GRAYLING ALASKA CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Construction Litigation Roundup: “Tender Is the Fight”

August 21, 2023 — Daniel Lund III - Lexology
A performance bond surety for a defaulted general contractor principal found itself with a recalcitrant owner which refused to accept the tender of a replacement general contractor to complete a $3,000,000 construction project in Monmouth County, New Jersey. Even before the original GC was off the job, the surety – having been notified of the contractor’s difficulties in performing the work – stepped in promptly, providing assistance in the form of an additional contractor. At the surety’s behest, that additional contractor remained on the project (focused principally at the time on roof repairs) after the initial GC was placed in default and terminated. Eventually, the surety, by draft tender agreement issued to the owner, offered that the additional contractor serve as the completion contractor for the entire project (not simply the roof repairs), a proposal rejected by the owner – which had never cared for the additional contractor. Instead, the owner proposed its own completion contractor and, in connection with that offer, demanded a sum of money ($1.6 million) from the surety – a proposal the surety rejected: “[Owner] cannot choose whatever contractor it wants to complete the work and then charge the costs to [the surety]." Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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Construction Termination Issues Part 4: What to Do When They Want to Fire You, the Architect or Engineer

August 14, 2023 — Melissa Dewey Brumback - Construction Law in North Carolina
What if you are told that your own design services are no longer needed or welcome on a project? Can they do that? What happens then? How do you protect yourself. As you probably realize, while rare, the Owner does have the legal right to fire you “for cause”. See B101 §9.4, as long as the Owner gives you 7 days written notice. In fact, the Owner can terminate your contract for any reason at all (maybe you root for the wrong basketball team?) by terminating you for convenience (i.e., for any reason whatsoever) under B101 §9.5, again with 7 days written notice. As with Contractor terminations, the money you get when fired for convenience is much greater than when you are terminated for cause. If you are fired “for convenience”, you get paid for all services previously rendered as well as termination expenses, including anticipated profit on the value of services not performed. See B101 §9.7. Read the full story...
Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

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US Moves to Come Clean on PFAS in Drinking Water

September 18, 2023 — Pam McFarland, Debra K. Rubin & Mary B. Powers - Engineering News-Record
Congress has allocated billions of dollars to address contamination caused by the ubiquitous class of “forever” chemicals known as PFAS—with billions more also earmarked in recent legal settlements with manufacturers—but drinking water managers, construction sector experts and other stakeholders say the true cost of cleanup could be much higher. Reprinted courtesy of Pam McFarland, Engineering News-Record, Debra K. Rubin, Engineering News-Record and Mary B. Powers, Engineering News-Record Ms. McFarland may be contacted at mcfarlandp@enr.com Ms. Rubin may be contacted at rubind@enr.com Read the full story...

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Claim Preclusion: The Doctrine Everyone Thinks They Know But No One Really Knows What it Means in Practice

April 25, 2023 — Garret Murai - California Construction Law Blog
Generally, I think restraint in litigation is a good thing. Don’t go crazy on your claims, don’t go nut-so in your discovery, and don’t present your case at trial in a way that causes the judge and/or jury to raise their eyebrows or shake their heads in disbelief. But, as with nearly everything, there’s always an exception. One of which is: don’t hold back on a claim because you “think” you might be able to bring it later, because you might not be able to as the next case, 5th and LA v. Western Waterproofing Company, Inc., 87 Cal.App.5th 781 (2023), demonstrates. The 5th and LA Case At the outset, let me first say how much I enjoyed reading this case based on the writing alone. The case, as the 2nd District Court of Appeals states, involves “a second lawsuit about an increasingly leaky roof.” In 2012, property owner 5th and LA hired roofing contractor Western Waterproofing Company, Inc. to remove and recoat a parking lot that served also served as the roof over retail and office space below. Western completed its work in July 2012 and almost immediately 5th and LA noticed water that the coating was failing causing water leaks to the interior of the building. Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Wildfire Smoke Threatens to Wipe Out Decades of Air Pollution Progress

August 28, 2023 — Linda Poon & Immanual John Milton - Bloomberg
The US is on track to experience its worst year for smoke exposure in decades, after wildfires in Canada sent toxic plumes drifting across the border to the Midwest and the East Coast earlier this summer. In June and July, New York and Chicago saw more “very unhealthy” and “hazardous” air quality days for fine particle pollution (PM2.5) than in the same months every year since the Environmental Protection Agency began tracking PM2.5 nationally in 2000, a Bloomberg CityLab analysis of federal data found. In Washington, DC, the number of “very unhealthy” days reached the highest in over a decade. On the EPA’s air quality index scale, these days correspond with the highest levels of public health concern. Extensive exposure to PM2.5 particles, the main pollutant found in smoke, can increase the risk of a variety of problems, including heart and respiratory disease, as well as premature death. Reprinted courtesy of Linda Poon, Bloomberg and Immanual John Milton, Bloomberg Read the full story...

