Storm Debby Is Deadly — Because It’s Slow

Anemometer

Two weather systems have been blocking Debby’s way, allowing it to unleash heavy rain for longer.

September 16, 2024
Brian K Sullivan - Bloomberg

Tropical Storm Debby has killed at least five people as it churns across the US East, where it’s expected to inflict $1 billion or more in damage and losses.

One reason for the storm’s destructive power: It’s moving very slowly.

Although Debby came ashore with hurricane-strength winds, its rainfall — forecast to exceed two feet in some areas — is even more dangerous.

The St. Marys River in northern Florida rose more than 10 feet in one day, while New York will likely see downpours from Debby later in the week. Homes, businesses and farms may be deluged, putting crops and infrastructure at risk.


Forum Selection Provisions Are Not to Be Overlooked…Even On Federal Projects

Businessman meeting signing a contract

Treat forum selection provisions seriously. They are NOT to be overlooked. Ever.

September 16, 2024
David Adelstein - Florida Construction Legal Updates

Forum selection provisions are NOT to be overlooked. Ever. Treat them seriously. Even on federal projects where there is a Miller Act payment bond. Consider forum selection provisions on the front end when negotiating your contract.

In a recent opinion, U.S. f/u/b/o Timberline Construction Group, LLC vs. Aptim Federal Services, LLC, 2024 WL 3597164 (M.D.Fla. 2024), a joint venture prime contractor was hired by the federal government to build a temporary housing site. The joint venture prime contractor obtained a Miller Act payment bond. The joint venture then entered into a subcontract with one of its joint venture members and the member-subcontractor then engaged a sub-subcontractor. The sub-subcontractor claimed it was owed $3.5 Million and sued the member-subcontractor, as well as the prime contractor’s Miller Act payment bond, in the Middle District of Florida. The member-subcontractor and the Miller Act payment bond sureties moved to transfer venue to the Middle District of Louisiana pursuant to a forum selection clause in the contract between the sub-subcontractor and the member-subcontractor. The contract provided that the exclusive venue would be a United States District Court located in Louisiana.

Forum selection provisions are analyzed in federal court under 28 U.S.C. 1404(a): “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” U.S. f/u/b/o Timberline, supra at *2. A forum selection provision is presumptively valid and given controlling weight. Id. (quotations and citations omitted).

Mr. Adelstein may be contacted at dma@kirwinnorris.com


Celebrating Dave McLain’s Recognition in the Best Lawyers in America® 2025

Business partners clinking champagne glasses

David M. McLain has been recognized in the prestigious publication, The Best Lawyers in America® 2025.

September 16, 2024
Higgins, Hopkins, McLain & Roswell, LLC

We are thrilled to announce that David M. McLain, a founding partner of Higgins, Hopkins, McLain & Roswell, LLC, has been recognized in the prestigious publication, The Best Lawyers in America® 2025. David has earned this honor for his outstanding work in Construction Law and Litigation – Construction.

For over two decades, David has been a leading figure in the field of construction law. His dedication to providing exceptional legal services to developers, general contractors, and other construction professionals has set him apart as a trusted advisor and advocate in the Colorado construction industry. His inclusion in The Best Lawyers in America® 2025 is a testament to his hard work, legal acumen, and the respect he has garnered from his peers.

About The Best Lawyers in America®
The Best Lawyers in America® is one of the oldest and most esteemed peer-review publications in the legal profession. Each year, lawyers are nominated and evaluated by their peers based on their professional expertise and achievements. Only a select few receive this honor, making it a significant recognition of excellence in the legal field.


Equipment Management: The Right Tool for the Job Might Be a Robot

September 16, 2024
Jeff Yoders & Jeff Rubenstone - Engineering News-Record

Growing labor shortages continue to plague the construction industry, while trade schools and job training programs report their current enrollment won’t make up for a wave of retiring skilled workers. Robotic solutions to repetitive, labor-intensive tasks on construction sites are already available, but a new generation of robots aims to boost workforce efficiency by tackling the tedious and dangerous tasks that plague general and specialty contractors.

