Ashburn Virginia Building Consultant Directory

NTSB Issues 'Urgent' Recommendations After Mass. Pipeline Explosions

November 28, 2018 — Tom Ichniowski – Engineering News-Record
The National Transportation Safety Board has issued urgent safety recommendations in the wake of September’s natural-gas explosions and fires in the Merrimack Valley area of Massachusetts that killed one person and resulted in at least 21 others, including two firefighters, going to the hospital. Read the court decision
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Reprinted courtesy of Tom Ichniowski, ENR
Mr. Ichniowski may be contacted at ichniowskit@enr.com

Outcry Over Peru’s Vast Graft Probe Prompts Top Lawyer to Quit

January 15, 2019 — John Quigley - Bloomberg
Peru’s Attorney General Pedro Chavarry quit his post amid allegations he sought to sabotage a plea deal with a major construction company and derail the country’s biggest corruption probe. The board of supreme prosecutors accepted his resignation Tuesday and appointed Zoraida Avalos as his replacement, according to a post on the account of the attorney general’s office. Chavarry will continue to sit on the five-member board. Read the court decision
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Reprinted courtesy of John Quigley, Bloomberg

Differing Site Conditions Produce Differing Challenges

February 18, 2019 — Sarah E. Carson - Smith Currie
The saying “The best laid plans of mice and men often go awry” can too often apply in the construction industry. A contractor may receive a description of site conditions that is ultimately found flawed or misleading. The costs associated with addressing these surprise conditions often fall on the contractor to pay. The following article details proactive steps to avoid costly obstacles that may cause a project’s success to go awry. What are Differing Site Conditions? There are generally two recognized types of differing site conditions. The first, often referred to as a “Type I Changed Condition,” exists when a specification in the conditions indicated in the contract documents varies from what is represented. The second category, generally referred to as a “Type II Changed Condition,” is a variance so unusual in its nature that it materially differs from conditions ordinarily encountered in performing the type of work called for in the geographic area where the project is located. Read the court decision
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Reprinted courtesy of Sarah E. Carson, Smith Currie
Ms. Carson may be contacted at secarson@smithcurrie.com

Note on First-Party and Third-Party Spoliation of Evidence Claims

October 30, 2018 — David Adelstein - Florida Construction Legal Updates
In an earlier posting, I talked about spoliation of evidence. This posting discussed first-party spoliation of evidence which is where a party in a lawsuit has destroyed or lost potentially important documents or evidence. This type of spoliation of evidence does not give rise to an affirmative claim, but could be addressed by the trial court imposing sanctions or giving the devastating adverse inference jury instruction. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Contractual Waiver of Consequential Damages

January 02, 2019 — David Adelstein - Florida Construction Legal Updates
Contractual waivers of consequential damages are important, whether they are mutual or one-sided. I believe in specificity in that the types of consequential damages that are waived should be detailed in the waiver of consequential damages provision. Standard form construction agreements provide a good template of the types of consequential damages that the parties are agreeing to waive. But, what if there is no specificity in the waiver of consequential damages provision? What if the provision just states that the parties mutually agree to waive consequential damages or that one party waives consequential-type damages against the other party? Let me tell you what would happen. The plaintiff will argue that the damages it seeks are general damages and are NOT waived by the waiver of consequential damages provision. The defendant, on the other hand, will argue that the damages are consequential in nature and, therefore, contractually waived. FOR THIS REASON, PARTIES NEED TO APPRECIATE WHAT DAMAGES ARE BEING WAIVED OR LIMITED, AND POTENTIALLY THOSE DAMAGES NOT BEING WAIVED OR LIMITED, WHEN AGREEING TO A WAIVER OF CONSEQUENTIAL DAMAGES PROVISION! Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Going Digital in 2019: The Latest Technology for a Bright Future in Construction

