Anaheim California Construction Expert Witness Directory

Courthouse Reporter Series: Two Recent Cases Address Copyright Protection for Architectural Works

January 16, 2024 — Stu Richeson - The Dispute Resolver
Recent decisions by the Seventh Circuit and the Eight Circuit have addressed the scope of protection afforded to architectural works under copyright law. The Seventh Circuit case of Design Basics, LLC v. Signature Constr., Inc., 994 F.3d 879 (7th Cir. 2021), took a somewhat narrow view of the copyright protection afforded to the design of an “affordable, multipurpose, suburban, single-family home.” In Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 9 F.4th 803 (8th Cir. 2021), cert. denied, 142 S. Ct. 2888, 213 L. Ed. 2d 1103 (2022) the Eight Circuit held that the publication of floor plans of a house in a real estate listing was not protected from claims of copyright infringement. Design Basics, LLC v. Signature Constr., Inc., involved a plaintiff that the court described as holding registered copyrights in thousands of floor plans for suburban, single-family homes that are basic schematic designs, largely conceptual in nature, and depict layouts for one- and two-story single-family homes that include the typical rooms: a kitchen, a dining area, a great room, a few bedrooms, bathrooms, a laundry area, a garage, stairs, assorted closets, etc. The court described the plaintiff as a “copyright troll” and noted that litigation proceeds had become the principal revenue stream for the plaintiff. The plaintiff sued a contractor and related businesses contending hat the defendants had infringed plaintiff’s copyrighted floor plans. Read the full story...
Reprinted courtesy of Stu Richeson, Phelps
Mr. Richeson may be contacted at stuart.richeson@phelps.com

Watchdog Opens Cartel Probe Into Eight British Homebuilders

April 02, 2024 — Damian Shepherd & Katharine Gemmell - Bloomberg
Britain’s top antitrust enforcer has opened an investigation into eight housebuilders to probe potential information sharing, sharpening scrutiny of a sector that’s failing to deliver enough affordable housing to meet demand. The Competition and Markets Authority has opened a cartel investigation into eight developers including Barratt Developments Plc, the Berkeley Group, Persimmon Plc and Vistry Group Plc. The investigation centers on concerns the companies may have exchanged competitively sensitive information, which could be influencing the build-out of sites and the prices of new homes. An initial review will take place until December. CMA Chief Executive Officer Sarah Cardell told Bloomberg Television the watchdog had seen potential evidence of companies exchanging information relating to pricing, sales rates, and incentives offered to new homebuyers. The watchdog has the power to fine firms a maximum penalty of as much as 10% of annual revenue and disqualify directors following cartel investigations. Reprinted courtesy of Damian Shepherd, Bloomberg and Katharine Gemmell, Bloomberg Read the full story...

No Damages for Delay May Not Be Enforceable in Virginia

January 08, 2024 — Christopher G. Hill - Construction Law Musings
Anyone who reads Construction Law Musings with any regularity (thank you by the way) knows that the contract is king in most instances here in Virginia. Any commercial construction subcontractor in Virginia is likely also very familiar with so-called “no damages for delay” clauses in construction contracts. These clauses essentially state that a subcontractor’s only remedy for a delay caused by any factor beyond its control (including the fault of the general contractor), after proper notice to the general contractor, is an extension of time to complete the work. However, in 2015 the Virginia General Assembly passed a change in the law that precluded the diminishment of any right to claims for demonstrated additional costs prior to payment. This left open the question as to which types of “diminishment” would be barred by the statute. The recent case out of the Eastern District of Virginia federal court, Strata Solar LLC v. Fall Line Construction LLC, added a bit of clarity. Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Sarah P. Long Expands Insurance Coverage Team at Payne & Fears

March 19, 2024 — Payne & Fears LLP
Sarah P. Long has joined Payne & Fears LLP as a Partner in the firm’s Insurance Coverage and Litigation Group. Sarah has represented clients in all aspects of insurance coverage and litigation and also focus on construction defect claims and litigation. Before joining Payne & Fears, Sarah was a partner at Koeller, Nebeker, Carlson, Haluck, LLP, where she represented many of the nation’s builders in construction defect actions and bad faith insurance coverage disputes for 17 years. Known for her dependability, efficiency, and creative problem-solving, Sarah always strives to secure the best results for her clients in the most efficient manner. “We are excited to welcome Sarah to P&F as we continue to expand and add depth to our Insurance Litigation Group. I have known Sarah in a professional and personal capacity for more than 16 years. She is well respected by clients and peers in the legal profession. She is a bright, efficient, and innovative attorney and a wonderful person,” said Sarah Odia, the group’s co-chair. Read the full story...
Reprinted courtesy of Payne & Fears LLP