Reprinted courtesy of Jeff Yoders, ENR and Jeff Rubenstone, ENR

Mr. Yoders may be contacted at yodersj@enr.com
Mr. Rubenstone may be contacted at rubenstonej@enr.com


Parks and Degradation: The Mess at Yosemite

Mushrooms fallen log

Chemical spills, a ceiling collapse, indoor bears. Employees and park superfans blame the hospitality company Aramark.

September 9, 2024
Laura Bliss - Bloomberg

A couple of miles past the western entrance to Yosemite National Park, visitors pass from California into a postcard. The road opens to a majestic view of Half Dome, El Capitan and Cathedral Rocks—celebrity peaks if ever there were—which form the towering walls of Yosemite Valley. On the pine-scented floor of John Muir’s mountain mansion, the Merced River flows gently by the side of the road as signs point toward trailheads and tourist destinations. Not far from Curry Village, a cluster of tent cabins and eateries at the eastern end of the road, is a section of employee housing known as the Stables. It was there that Erin Rau found herself wrapped in a sleeping bag one broiling afternoon last summer, wondering whether she was about to die.

Rau was a little over a month into a seasonal job selling goods in the village’s general store. Almost as soon as she arrived from Michigan, she recalls, she got the sense this wouldn’t be the carefree, post-college summer gig she’d imagined. In the evenings, she was left alone to manage a bunch of fellow early-twentysomethings making the same sixteenish bucks an hour until the shop closed at 10. At night a family of ringtail possums would crawl down from the rafters to tear into a display of baked goods, a long-standing issue she says her bosses did nothing to resolve, apart from throwing away half-eaten muffins in the morning. Similarly, deer mice kept leaving droppings on the pillows and sheets in the cabin Rau shared with three other women. When one of her roommates complained, she says, management supplied a Ziploc with a couple of mouse traps, a mask, gloves and some hand wipes, leaving the employees to sort out the rest.


2024 DRI Insurance Coverage and Practice Symposium

September 9, 2024
Beverley BevenFlorez – CDJ Staff

Attendees of this three-day seminar will learn “best practices to protect the attorney-client privilege for” their “company’s in-house counsel” as well as “effective strategies to avoid bad faith pitfalls during the appraisal of first-party property claims.” The event will also provide “insights into legislative trends and developments impacting the insurance industry nationwide.” There will also be networking opportunities such as receptions and panel counsel meetings, dine-arounds with fellow professionals, and Insurance Law Committee meetings.

December 4th-6th, 2024
Sheraton New York Times Square
811 7th Avenue, W 53rd St
New York, NY 10019


Professional Services Exclusion Bars Coverage After Carbon Monoxide Leak

Red block amidst white blocks

Carbon monoxide leaked in a building addition to a middle school, prompting 23 lawsuits to be filed against the insured, Allied Design Consultants, Inc.

September 9, 2024
Tred R. Eyerly - Insurance Law Hawaii

The Illinois Appellate Court affirmed the trial court's dismissal of the insured's complaint after damage caused by a leak of carbon monoxide caused bodily injury. Allied Design Consultants, Inc. v. Pekin Ins. Co., et al., 2024 Ill. Ct. App. LEXIS 1433 (June 18, 2024).

Carbon monoxide leaked in a building addition to a middle school, prompting 23 lawsuits to be filed against the insured, Allied Design Consultants, Inc. Allied was retained to perform certain architectural services to the building addition. Pekin Insurance Company had issued a business owners liability policy and a commercial umbrella liability policy to Allied. Pekin denied a defense to Allied based upon the policies' professional services exclusions.

Allied filed suit for declaratory relief against Pekin. Pekin filed a counterclaim, seeking a declaratory judgment that it had no duty to defend. The parties filed cross-motions for summary judgment. The parties agreed the allegations in the personal injury complaint filed by Ferguson were typical and representative of the allegations in the other 22 underlying lawsuits.

Mr. Eyerly may be contacted at te@hawaiilawyer.com


EEOC Focuses on Eliminating Harassment, Recruitment and Hiring Barriers in the Construction Industry

Construction workers holding hardhats no faces

The guidelines are in support of its Strategic Enforcement Plan for the fiscal years 2024-2028 for combatting systemic harassment and eliminating barriers in recruitment and hiring in the construction industry.