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4 Steps to Take When a Worker Is Injured on Your Construction Site

March 27, 2023 — Zachary Perecman - Construction Executive
The construction industry continues to be one of the fastest-growing labor trades. According to the Center for Construction Research and Training, since 2019, 11.4 million U.S. workers have been employed in construction, a 25% increase from 2011. Amid this growth, the industry has remained one of the most dangerous, and workers are often at higher risk of injuries and deaths due to occupational incidents. According to the U.S. Bureau of Labor Statistics, there are 150,000 injuries on construction work sites annually. Under Occupational Health and Safety Administration (OSHA) law, employers have a responsibility to provide a safe work environment. That includes providing a workplace that is free of serious recognized hazards. Despite best efforts in implementing risk-mitigation and safety protocols, employers must be prepared with an incident procedure should an incident occur on a jobsite. Taking immediate, clear actions can impact the severity and outcome of injuries from a workplace incident. With this in mind, employers should take the lead in implementing safety procedures for injuries on construction sites and should inform all safety site managers and workers of the steps that should be taken. Reprinted courtesy of Zachary Perecman, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...

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Agree First or it May Cost You Later

May 08, 2023 — Bill Wilson - Construction Law Zone
Business relationships often begin before parties execute a written agreement containing the terms and conditions by which the relationship will be governed. With little more than a Letter of Intent (“LOI”) or Letter of Award (“LOA”) one party is typically pressured to begin investing time and money to start preliminary work on a project. If such LOI or LOA contains nothing more than an agreement to agree later, the performing party should minimize its investment until the later agreement is executed. A recent court decision in New York confirmed the danger to the performing party under “agreement to agree” provisions. In Permasteelia North America Corp. v. JDS Const. Group, LLC, 2022 WL 2954131 (N.Y. Sup. CT. 7/22/22), the plaintiff subcontractor allegedly performed $1.9 million worth of preliminary work under nothing more than a LOA with an agreement to agree provision. Issues arose, and the parties never entered any later written agreement. The general contractor refused to pay the plaintiff anything for its preliminary work. In response, the plaintiff filed suit against the general contractor asserting four counts: foreclosure of its lien, breach of contract, unjust enrichment, and account stated. All four counts were based on an alleged oral “handshake deal” for subcontract work for the project. The general contractor’s LOA stated that neither party would be bound “unless and until the parties actually execute a subcontract.” During discovery, the plaintiff admitted that neither party intended to enter into any contract until its potential terms were negotiated, reduced to writing, and signed. Moreover, the plaintiff only offered one set of meeting minutes and a few project agendas to support its alleged “handshake deal.” Once these necessary undisputed facts were confirmed, the defendant moved for summary judgment on all four counts. Read the full story...
Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

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ASCE Statement on Congress Passage of National Debt Limit Suspension

June 12, 2023 — The American Society of Civil Engineers
The following is a statement by Tom Smith, Executive Director, American Society of Civil Engineers (ASCE): WASHINGTON, D.C. – The American Society of Civil Engineers (ASCE) applauds Congress for passing a measure to avoid a U.S. debt default while safeguarding the critical funding allotments for our nation's infrastructure from the Infrastructure Investment and Jobs Act (IIJA). The bipartisan Fiscal Responsibility Act of 2023 (H.R. 3746) will not only protect funding from the IIJA, but it also takes steps to advance permitting reform, a major priority for ASCE and the civil engineering community. Streamlining permitting is crucial to ensuring we make the most of available funding mechanisms. ASCE is pleased to see that many elements of the BUILDER Act made it into the debt ceiling suspension, including setting deadlines for environmental reviews and providing clarity around permitting requirements. Although further actions are needed to streamline these processes, the Fiscal Responsibility Act is a crucial first step towards implementing much-needed permitting reform to keep valuable projects moving and bring benefits to communities across the country. ASCE once again applauds Congress and the Administration for taking these necessary steps to protect the U.S. economy and infrastructure systems. ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.

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