darn hot there.

"Home Depot will provide components to the infrastructure around your home. There will be materials provided from Home Depot in the road around your home. The water you drink will be transported through valves and pipes that Home Depot will supply. The hotel room that you stay in will be supported by Home Depot from construction to décor," says its CEO in a USA Today profile.

Cities in 10 counties in the Atlanta area had to spend $2 billion on storm-water facilities to handle runoff caused by the loss of trees reports USA Today in a front page article.

My earlier post on Judge Robert's opinions in construction law related cases overlooked his dissent from the denial of rehearing en banc in the "hapless toad" case, Rancho Viejo, LLC v. Norton.

For a compilation of financial and employment statistics about the construction industry within the United States click here.

Our latest alert features reports of general interest and from New York, Florida, California, Pennsylvania, Washington, Tennessee and Maryland.

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.

To follow developments, reports and commentary on the John Robert's nomination visit regularly The Supreme Court Nomination Blog and ABC News:The Note.

The Ninth Circuit's affirmation of a $78,769,218 antitrust verdict against Weyerhaeuser Company for buying more alder logs than it needed to prevent competitors from obtaining logs at reasonable prices is summarized over at the Antitrust Law Blog.

Denise Howell over at Between Lawyers points to some of the better blogs addressing this question.

The Department of Justice's efforts to crack down on price fixing and bid rigging in construction products is generating indictments and guilty pleas reports the Antitrust Law Blog.

Clay Conrad at Jurygeek posts about how the No Child Left Behind Act may be blunting efforts to promote education about the jury system.

Beware lawyers selling Miami Beach Hotels!

That's what one citizen suggested when told the contractor submitted a $500,000 bill for copying documents for investigators.

Point of Law.com points out limits on punitive damages awards adopted by the current Supreme Court may be undermined if a strict originalist like Justice Scalia or Thomas is appointed to replace moderate Justice O'Conner.

For the contractor looking for a new toy click on this Construction Law Blog post.

The EPA is making enforcement of its storm water permits a top priority reports the National Association of Home Builders's Nations Building News.

The story is over at the Antitrust Law Blog.

Read the story over at Fast Company Magazine.

Yesterday's Supreme Court decision affirming a city's taking of property to clear the way for a new private development triggered a blizzard of blogger commentary.

Over at the Code Connection Journal there's a post on the building code changes being recommended as a result of the World Trade Center collapse by the National Institute of Standards and Technology.

In a decision praised by builders, the Seventh Circuit has rejected an environmental challenge to the EPA's Construction General Permit for storm water discharge.

An American builder has announced plans to construct in Maryland the world's largest building based on the ancient Vedic principles of India reports the Hindustan Times.

"The Symposium will cover the scientific causes of leaky buildings, practical ways of fixing them, legal issues surrounding the situation and converge on the vision of industry leaders in ensuring quality homes," reports the Scoop.

In an earlier post we pointed out the increasing popularity of exchanging construction documents electronically and the new world of electronic discovery issues this created for attorneys handling construction claims. This Atlanta Business Chronicle article profiles a company leading the charge to keep project records on the web rather than in traditional file cabinets.

Colorado's Governor has vetoed a bill that would have prohibited one person from requiring another person or another persons insurer or surety from indemnifying that person from its own negligence for personal injury or property damage.

Mold continues to trigger controversy, lawsuits and headlines--and government action--according to news reports from Florida, Atlanta, Michigan, Pennsylvania and Nevada.

A Philadelphia Bank recently announced plans to build 90 new bank branches with "green building" construction methods and materials, according to this post in the Construction Blawg.

A bankrupt subcontractor has sued the University of North Carolina for deceptive trade practices, fraud and breach of contract, according to this article in the Daily Tar Heel. But the real beef appears to be not getting paid for extra work.

Here are some recent reports from New Orleans, New Jersey, California and Florida on toxic mold and sick buildings and related construction defects:

I recommend to construction news junkies the recent posts to the Construction Law Blog published by Don Hawbacker. Don surveys the popular press for interesting construction news such as these articles on troubled projects, construction fraud, construction and politics, construction accidents and injuries and construction claims. He also regularly posts what "the bizjournals are reporting" on construction and other topics of moment.

Dennis Doran, Senior Consultant at FMI Corporation presented the results of the Fifth Annual FMI/CMAA Survey of Owners at the recent Denver leadership meeting of the Construction Owners Association of America. The response theme of the owners polled was: "ineffective communication and collaboration among stakeholders is a primary reason that projects: run over budget, finish behind schedule and are considered unsuccessful,"according to Doran.

Earlier this month I attended the Construction Owners Association of America (COAA) leadership conference in Denver. The presentations were outstanding, and I am going to share some of the materials with you in coming entries.

Most of COAA's members are involved in "continuous building programs" not one-time projects. Owners and developers involved in continuous building are responsible for constructing most of the major construction projects within the United States.