September 9, 2024
Aaron C. Schlesinger & Stephen E. Irving - Peckar & Abramson, P.C.

The Equal Employment Opportunity Commission (EEOC), whose mission is to enforce the nation’s anti-discrimination laws, released new guidelines on June 18, 2024, entitled Promising Practices for Preventing Harassment in the Construction Industry. The guidelines are in support of its Strategic Enforcement Plan for the fiscal years 2024-2028 for combatting systemic harassment and eliminating barriers in recruitment and hiring in the construction industry. With these guidelines, the EEOC has identified harassment as an ongoing issue in the construction industry, and that immediate attention and resolution is required.

The EEOC specifically recommends that the following five core principles that it has found effective in preventing and addressing harassment be implemented by construction industry employers:

  1. Committed and engaged leadership;
  2. Consistent and demonstrated accountability;
  3. Strong and comprehensive harassment policies;
  4. Trusted and accessible complaint procedures; and
  5. Regular, interactive training tailored to the audience and the organization.

Reprinted courtesy of Aaron C. Schlesinger, Peckar & Abramson, P.C. and Stephen E. Irving, Peckar & Abramson, P.C.

Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com
Mr. Irving may be contacted at sirving@pecklaw.com


Takeaways From Schedule-Based Dispute Between General Contractor and Subcontractor

Two business people in dispute standing back to back

Attorney David Adelstein provides takeaways relative to any schedule-based dispute between a general contractor and subcontractor.

September 9, 2024
David Adelstein - Florida Construction Legal Updates

A recent opinion out of the Southern District of Florida, Berkley Insurance Co. v. Suffolk Construction Co., Case 1:19-cv-23059-KMW (S.D.Fla. July 22, 2024), provides valuable takeaways on schedule-based disputes between a general contractor and subcontractor on a high-rise project.

In a nutshell, the general contractor’s original project schedule was abandoned due to project delays and the project wasn’t being built by any updated project schedule. The subcontractor claimed the general contractor was mismanaging the schedule putting unreasonable manpower and supervision constraints on it, i.e., it was working inefficiently. A bench trial was conducted and the Court found in favor of the subcontractor’s arguments. The Court found the general contractor had unrelated delays and that work activities were no longer methodical but, simply, piecemeal demands. The Court also rejected any inadequate manpower arguments finding the subcontract did not place any manpower requirements on the subcontractor.

Mr. Adelstein may be contacted at dma@kirwinnorris.com


Traub Lieberman Attorneys Recognized in the 2025 Edition of The Best Lawyers in America®

Best Practice Puzzle Piece

Best Lawyers® lists are compiled based on an exhaustive peer-review evaluation.

September 9, 2024
Traub Lieberman

Traub Lieberman is pleased to announce that five Partners have been selected by their peers for inclusion in the 2025 edition of The Best Lawyers in America®. In addition, seven attorneys have been included in the 2025 Best Lawyers®: Ones to Watch list. These recognitions include attorneys from the firm’s Hawthorne, NY; Chicago, IL; Palm Beach Gardens, FL; and St. Petersburg, FL offices.

2025 Best Lawyers®
Hawthorne, NY

  • Lisa L. Shrewsberry – Commercial Litigation

Chicago, IL

  • Brian C. Bassett – Insurance Law

Palm Beach Gardens, FL

  • Rina Clemens – Personal Injury Litigation – Defendants, Product Liability Litigation – Defendants

St. Petersburg, FL

  • Lauren S. Curtis – Insurance Law
  • Scot E. Samis – Appellate Practice

Attorneys’ Fees and the American Arbitration Association Rule

Pencil resting on fee statement

The AAA Construction Industry Arbitration Rules allow parties another opportunity to put attorney’s fees back on the table when faced with the American Rule.

