CUSTOM HOME EXPERT WITNESS HOSPITAL EXPERT WITNESS STANDING SEAM ROOF EXPERT WITNESS GRAYLING ALASKA ENGINEERING EXPERT WITNESS SUPPORTING BUILDERS CALIFORNIA ALASKA ALASKA ALASKA CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Singer Akon’s Multibillion-Dollar Futuristic City in Africa Gets Final Notice

September 02, 2024 — Katarina Hoije & Fred Ojambo - Bloomberg
A single arched concrete block juts out of a field in Senegal where R&B singer Akon first laid the foundation stone for his $6 billion metropolis four years ago. The West African nation granted the artist 136 acres of land on its Atlantic Coast in 2020 to build his Akon City — envisioned as a real-life Wakanda, the fictional country from Marvel Studios’ Black Panther films. Complete with condominiums, amusement parks and a seaside resort in gravity-defying skyscrapers rising above the rural landscape, Akon City would run on solar power and his Akoin cryptocurrency, the American-Senegalese singer said during a flashy presentation in Senegal’s capital, Dakar. Today, goats and cows graze the deserted pasture 60 miles south of Dakar, and authorities are growing increasingly impatient. Reprinted courtesy of Katarina Hoije, Bloomberg and Fred Ojambo, Bloomberg Read the full story...

---

California Supreme Court Finds Vertical Exhaustion Applies to First-Level Excess Policies

August 26, 2024 — Tred R. Eyerly - Insurance Law Hawaii
Addressing issues left open in its seminal decision in Montrose, the California Supreme Court found that the language in the first-level excess policies meant that the insured could access the policies upon exhaustion of the directly underlying policies purchased for the same policy period. Truck Ins. Exchange v. Kaiser Cement & Gypsum Corp., 2024 Cal. LEXIS 3271 (Cal. June 17, 2024). From 1944 through the 1970's, Kaiser manufactured asbestos-containing products at numerous different facilities. By 2004, more than 24,000 claimants had filed product liability claims against Kaiser alleging that they had suffered bodily injury as a result of exposure to Kaiser's asbestos products. Kaiser tendered these claims to Truck, one of several primary insurers that had issued CGL policies to Kaiser. In 2001, Truck initiated this coverage action to determine its indemnity and defense obligations to Kaiser. Truck later amended its complaint to add a cause of action for contribution against several of Kaiser's excess insurers. The issue presently before the court was whether Truck was entitled to contribution from various coinsurers that issued first-level excess policies to Kaiser during the period in question. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---

Wave Breaker: How a Living Shoreline Will Protect a Florida Highway and Oyster Bed

December 23, 2024 — Derek Lacey - Engineering News-Record
A living shoreline being constructed in the Florida Panhandle's Apalachicola Bay is protecting a critical local highway, while fostering marsh areas and oyster habitat that’s seen years of decline. Read the full story...
Reprinted courtesy of Derek Lacey, Engineering News-Record
Mr. Lacey may be contacted at laceyd@enr.com

---

Executive Insights 2024: Leaders in Construction Law

August 05, 2024 — Construction Executive
The key risks that should always be taken into account when a contract is signed are risks associated with uncompensated delays and cost increases. Provisions relating to the scope of work deserve significant attention to help minimize these risks. Defining the scope of work is often put on the backburner while parties focus on negotiating the rest of the terms and conditions of the contract. And when these scopes are inserted, they are often not closely reviewed by attorneys who tend to defer to project personnel on scope. These situations can lead to costly disputes. Instead, make sure: (1) the correct plans and specifications have been referenced in the contract; (2) an attorney or his/her business counterpart is familiar with relevant specifications; (3) the exhibit containing the assumptions and clarifications is clearly written, has been coordinated with language in the body of the contract and can be clearly understood by attorneys and business people beyond the preconstruction personnel who drafted them; and (4) the contract addresses the order of precedence in the event of a conflict between or among contract provisions (including exhibits). With regard to specifications referenced above, an attorney review is advised because many specification sections, including submittal sections, change order sections, payment provisions and construction progress documentation sections, regularly vary from the negotiated sections of the actual contract. Contractors also unwittingly accept design risk through performance specifications, and the accompanying obligations and risks are underestimated by those tasked with the initial review of those documents. In sum, a clear scope is as important as clear terms and conditions. Reprinted courtesy of Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...

