When does the six-year statute of repose begin to run for a 28-building condominium project? D’Allesandro v. Lennar Hingham Holdings, LLC. Supreme Judicial Court of Massachusetts (2020).

Summary: The Hewitts Landing Condominium in Hingham, Mass., is comprised of 28 separate buildings containing a total of 150 units, constructed between 2008 and 2015. In 2017 the condominium association filed a lawsuit, based primarily on tort claims, against the developer, the contractor, the construction manager, and others alleging design and construction defects in the […]

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Enforceability of pay-if-paid clauses under Nevada law. APCO Construction, Inc. v. Zitting Brothers Construction, Inc. Supreme Court of Nevada (2020). by Hugh Anderson

APCO Construction was the general contractor on a Las Vegas construction project that ground to a halt in late 2008. APCO subcontracted wood-framing, sheathing, and shimming work to Zitting Construction. The subcontract stated that payment to Zitting was conditioned on APCO’s receipt of payment from the project owner, Gemstone—as the Nevada Supreme Court described it, this was “known colloquially as a pay-if-paid clause.”

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Did a subcontractor’s commercial general liability insurer have a duty to defend the project owner and construction manager in an injury lawsuit by the subcontractor’s employee? Scottsdale Insurance Company v. Columbia Insurance Group, Inc. United States Court of Appeals for the Seventh Circuit (2020). by Hugh Anderson

DH Mechanical provided heating, ventilating, and air conditioning construction services for a building construction project in Chicago. A TDH employee plunged through an unguarded opening and fell 22 feet, sustaining serious injuries. The employee sued the construction manager, Prairie Management and Development, and the project owner, Rockwell Properties, alleging negligent supervision and monitoring of the work of the subcontractors and of the worksite; the lawsuit also included claims against other project participants. The lawsuit did not contain any direct or express claims or allegations against TDH Mechanical, which was not subject to injury litigation by an employee, by virtue of the workers’ compensation laws.

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Applicability of state building codes to a project undertaken by a bi-state commission created under the U.S. Constitution’s Compact Clause. Delaware River Joint Toll Bridge Commission v. Secretary, Pennsylvania Department of Labor and Industry. United States Court of Appeals for the Third Circuit (2021). by Hugh Anderson

In 1934 the State of New Jersey and the Commonwealth of Pennsylvania enacted laws forming the Delaware River Joint Toll Bridge Commission. As stated in the Constitution (Article I), all agreements and compacts between the states must be approved by Congress—such approval was given to the toll bridge agreement between Pennsylvania and New Jersey in 1935. The Commission was granted sweeping authority to own, construct, maintain, and operate bridges and related improvements and facilities, and to “exercise all other powers…reasonably necessary to [the Commission’s] authorized purposes…,” specifically including the
exercise of powers with respect to its property and affairs. These broad powers were stated to be subject to an exception: the Commission was expressly denied the power to levy taxes.

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Sealing and Signing Divisions 00 and 01, Is it Architecture or Engineering?, by Kevin O’Beirne

Should design professionals seal and sign Division 00 documents and Division 01 specifications? In the past, when the architect or engineer prepared all the construction documents and administered the project’s construction alone, it probably did not matter much. In modern times, however, where an owner’s procurement department, a construction manager, or the owner’s program manager may prepare part or all of Divisions 00 and 01, the answers are less clear and more important.

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Applicability of statute that prohibits the contractual elimination of tort liability, to a contract clause waiving the right to subrogation. Rural Mutual Insurance Co. v. Lester Buildings, LLC. Supreme Court of Wisconsin (2019), by Hugh Anderson

Applicability of statute that prohibits the contractual elimination of tort liability, to a contract clause waiving the right to subrogation. Rural Mutual Insurance Co. v. Lester Buildings, LLC. Supreme Court of Wisconsin (2019)

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Project owner’s liability for delays arising from design review comments that deviated from the contractually-established design process. Appeals of RBC Construction Corp. Armed Services Board of Contract Appeals (2020), by Hugh Anderson

Project owner’s liability for delays arising from design review comments that deviated from the contractually-established design process. Appeals of RBC Construction Corp. Armed Services Board of Contract Appeals (2020), by Hugh Anderson

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Timeliness of construction defect claims—commencement of California’s 10 year statutory repose period. Hensel Phelps Construction Co. v. Superior Court. Court of Appeals of California (2020).by Hugh Anderson

Timeliness of construction defect claims—commencement of California’s 10 year statutory repose period. Hensel Phelps Construction Co. v. Superior Court. Court of Appeals of California (2020).by Hugh Anderson

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Contractor Incentives, The Carrot vs. the Stick, by Kevin O’Beirne

A wry, old joke goes, “The beatings will continue until morale improves.” No one enjoys being threatened before doing anything wrong, yet construction contracts do this to contractors all the time. Contract clauses intended to discourage certain actions or outcomes are common. Among these are liquidated damages and penalties for late completion, special (conditional) damages […]

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