September 9, 2024
Bill Wilson - Construction Law Zone

A common question from clients, when a dispute arises on a construction project, is whether they can recover their attorney’s fees from the other side if they pursue a case and win. More often than not, such fees are not recoverable. As a general rule (commonly known as the “American Rule”), each party to a dispute must bear their own attorney’s fees unless there is some statutory provision or contractual agreement between the parties allowing otherwise. Since most construction disputes involve claims for breach of contract and/or negligence, no realistic statutory provision often allows for attorney’s fees. Many construction contracts do not typically provide a prevailing party the right to collect attorney’s fees from the other side. However, even if the American Rule applies, there may be another path to recovering attorney’s fees if the parties agree to arbitrate their dispute under the American Arbitration Association (AAA) rules.

Reprinted courtesy of Bill Wilson, Robinson & Cole LLP

Mr. Wilson may be contacted at wwilson@rc.com

Read the full story...


Real Estate & Construction News Roundup (7/31/24) – International Homebuying Shrinks Commercial Real Estate Focus on Sustainability, and U.S. Banks Boost Provisions for Credit Losses

Coffee cup sitting on top of news

Pillsbury's real estate and construction law team discusses recent industry news.

September 9, 2024
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

In our latest roundup, mortgage rates drop to lowest levels since March, hotel construction activity highest since February 2023, Biden administration calls for legislation regarding property owners, and more!

  • International buyers bought 54,300 existing homes from April 2023 to March 2024 – a 36% drop from the year before. (Diana Olick, CNBC)
  • The Biden administration called on Congress to pass legislation penalizing property owners for rent increases above a certain level as part of its plan to lower housing costs through a series of administrative actions. (Mary Salmonsen, Multifamily Dive)
  • U.S. banks have boosted their provisions for credit losses as deteriorating commercial real estate (CRE) loans and high interest rates fuel fears of defaults. (Manya Saini, Niket Nishant and Matt Tracy, Reuters)

For Whom the Equities Toll: Courts Embrace the Equitable Tolling Doctrine to Extend the Deadline to Sue Insurance Carriers for Coverage under their Policies

September 9, 2024
Stephanie A. Giagnorio & Kelly A. Johnson - Saxe Doernberger & Vita, P.C.

Despite best intentions, sometimes policyholders encounter challenges adhering to the applicable statute of limitations or their policy’s limitation of suit deadline. In complex insurance claims, identifying, comprehending, and accurately quantifying significant and long-term losses may take several years. Even when all losses are readily apparent, the insurer may invest months or years in scrutinizing the claim and finalizing the adjustment of losses, requesting policyholders to furnish extensive supplemental information related to their claim and/or sit for interviews or examinations under oath. If the insurer is investing significant time into verifying a loss, the insured may not even realize a lawsuit could be necessary and fail to consider the applicable limitation period is running and could expire prior to a formal decision on coverage from the insurer. In fact, unscrupulous insurers can sometimes use a lengthy claim investigation to their advantage to run out any applicable deadline to file suit and then deny coverage.

Reprinted courtesy of Stephanie A. Giagnorio, Saxe Doernberger & Vita, P.C. and Kelly A. Johnson, Saxe Doernberger & Vita, P.C.

Ms. Giagnorio may be contacted at SGiagnorio@sdvlaw.com
Ms. Johnson may be contacted at KJohnson@sdvlaw.com


Homebuilder Stocks Stage a Wild Rally Amid Fed Cut Hopes

September 9, 2024
Norah Mulinda - Bloomberg

A torrid rally in homebuilder stocks that’s put the group on track for its best month this year shows few signs of stopping.

Shares of homebuilders have jumped 22% in the 10 days through Monday a rate of expansion last seen in May 2020. A softer-than-expected inflation print earlier in July bolstered bets that the central bank will begin easing sooner than expected. And encouraging results from industry bellwether D.R. Horton Inc. last Thursday sparked optimism about growth prospects for the group.

Risk-on sentiment in homebuilders was also aided by a broader rotation away from the perceived safety of technology megacaps and into riskier corners of the market earlier this month.


Definitions Matter in Illinois: Tenant Held Liable Only for Damage to Apartment Unit

Quick search Dictionary

The plaintiff insured the subject apartment building, which incurred damage to several units as result of a fire in the tenant’s unit.

