Anaheim California Construction Expert Witness Directory

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

Are Construction Contract Limitation of Liability Clauses on the Way Out in Virginia?

March 11, 2024 — Christopher G. Hill - Construction Law Musings
Remember BAE Systems and Fluor? This post is the third here at Construction Law Musings relating to this case which is a seemingly never-ending source for content. In the prior post discussing this case, the Court found that Va. Code 1-4.1:1 which bars waiver of a right to payment before work is performed did not apply because Fluor had provided work before execution of the contract or any change orders. In the most recent opinion in this long-running litigation, and after a motion to reconsider by Fluor that was granted, the Court re-examined this finding along with the contractual language found in the Limitation of Damages (LOD) clause and came to the opposite conclusion regarding certain change orders that remained unpaid by BAE. The Court first looked to the language of the contract itself and specifically the language in the LOD provision that states “Except as otherwise provided in this Subcontract.” The Court then looked at the change order provision and its typical equitable adjustment language and the mandatory nature of the equitable adjustment language. The Court found that the LOD provisions did not apply to change orders both because price increases due to change orders are not “damages” and because of the exception language in the LOD provision itself. Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Environmental Justice Update: The Justice40 Initiative

April 29, 2024 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog
Soon after taking office, President Biden issued Executive Order 14008, entitled, “Tackling the Climate Crisis at Home and Abroad.” This is an unusually long and complex executive order and includes many provisions relating to environmental justice and the plight of “disadvantaged communities” that are overwhelmed by many environmental threats. Section 223 of the Order describes the President’s “Justice40 Initiative,” which is designed to ensure that 40% of Federal benefits flow to disadvantaged communities through an “all of government approach.” There is a recognition that some disadvantaged communities lack the personnel and resources to take advantage of this Initiative, so technical training funds will be made available. The Order establishes new offices throughout the Federal bureaucracy to handle and expedite environmental justice matters. The Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ) play a large role in implementing the Initiative by issuing appropriate guidance and assisting the Federal agencies to locate, among the thousands of programs they supervise, suitable programs that will assist disadvantaged communities. At last count, 518 Federal programs administered by 19 distinct Federal agencies could be a good source for the resources needed by disadvantaged communities to cope with air and water pollution and solid waste issues. Direct grants will be made in many cases, and other programs require the community to apply for the funds promised by the Executive Order. In addition, the Order requires participating Federal agencies to assess the value and effectiveness of the benefits bestowed. OMB and the CEQ have issued guidance documents and conducted many meetings with key personnel and members of the disadvantaged communities. Read the full story...
Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Spencer Mayer Receives Miami-Dade Bar Association's '40 Under 40' Award

March 04, 2024 — Lewis Brisbois Newsroom
Miami, Fla. (February 23, 2024) – Miami Associate Spencer Mayer received the 2024 Miami-Dade Bar Association Young Lawyers Section’s '40 under 40' Award at the association's annual "Miami Nights" event on February 22. Mr. Mayer serves on the Board of Directors of the Miami Dade Bar Association’s Young Lawyers Section. Lewis Brisbois was a proud sponsor of this event, which raised funds for the organization's community service initiatives and pro bono programming. Mr. Mayer is a member of the General Liability Practice. His practice focuses on all aspects of civil litigation, including complex commercial litigation, products liability, premises liability, wrongful death, catastrophic injury, and insurance coverage. Read the full story...
Reprinted courtesy of Lewis Brisbois

Wyoming Supreme Court Picks a Side After Reviewing the Sutton Rule

January 16, 2024 — Ryan Bennett - The Subrogation Strategist
In a matter of first impression, the Supreme Court of Wyoming (Supreme Court), in West American Insurance Company v. Black Dog Consulting Inc., No. S-23-0052, 2023 WY 109, 2023 Wyo. LEXIS 111, examined whether a landlord’s insurer could pursue a subrogation claim against a tenant who caused a fire loss. The Supreme Court, applying a case-by-case approach, found that the insurer could not subrogate against the tenant. West American Insurance Company (West) insured Profile Properties (Profile), which owned commercial property in Cheyenne, Wyoming. Black Dog Consulting Inc., d/b/a C.H. Yarber (Yarber) leased commercial space from Profile where it operated a metal fabrication business. The lease agreement between Profile and Yarber required Yarber to pay the full expense of Profile’s blanket insurance policy, which included general commercial liability insurance and fire and extended coverage insurance on the building. Read the full story...
Reprinted courtesy of Ryan Bennett, White and Williams LLP
Mr. Bennett may be contacted at bennettr@whiteandwilliams.com

Construction Contract Basics: Venue and Choice of Law

February 19, 2024 — Christopher G. Hill - Construction Law Musings
Previously in this on-again-off-again series of posts on construction contract basics, I discussed attorney fees provisions and indemnification. In this installment, the topic at hand is venue and choice of law. As construction professionals (outside of us construction attorneys), you are likely to be focused on things like the scope of work in a construction contract, the price terms, payment, delays, change orders, and the like. However, the venue (where any lawsuit or arbitration will have to happen) and the choice of law (what state’s law applies) can be equally important. You need to know where you will have to enforce your rights under the contract and also what law will apply. Will you need to go to another state to enforce your rights? Even if not, will your local attorney have to learn the law of another jurisdiction? These are important questions when reading and negotiating your prime contract (if with the owner) or subcontract (if with the general contractor). Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

AMLO Hits Back at Vulcan, Threatens to Use Environmental Decree

December 04, 2023 — Maya Averbuch & Eric Martin - Bloomberg
Mexico’s president threatened to declare a disputed property owned by Vulcan Materials Co. an environmentally protected area, after failing to reach an agreement with the US construction firm. Andres Manuel Lopez Obrador said Vulcan continued work at the site even while in talks with his government over its potential purchase of the property, which was occupied by Mexican marines in March. Accusing the company of “vile trickery,” AMLO — as the president is known — told reporters Friday that he would act by decree if necessary to halt the destruction in “one of the most beautiful areas in the world.” His comments came a day after Bloomberg reported that the Alabama-based firm was seeking the Biden administration’s protection from what it sees as the threat of a hostile takeover of its property. The 2,400 hectare (5,930 acre) plot south of the resort city of Playa del Carmen includes a port and a quarry. Reprinted courtesy of Maya Averbuch, Bloomberg and Eric Martin, Bloomberg Read the full story...

Construction Litigation Roundup: “Ursinus is Cleared!”

March 11, 2024 — Daniel Lund III - Lexology
Ursinus University in Pennsylvania – a “private, nonprofit liberal arts college” – funded a construction project for a new building utilizing monies loaned by the Montgomery County Health and Higher Education Authority, a public economic development authority “formed by the Board of County Commissioners… authorized to issue bonds relative to projects for eligible educational institution such as Ursinus.” Loans up to the amount of $23,000,000 became available to the University, and construction proceeded using the loans as construction funds. At issue: whether a project was to be considered publicly funded project such that prevailing wage rates were required to be paid. IBEW filed a related grievance with the Pennsylvania Department of Labor and Industry’s Bureau of Labor Law Compliance, which was refused by the Bureau, on the basis that because work was “financed completely by loans from the Authority, which Ursinus was required to repay in their entirety, the Project was ultimately funded through private sources and exempt from coverage under the [Pennsylvania Prevailing Wage Act].” A grievance to the Prevailing Wage Appeals Board ensued, and the Board took a different position. Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

ANAHEIM CALIFORNIA CONSTRUCTION EXPERT WITNESS DIRECTORY AND CAPABILITIES