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DIRECTORY AND CAPABILITIES

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...

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Hawaii Supreme Court Says Aloha to Insurers Trying to Recoup Defense Costs From Policyholders

January 02, 2024 — Lara Degenhart Cassidy & Yosef Itkin - Hunton Insurance Recovery Blog
The Hawaii Supreme Court emphatically rejected insurer efforts to seek reimbursement of defense costs absent a provision in the policy providing for such reimbursement in St. Paul Fire & Marine Insurance Company v. Bodell Construction Company, No. SCCQ-22-0000658, 2023 WL 7517083, (Haw. Nov. 14, 2023). The state high court’s well-reasoned decision rests on bedrock law regarding insurance policy construction and application, follows the nationwide trend of courts compelling insurers to satisfy their contractual obligations in full, and should carry great weight as other jurisdictions continue to debate the same issue. In Bodell, the Hawaii Supreme Court joined the swelling ranks of courts recognizing that an insurer may not use a reservation of rights to create the extra-contractual “right” to recoup already paid defense costs for a claim on which the insurer ultimately owes no coverage. See, e.g., Am. & Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526 (Pa. 2010). Other jurisdictions, such as California, will permit an insurer to seek reimbursement from a policyholder for defense costs incurred in defending claims later determined to be uncovered. See Buss v. Superior Court, 16 Cal.4th 35 (1997) (holding insurers have a right to reimbursement of defense costs incurred for noncovered claims). Reprinted courtesy of Lara Degenhart Cassidy, Hunton Andrews Kurth and Yosef Itkin, Hunton Andrews Kurth Ms. Cassidy may be contacted at lcassidy@HuntonAK.com Mr. Itkin may be contacted at yitkin@HuntonAK.com Read the full story...

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Orange County Team Obtains Unanimous Defense Verdict in Case Involving Failed Real Estate Transaction

March 25, 2024 — Lewis Brisbois Newsroom
Orange County, Calif. (March 4, 2024) - Orange County Partners Esther P. Holm and Alexandra Anast obtained a unanimous defense verdict in a real estate matter involving a failed real estate transaction. The property at issue, which was located in the West Hollywood Hills and had beautiful views, was undergoing extensive remodeling. There were several bids for its purchase. Ultimately, the plaintiff, a real estate investor, was awarded the purchase. The plaintiff and the seller entered into a real estate purchase agreement, but the plaintiff failed to release the physical contingencies within the 17-day period prescribed by the contract. Instead, the plaintiff demanded a reduction in price, which the seller rejected. The plaintiff then filed a lis pendens on the property, clouding the title and making it impossible for the sellers to sell the property to anyone else. The buyer and seller subsequently engaged counsel. The plaintiff filed the lawsuit against the seller as well as the real estate company and its agents. Prior to trial, the plaintiff and the seller reached a settlement. Read the full story...
Reprinted courtesy of Lewis Brisbois

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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

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Congratulations to BWB&O’s Newport Beach Team on Obtaining a Defense Verdict in Favor of their Subcontractor Client!

April 02, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara’s Newport Beach Partner Morgan Stiefel and Associate Brandon Cook obtained a defense verdict after years-long litigation in favor of their subcontractor client. This lawsuit stemmed from a claim made by Plaintiff for eye injuries arising out of claimed negligence and strict liability associated with our client’s performance of a sandblasting job at a construction site adjacent to Plaintiff’s home. Plaintiff alleges that while she was in her backyard, sand hit her in the eyes at a high velocity speed, resulting in permanent damage to her eyes. We argued our clients took all necessary safety precautions in the performance of this job, and Plaintiff’s eye irritation symptoms could not have been caused by our client. All of her alleged injuries were either pre-existing or could be explained by circumstances other than our client’s actions. Through expert testimony and our arguments, we were able to show the jury that Plaintiff lied about the sand entering her eyes at a high velocity and her symptoms being caused by our clients’ performance of the sandblasting job. Read the full story...
Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Experts: Best Bet in $300M Osage Nation Wind Farm Dispute Is Negotiation

March 11, 2024 — Daniel Tyson - Engineering News-Record
Nearly two months after a federal judge ruled that renewables developer Enel Green Power North America must deconstruct 84 land-based wind turbines because it did not secure mineral rights on Osage Nation land in northern Oklahoma, two energy sector attorneys say the unit of an Italy-based company must negotiate with the tribe. Reprinted courtesy of Daniel Tyson, Engineering News-Record Mr. Tyson may be contacted at tysond@enr.com Read the full story...

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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

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What You Should Know About Liquidated Damages and Liability Caps for Delay and Performance Liquidated Damages

May 06, 2024 — Chris Cazenave - ConsensusDocs
Liquidated damage clauses are omnipresent in today’s construction contracts—often considered in early negotiations to provide a degree of certainty and limit financial liability. There are two principal types of LDs appearing in construction contracts—(i.) damages for delay when a contractor fails to deliver a project by a certain milestone; and (ii.) performance damages when a contractor fails to meet specific performance requirements. Differentiating between LDs for delay and LDs for performance—especially when both LD types are combined in the same contract—is key to risk awareness and allocation during contract negotiations and throughout performance. This article briefly outlines what you should know about LDs for delay and LDs for failing to meet certain performance requirements. The article also covers how contractors can allocate and cap risks based on risks each party can either manage, insure, or otherwise limit. Read the full story...
Reprinted courtesy of Chris Cazenave, Jones Walker LLP
Mr. Cazenave may be contacted at ccazenave@joneswalker.com

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