---

Massachusetts Appellate Court Confirms Construction Defects are Not Covered Under Commercial General Liability Policies

January 21, 2025 — Bill Wilson - Construction Law Zone
In a case of first impression in Massachusetts, Lessard v. R.C. Havens & Sons, Inc., 104 Mass. App. Ct. 572 (2024), the Appellate Court confirmed that construction defects, without more, do not constitute property damage within the meaning of a commercial general liability policy (CGL). In Lessard, the homeowners filed suit against an insured homebuilder for construction defects in their home. After the homeowners won a jury verdict, the homebuilder’s insurer intervened and sought a declaratory judgment that it owed no duty to indemnify the homebuilder under its CGL policy. The superior court entered a declaratory judgment in favor of the insurer, and the homeowners appealed. Read the full story...
Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

---

You Cannot Always Contract Your Way Out of a Problem (The Case for Dispute Resolution in Mega and Large Complex Construction Projects)

September 16, 2024 — Lisa D. Love - The Dispute Resolver
Most experienced commercial transaction and construction attorneys strive to negotiate a concisely written and well-drafted contract that addresses all scenarios and issues that creative and highly contemplative professionals can conjure. Although contracts are extremely important in construction projects, “you can’t generally contract your way out of a problem,” states Michael Loulakis, a founder of Capital Project Strategies, LLC and a nationally recognized expert on project delivery systems in complex public sector design-build projects and public-private partnership programs. Loulakis adds, “the contract certainly matters. But particularly when the losses are big, litigators prosecuting the contractors often find effective ways to argue that facts and circumstances trump the contract.” However, “the difference between the best construction projects and the worst construction projects is not the written words of the contracts but how the parties have committed to engage collaboratively and with trust to complete the project,” notes Robynn Thaxton, an attorney and consultant with Thaxton Parkinson PLLC and Progressive Design-Build Consulting, LLC and one of the leading experts in construction law and alternative procurement on a national basis.[i] In large, complex construction projects, the need for parties to collaboratively resolve disputes is highlighted by the judicial acceptance of the “Doctrine of the Contextual Contract”[ii] to interpret construction contracts. “As construction’s increasing technological and managerial complexity came to be recognized, some common law courts began turning away from strict interpretation of language within the four corners of a contract and moving toward recognizing in the enforcement of contracts the construction industry’s own experience, customs, practices and implied conditions and duties and the factual context underlying the contract. Courts [began the journey] along the road from ‘text’ to ‘context.’”[iii] Thus, the precise wording of the contract has become less important and industry practices and other conditions provide insight for resolving disputes. Consequently, despite the specific language of any construction contract and the clear allocation of responsibilities and risks, early dispute evaluation and resolution are critical to a successful project. Read the full story...
Reprinted courtesy of Lisa D. Love, JAMS

---

Report Highlights Trends in Construction Tech, Digitization, and AI

November 11, 2024 — Aarni Heiskanen - AEC Business
Bluebeam, a top technology provider for AEC professionals, has just released its “Building the Future: Bluebeam AEC Technology Outlook 2025” report. This report highlights key global trends in construction technology, including the role of AI and digital tools. Based on insights from over 400 AEC technology leaders, the report also uncovers challenges that prevent full-scale adoption of these tools. The online research surveyed technology decision-makers (managers or above) within AEC firms in the US, UK, Canada, France, Spain, Germany, Australia, and New Zealand in July 2024. AI’s Growing Role in Construction According to the report, 74% of surveyed AEC professionals are now using AI in one or more phases of building projects. AI is especially popular in the design (48%) and planning (42%) stages. Many AEC firms recognize its value: over half (55%) of companies using AI say it’s crucial, and most now allocate up to 25% of their budgets to AI initiatives. Despite this support, concerns over AI regulation are significant. About 54% of respondents are worried about regulations, and 44% say this impacts their use of AI. Read the full story...
Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

---

Not a Waiver for All: Maryland Declines to Apply Subrogation Waiver to Subcontractors

September 23, 2024 — Gus Sara - The Subrogation Strategist
In Lithko Contr., LLC v. XL Ins. Am. Inc., No. 31, Sept. Term, 2023, 2024 Md. LEXIS 256, the Supreme Court of Maryland considered whether a tenant who contracted for the construction of a large warehouse facility waived its insurer’s rights to subrogation against subcontractors when it agreed to waive subrogation against the general contractor. The court ultimately decided that the unambiguous language of the subrogation waiver in the development agreement between the parties did not extend to subcontractors. The court also held that the tenant’s requirement that subcontracts include a subrogation waiver did not, in this case, impose a project-wide waiver on all parties. The court, however, found that the requirement that the subcontracts include a similar, but not identical, waiver provision rendered the subcontract’s waiver clauses ambiguous and remanded the case to the lower court to determine if the parties to the development agreement – i.e., Duke Baltimore LLC (“Duke”) and Amazon.com.dedc, LLC (“Amazon”) – intended that the waiver clause in the subcontracts covered claims against subcontractors. This case involved roof and structural damage to a warehouse in Baltimore, Maryland that Duke owned. In March 2014, Amazon entered into a development agreement with Duke for the construction of the warehouse. Amazon also agreed to subsequently lease the warehouse from Duke. Although Amazon essentially owned and/or developed the project, the development agreement identified Duke as “Landlord” and Amazon as “Tenant.” Read the full story...
Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

---