Jersey Shore Town Trying Not to Lose the Man vs. Nature Fight on its Eroded Beaches

February 26, 2024 — Associated Press - Bloomberg
NORTH WILDWOOD, N.J. (AP) — A New Jersey shore town locked in a legal battle with the state over tens of millions of dollars it has spent trying -- mostly in vain -- to hold back the ocean now is more vulnerable than ever. A recent winter storm destroyed part of the sand dunes in North Wildwood, leaving tiny piles about the size of a child’s sand castle to protect a popular resort town with $2.5 billion worth of private property, and at least that much in government buildings and infrastructure. New Jersey has fined the town $12 million for unauthorized beach repairs that it says could worsen erosion, while the city is suing to recoup the $30 million it has spent trucking sand to the site for over a decade. Read the full story...
Reprinted courtesy of Bloomberg

Contractor Prevails in Part Against CalOSHA in Valley Fever Case

February 26, 2024 — Garret Murai - California Construction Law Blog
Fever. Specifically, Valley fever. Caused by the fungus Coccidioides. It lives in the top two to 12 inches of soil, can become airborne when the soil is exposed, and can cause respiratory illness and even death. And apparently, it is present in many parts of California particularly in the Central Valley and along the coast. Who knew? In Granite Construction Company v. Occupational Safety and Health Appeals Board, Case No. C086704 (2023), contractor Granite Construction was cited by CalOSHA for exposing its employees to Coccidioides at a large solar power plant known as California Flats Solar Project in Monterey California. The 3rd District Court of Appeal reversed in part. It should be noted that this case originally unpublished, it was then published, and then later depublished, so it should not be relied on for precedential value. Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

The Word “Estimate” in a Contract Matters as to a Completion Date

February 12, 2024 — David Adelstein - Florida Construction Legal Updates
Language in a contract matters. The word “estimates” or “estimated” matters particularly when it comes to a date certain such as a substantial completion or completion date. Remember this. Here is an example. In Parque Towers Developers, LLC v. Pilac Management, Ltd., 49 Fla.L.Weekly D190a (Fla. 3d DCA 2024), a trial court held that the developer did not complete the construction of five condominium units by the date in the purchase agreements. The developer appealed because “[t]he agreements contain no date certain for the completion of the units, but rather include a clause that ‘Seller estimates it will substantially complete construction of the Unit, in the manner specified in this Agreement, by December 31, 2017, subject to extensions resulting from ‘Force Majeure (the ‘Outside Date’).’” Parque Towers, supra. Another provision in the purchase agreements stated, “[w]henver this Agreement requires Seller to complete or substantially complete any item of construction, that item will be understood to be complete or substantially complete when so completed or substantially completed in Seller’s opinion. Id. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Sweat the Small Stuff – Don’t Overlook These Three (3) Clauses When Negotiating Your Construction Contract

April 08, 2024 — Bill Shaughnessy - ConsensusDocs
Reviewing and understanding the terms of your construction contract before signing on the dotted line (ideally with counsel involved) is an obvious best practice – whether you are owner, general contractor, design-professional or down-tier subcontractor or supplier. Typically, during this review process, parties pay closest attention to terms relating to price, scope, schedule, insurance, indemnification, and damages. And rightfully so, as these are just some of the most fundamental and important clauses of any construction contract. But during this review and understanding process, parties often overlook and fail to fully review and understand several notably important contract provisions (other than the examples above) which can have just as significant an impact on the project and even unintended consequences once construction starts. This article discusses three (3) of these often-overlooked provisions which should also be carefully reviewed to ensure the project runs smoothly and to avoid unintended consequences or even disputes (and litigation) during construction:

Incorporation by reference clause;
Order of precedence or higher standard clause; and
Choice of law clause.

Read the full story...
Reprinted courtesy of Bill Shaughnessy, Jones Walker LLP (ConsensusDocs)
Mr. Shaughnessy may be contacted at bshaughnessy@joneswalker.com

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