September 9, 2024
Gus Sara - The Subrogation Strategist

In Phila. Indem. Ins. Co. v. Gonzalez, No. 1-23-0833, 2024 Ill. App. Unpub. LEXIS 1372, the Appellate Court of Illinois considered whether the terms of a lease agreement limited a tenant’s liability for fire damages, a fire caused by her negligence, to her apartment unit only. The plaintiff insured the subject apartment building, which incurred damage to several units as result of a fire in the tenant’s unit. The lease defined “Premises” as the specific apartment unit occupied by the tenant and held the tenant responsible for damage caused to the Premises. While the court found that the lease permitted the plaintiff to subrogate against the tenant, it held that the lease terms limited the damages to the tenant’s apartment unit only.

In Gonzalez, the plaintiff’s insured owned a multi-unit apartment building in Chicago. In September 2019, the building owner entered into a lease agreement with the defendant for apartment Unit 601. The lease stated that Unit 601 was the “Leased Address (Premises).” Another provision stated that building owner “hereby leases to Tenant(s) and Tenant(s) hereby leases from Landlord(s) for use as a private dwelling only, the Premises, together with the fixtures and appliances (if any) in the premises…” The lease also stated that “Tenant shall be liable for any damage done to the premises as a result of Tenant’s or Tenant’s invitees, guests or others authorized to reside in the Premises [sic] direct action, negligence, or failure to inform Landlord of repairs necessary to prevent damage to the Premises.”

Mr. Sara may be contacted at sarag@whiteandwilliams.com


Meet BWB&O’s 2025 Best Lawyers in America!

Best Keyboard Key

Attorneys from Bremer Whyte Brown & O'Meara were selected to the The Best Lawyers in America and Best Lawyers: Ones to Watch in America.

September 9, 2024
Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

Bremer Whyte Brown & O’Meara, LLP is proud to announce Partners Nicole Whyte, Keith Bremer, Vik Nagpal, John O’Meara, Sheila Stiles, Patrick Au, and Nicole Schmidt have been selected by their peers for inclusion in the 31st edition of The Best Lawyers in America, and Partner Devin Gifford, and Associates Melissa Youngpeter, Ryan Flanagan, and Alexandria Zeis are included in the fifth edition of Best Lawyers: Ones to Watch in America. Each person is being recognized for their diligent work in the areas of Family Law, Construction, Commercial, Personal Injury, and Real Estate Litigation.

Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Read the full story...


New York's New Gateway: The Overhaul of John F. Kennedy International Airport

Man traveling through airport terminal

The $9.5-billion New Terminal One (NTO)—the largest private-public partnership in the country—reached a milestone this spring with the topping out of the headhouse for the 2.6-million-sq-ft facility.

September 9, 2024
Aileen Cho - Engineering News-Record

On the cusp of the 70th anniversary of the originally named New York Airport’s opening in Queens, N.Y., a blue-ribbon panel in 2017 released a report to the governor of New York: The facility, once popularly known as Idlewild Airport, needed a comprehensive master plan and a total transformation. In the seven years since, builders at John F. Kennedy International Airport have been anything but idle, and the speed at which that $19-billion transformation of the roads and terminals is occurring could be called wild.

Reprinted courtesy of Aileen Cho, Engineering News-Record

Ms. Cho may be contacted at choa@enr.com

Read the full story...


Contractors Struggle to Fill Craft Positions, AGC Survey Finds

September 9, 2024
James Leggate - Engineering News-Record

Filling open jobs continues to be a challenge for many contractors, with 94% of respondents to a recent workforce survey from the Associated General Contractors of America and HR technology company Arcoro reporting that they had openings for craft workers, and 94% of those firms saying openings have been hard to fill. Also, 92% of contractors surveyed said they were having difficulty filling open salaried position as well.

Mr. Leggate may be contacted at leggatej@enr.com


Corrective Action Protest Grounds for GSA Schedule Federal Construction Contractors

Contract between two business people

On May 16, 2024, the U.S. Court of Federal Claims (COFC) reinstated a contract award after determining that a Government Accountability Office (GAO) corrective action recommendation was without a rational basis.

