The Importance of the Recent Amendment to Rule 702 of the Federal Rules of Evidence
January 22, 2024 —
Andrew G. Vicknair - The Dispute ResolverEvery litigator understands that expert witnesses play a key role in litigation, especially when dealing with construction issues. Expert testimony at trial can be a deciding factor in persuading a judge or jury in your client’s favor. It is so important that, as parties get closer to trial, litigators often spend considerable time filing motions to limit or disqualify certain aspects of expert testimony in an effort to gain an advantage at trial. Because experts are a key aspect of the trial process, it is important to understand the various rules governing use of expert testimony, primarily Rule 702 of the Federal Rules of Evidence.
On December 1, 2023, amendments to Rule 702 of the Federal Rules of Evidence went into effect which added the language in underline below and removed the language which is crossed out:
Rule 702. Testimony by Expert Witness
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
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Andrew G. Vicknair, D'Arcy Vicknair, LLCMr. Vicknair may be contacted at
agv@darcyvicknair.com
Recent Florida Legislative Changes Shorten Both Statute of Limitation ("SOL") and Statute of Repose ("SOR") for Construction Defect Claims
March 19, 2024 —
Holly A. Rice - Saxe Doernberger & Vita, P.C.The Florida Legislature and Governor DeSantis passed Senate Bill 360, effective April 13, 2023, which imposes significant changes to Florida’s statute of limitation (“SOL”) and statute of repose (“SOR”) periods prescribed in Florida Statute § 95.11. In short, the SOL and SOR periods will commence earlier and run earlier, which in effect shortens the time to bring a construction defect claim on both ends of the timeline.1
These changes will have positive impacts for general contractors who may save on insurance premiums with shorter completed operations tails. In other words, the timeframe within which contractors are at risk of being sued for construction-related errors is significantly reduced under the new version of the statute. Owners and developers, on the other hand, may feel that the increased pressure of uncovered construction defects necessitates the filing of lawsuits sooner than they might have otherwise filed. Collectively, all parties involved will certainly have to consider when and how to place their carriers on notice of claims or potential claims and, coupled with Florida’s sweeping changes to fee shifting statutes, insured parties may see more coverage denials which, in turn, could lead to more coverage actions.2
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Holly A. Rice, Saxe Doernberger & Vita, P.C.Ms. Rice may be contacted at
HRice@sdvlaw.com
The Contractor’s Contingency: What Contractors and Construction Managers Need to Know and Be Wary Of
December 04, 2023 —
Skyler L. Santomartino - Peckar & Abramson, P.C.Contractors and construction managers who enter into cost reimbursable contracts subject to a guaranteed maximum price (GMP) are responsible for all project costs exceeding the GMP. For this reason, it is imperative that contractors negotiate and incorporate into the GMP a financial buffer that accounts for the unanticipated project costs that are not reimbursable as change orders or costs of the work. This is where the contractor’s contingency comes into play.[
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The contractor’s contingency is a vehicle that allows contractors to mitigate some of the risks inherent in GMP contracts. When drafted properly, a contingency clause allows the contractor and only the contractor to access funds set aside by the owner to address unpredictable or unknown project costs.
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Skyler L. Santomartino, Peckar & Abramson, P.C.Mr. Santomartino may be contacted at
ssantomartino@pecklaw.com
2024 Construction Law Update
December 23, 2023 —
Garret Murai - California Construction Law BlogWe would like to wish you and yours a happy holiday season as we approach 2024.
The first half of the 2023-2024 legislative session saw the introduction of 3,028 bills, which, according to legislative observers, are the most bills introduced in a session in more than a decade, perhaps reflecting the fact that California has a record number of new legislators with over a quarter taking the oath of office for the first time. Of these bills, Governor Newsom signed nearly 400 into law including several impacting the construction industry related to climate change and housing affordability.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Round and Round: Inside the Las Vegas Sphere
December 16, 2023 —
Grace Calengor - Construction ExecutiveHow does the typical contractor approach building something taller than the Statue of Liberty, wider than a football field and with the most square footage of LED lighting in the world? Perhaps it’s enough to say that Sphere Entertainment Company is not your average contractor—and Sphere in Las Vegas is not your average construction project.
With a budget of approximately $2.3 billion, Sphere is a massive entertainment venue constructed mainly of steel and concrete. How different is that from the typical Vegas high-rise, casino or hotel? When you account for the structure’s sheer size, uncommon shape and intertwining technologies—very.
Reprinted courtesy of
Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Super Lawyers Selects Haight Lawyers for Its 2024 Southern California Rising Stars List
February 05, 2024 —
Haight Brown & Bonesteel LLPCongratulations to the following Haight attorneys who were selected to the 2024 Southern California Rising Stars list:
- Kyle DiNicola
- Patrick McIntyre
- Kathleen Moriarty
- Kristian Moriarty
- Austin Smith
Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law.
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Haight Brown & Bonesteel LLP
Appraisal Goes Forward Even Though Insurer Has Yet to Determine Coverage on Additional Claims
December 11, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe trial court's order granting the insured's motion to stay litigation and compel an appraisal was affirmed even though the insurer had not determined coverage on the insured's additional claims.Heritage Prop. & Cas. Ins. Co. v. Wellington Place HOA, 2023 Fla. App. LEXIS 6405 (Fla. Ct. App. Sept. 13, 2023).
The insured homeowner's association reported roof damage to its insurer, Heritage, after Hurrican Irma struck. Heritage agreed the damage was covered, but issued no payment because the amount of loss was less than the deductible.
The insured hired its own adjuster. The insured requested an extension of the policy's two year time limit to complete repairs because the claim was still in dispute and the insurer had not yet paid sufficient funds to allow necessary repairs. Heritage sent a revised estimate and asked the insured to send its adjuster's estimate in order to address any disputes. The insured submitted its adjuster's estimate of more than $6 million, including, for the first time, the cost to replace all the windows and sliding glass doors.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Balancing Risk and Reward: The Complexities of Stadium Construction Projects
April 15, 2024 —
Gregory A. Eichorn - Peckar & Abramson, P.C.From grand designs to opening day, stadium construction projects present a captivating blend of high-profile opportunities and significant challenges and risks. Navigating this complex landscape is not easy, but when managed properly, the potential rewards, both in terms of reputation and finances, can make it a gamble worth taking. While each stadium project is different, some of the more common risks include:
- Securing adequate labor, materials and equipment based on the size of the project;
- Logistical concerns regarding the concurrent performance of multiple trade scopes on a single site;
- Protection of work in place from weather due to the large footprint of the stadium project;
- Cash flow issues caused by protracted change order processing, conflicting and/or onerous payment requirements from project financing entities, and reimbursement of considerable monthly general condition costs; and
- Meeting the schedule requirements for the project.
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Gregory A. Eichorn, Peckar & Abramson, P.C.Mr. Eichorn may be contacted at
geichorn@pecklaw.com