February 18, 2019 — Jim Romeo - Construction Executive
The spectrum of technology available to today’s contractors is wide and deep. This techno-ecosystem will change just about every operational tick and tock needed to build world-class projects—from where and how people work to what equipment they use and how they record payments. “Generally speaking, the use of technology in construction is surging, particularly in the past three to five years,” says Chris Amato, principal and national advisory leader for the Chicago-based management consultancy Grant Thornton. “It’s becoming the cost of doing business; every player, at some point or another, is going to need to embrace it to some degree. The key questions are where to start, where to invest and how to minimize risk.” Reprinted courtesy of Jim Romeo, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Coverage Denied Where Occurrence Takes Place Outside Coverage Territory

December 11, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The court held there was no coverage for construction defect claims that occurred outside the coverage territory. Foremost Signature Ins. Co. v. Silverboys, 2018 U.S. Dist. LEXIS 154524 (S.D. Fla. Sept. 11, 2018). Solo Design, LLC, a Miami-based design company, entered into a contract with Silverboys, LLC (Owner) to provide interior design services in conjunction with the renovation of the Owner's vacation home in the Bahamas. Solo retained Whittingham, a Bahamian architect, as a subcontractor to serve as project manager. Owner sued Solo, Whittingham and others in Florida for breach of contract, fraud, conversion and negligence when the project did not go as planned. The underlying complaint alleged intentional misconduct, lying about qualifications and the progress of the project, submitting false invoices, requesting money for services that were not performed, etc. Owner alleged that the damages included: (a) the cost to repair substandard work; (b) loss of use of the home due to delay; and (c) overcharges for furnishings, contract fees, and expenses. The underlying complaint set forth only a few instances of physical injury to the home, including mold on the ceiling in the master shower, faulty millwork on the children's playroom bookshelf, and a defective front door and resysta facade. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

New York Appellate Court Holds Insurer’s Failure to Defend Does Not Constitute a “Reasonable Excuse” Required to Overturn Judgment

January 21, 2019 — Timothy Carroll & Anthony Miscioscia - White and Williams
A recent opinion by the New York Supreme Court, Appellate Division (Second Department) highlights the potential risks for an insurer leaving an insured unrepresented while the insurer pursues other parties or insurers who may be primarily responsible for defending the insured. In refusing to overturn a default judgment entered against an insured while its insurer knew that a complaint had been filed but refused to defend, the New York court’s decision raises questions about how claims adjusters are to effectively manage new claims to prevent a default judgment being entered against the insured, while at the same time ensuring that the appropriate party or insurance company handles the insured’s defense. In Kaung Hea Lee v. 354 Management Inc., 2018 N.Y. App. Div. LEXIS 7749 (N.Y. App. Div. Nov. 14, 2018) (354 Management) the underlying plaintiffs obtained a default judgment against the defendant insured due to its failure to answer the plaintiffs’ complaint. The plaintiffs then moved to determine the extent of damages to which they were entitled by virtue of the default judgment. The defendant opposed that motion, relying on an affidavit from a senior liability claims adjuster employed by the defendant’s insurer. “In the affidavit, the claim adjuster stated that she did not assign an attorney to answer the complaint because the codefendant . . . was contractually obligated to defend and indemnify the defendant [insured], and she had been attempting to have either [the codefendant] or its insurer provide an attorney” for the defendant. However, it was determined that the claims adjuster knew about the plaintiffs’ complaint two weeks after the plaintiffs served it on the defendant and months before the plaintiffs moved for default judgment. Despite this knowledge, the defendant’s insurer did not provide a defense or, apparently, obtain an extension of time to respond to the complaint, which led to the default judgment. Reprinted courtesy of Timothy Carroll, White and Williams and Anthony Miscioscia, White and Williams Mr. Carroll may be contacted at carrollt@whiteandwilliams.com Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Read the court decision
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ASHBURN VIRGINIA BUILDING CONSULTANT DIRECTORY AND CAPABILITIES