September 9, 2024
Marissa L. Downs - The Dispute Resolver

A contract awarded, protested, terminated, appealed, then reinstated. It’s no secret that federal construction procurements are plagued with uncertainty. From delays, constructive suspensions, compromised supply chains, the litigation-laden critical path method, and the mandate for all construction materials used in federally funded projects for infrastructure to be produced in the United States under the Build America, Buy America Act (BABAA) (to name just a few traditional and emerging favorites), just one of these issues could fill the rest of anyone’s month with substantive research. To add one more, which is entirely unique to bid protests, federal contractors–including construction contractors–listed in a General Service Administration (GSA) Schedule may have new grounds to have a contract award reinstated that was terminated by a federal agency pending a GAO decision.

GAO Protest
An initial GAO protest filed by Deloitte & Touche LLP (Deloitte) argued that the National Geo-Spatial Intelligence Agency (Agency) wrongfully made an award to Kearney & Company, P.C. (Kearney) when the Agency: (1) improperly evaluated quotes; and (2) failed to conduct a proper best-value tradeoff analysis. At issue was a competed task order with Kearney under a GSA FSS multiple-award contract. Before the GAO issued an opinion, however, it held an unrecorded predictive-outcome conference with Deloitte and Kearney where the only mutual consensus was the likely ineligibility of all offerors for the relevant award. The Agency subsequently elected to take corrective action, terminating Kearney’s contract award for convenience, amending the solicitation to avoid issues (including undisputed issues) addressed in the GAO protest. After the Agency adopted their corrective action, the GAO protest was dismissed as academic and moot.

Ms. Downs may be contacted at mdowns@lauriebrennan.com


Behavioral Science Meets Construction: Insights from Whistle Rewards

Scientists and doctors

The platform is designed to enhance employee engagement, safety compliance, performance, and technology adoption in construction companies.

September 9, 2024
Aarni Heiskanen - AEC Business

In this episode of the AEC Business Podcast, Aarni Heiskanen hosts Drew Carter, CEO of Whistle Rewards, and Dr. Laurel Newman, a behavioral scientist, to discuss instant rewards for driving behavioral change in construction. Laurel shares her psychology background and academic career, studying how the environment influences behavior. Drew introduces himself as a data scientist, focusing on predictive modeling. Tune in to learn how they collaborate to create motivating environments in the construction industry.

Whistle Rewards is a platform specializing in rewards, recognition, and incentives in the AEC industry. It is designed to enhance employee engagement, safety compliance, performance, and technology adoption in construction companies.

The Guests
Drew Carter, CEO and Co-Founder at Whistle Systems, Inc.
Drew is improving employee retention using data science and behavioral science.

Mr. Heiskanen may be contacted at aec-business@aepartners.fi


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More Homes on the Palos Verdes Peninsula to Face Utility Shutoffs

Tom Wait reports from the Palos Verdes Peninsula, where more residents are set to be affected by utility shutoffs this week, KCAL News reported.

Firefighters Continue to Battle Southern California Wildfires

The three wildfires that have burned hundreds of thousands of acres this month in Southern California are starting to get under control, but the firefight is far from over, KTLA 5 News reported.

Geologists Say California Is at Risk of Dangerous Land Movement

Scientists studying the earth’s movements say California is especially at risk at significant shifting that could affect coastal communities. Hetty Chang reports for the NBC4 News.

The $14BN Race to Transform LAX for the 2028 Olympics

Los Angeles International Airport (LAX) is undergoing a massive $14 billion transformation ahead of the 2026 World Cup and the 2028 Olympic Games, Megabuilds reports.

Southern California Wildfire Forces Thousands to Evacuate

The line fire also threatens 35,000 homes and buildings. The area is now under a state of emergency, just 60 miles east of Los Angeles. NBC News’ Dana Griffin reports.

Post Fire Burns 130 Acres and Prompts Evacuations in Riverside County

Cal Fire issued evacuation orders for people living near the Post Fire in unincorporated Riverside County, Gio Insignares of KCAL News reports.

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