Construction Law Blog

2004-02-24T14:55:00.000-06:00

"Prosser hospital district wins stucco judgment": The Tri-City Herald reports that while a Prosser, Washington hospital has been awarded a $1.5 million judgment against the Yakima stucco contractor that renovated the hospital, it will likely collect only about $300,000 of the award due to the receivership proceedings of Reliance Insurance Company, the contractor's insurer.

2004-02-24T14:29:00.000-06:00

A landscaping contractor shovels dirt and plants daisies on Jayson Williams' grave: The Associated Press carries this account of a prosecution witness's testimony in the murder trial of the former NBA player in Somerville, New Jersey. New York Post columnist Douglas Montero adds his evaluation of the contractor's testimony in a column headlined, "AFTER THIS, BIBLE-TOTING THUG DOESN'T HAVE A PRAYER."

2004-02-24T13:26:00.000-06:00

"Construction Worker Killed in Bethesda Wall Collapse": The Associated Press reports here on a tragedy that occurred this morning.

2004-02-24T11:05:00.000-06:00

"Contractor levels theft lawsuit at former exec": In its February 20, 2004 edition, Business First of Columbus reports here about litigation initiated in late January by Corna/Kokosing Construction Company against a former vice-president, Larry Miranda, and others.

2004-02-24T09:54:00.000-06:00

A palace built on sand: Until the dome of its roof fell on the heads of its guests after only a year-and-a-half or so of use, Moscow's Transvaal water park had been described by some experts as “the best implemented investment and construction project of 2002.” This very interesting article on the Gateway To Russia website discusses the four most likely causes of the February 14 collapse, which ultimately killed about 28 and injured dozens more. But the physical causes may merely be symptomatic of a more sinister explanation. Money quote: The tragedy at Transvaal has confirmed what everybody has long suspected. The two hundred permits and agreements required to build any large building in Moscow by no means guarantee the quality of design and construction. Moreover, these administrative barriers, raised by officials under the pretense of public safety, have become a real hazard to people’s life and health. This is no paradox. It is obvious that there is always some critical administrative requirement threshold beyond which it simply becomes impossible to work honestly. According to Moscow developers, bribes to officials for a variety of services account for about 25% of construction costs. It is ridiculous to think that design estimates “garnished” with a fat envelope stuffed with dollars undergo any serious examination at all. Moreover, it is extremely common for builders to collect the required signatures after construction is already underway. One could ask why experts call “drifted” soil the most probable cause for Transvaal’s collapse, if under current regulations a construction permit is only issued after a geological survey. Yet Vadim Mikhailov, a member of the commission investigating the causes of the catastrophe and the head of Excavation Rescue (Diggerspas) at the Ministry of Emergencies, stated publicly last week that “land surveying at the development site was not carried out prior to construction.” How is this possible? Everybody knows: a geological survey certificate has long been pure formality. Most frequently, it is simply bought. At best, a minimum of purely formal inspections is conducted.

2004-02-24T07:47:00.000-06:00

Bossier City bridge removal contractor is in the cross-hairs: The Shreveport Times reports that a state audit and parish sheriff's investigation found that a contractor charged the city for hauling off the concrete decking and pilings from a utility bridge, but allegedly dumped the demolition debris into the bayou instead. A separate contractor was paid more than $100,000 to clean up the debris. My question: where was the city's construction inspector when all this was going on?

2004-02-24T07:36:00.000-06:00

"A rookie mistake": This Minneapolis Star-Tribune article describes how U.S. Senator Norm Coleman got in trouble by accepting a contribution from the Minnesota Utility Contractors Association in his office following a meeting in which pending legislation was discussed.

2004-02-24T07:18:00.000-06:00

"2 years, 18 deaths in county along interstate, as construction nears end": The St. Augustine (Florida) Record carries this article which reviews two years of construction on 35 miles of I-95.

2004-02-24T07:07:00.000-06:00

San Diego contractor-at-risk ballot initiative set for March 2 vote: The San Diego Union-Tribune describes here a proposal set for voter consideration next week. "Proposition B, placed on the ballot by the City Council, would allow officials to bypass current city charter requirements to accept the lowest responsible bid for public-works projects and competitively negotiate contracts instead. The new procedure, called construction manager at risk, would require bidders to guarantee their price and help city engineers in preparing job specifications and designs. If costs go over the price, the construction manager would be responsible for the extra expense."

2004-02-23T15:18:00.000-06:00

"Judge refuses to halt plumbing contract for convention center": The Cincinnatti Business Courier reports that a state judge refused an effort today of Thomas J. Dyer Company to halt awarding of a $3.3 million plumbing subcontract to Nelson Stark in connection with the $160 million expansion of the Cincinnatti Convention Center.

2004-02-23T09:08:00.000-06:00

One week after the Toledo bridge crane disaster: The Cleveland Plain Dealer carries this article today, entitled "Bearing hopes, breaking hearts." The website for the Maumee River Crossing, the largest construction project ever in Ohio, is here.

2004-02-23T06:22:00.000-06:00

"There aren't any deck chairs, and no backyard grill is available": Tennessean columnist Gail Kerr describes the public observation deck setup at the site where Nashville's $120 million symphony hall, scheduled to open in September 2006, is under construction.

2004-02-22T18:05:00.000-06:00

"Foreman Helps Recover Stolen Construction Equipment": KCCI-TV in Iowa reports how the actions of a diligent construction foreman lead to the breakup of a ring of thieves who had stolen hundreds of thousands of dollars of construction equipment.

2004-02-22T17:58:00.000-06:00

"State shoveled money to contractor Bowles": This report by Wisconsin State Journal begins, "State officials appear to have repeatedly skirted normal processes to ensure that state money made its way to Milwaukee contractor John P. Bowles, a central figure in a kickback scandal involving former Sen. Gary George."

2004-02-22T17:37:00.000-06:00

"Contractors near top of list for most complaints" is the headline of an article in today's San Diego Union-Tribune describing the nature of frequent complaints mostly about home-improvement contractors.

2004-02-22T17:30:00.000-06:00

"Failures of Turkish Contractors in Media Spotlight": An article in Zaman Online, the "first Turkish paper on the internet", on the poor image of Turkish contractors, begins "[t]he image of Turkish contractors in general has tumbled after it was found that several Turkish contractors had been responsible for construction of buildings that had collapsed recently in Konya and Moscow, not to mention various earthquakes over the past years." And this AFP report from Instanbul titled, "Building collapse shows up low standards in Turkey's construction sector" provides details about what caused the collapse of an 11-story apartment building that killed 92.

2004-02-22T16:18:00.000-06:00

A 1998 road repair job goes awry; let the "chips" fall where they may (groan): An opinion the U.S. Court of Appeals for the Ninth Circuit issued Friday begins, "In the summer of 1998, the Spokane County Road Department applied a seal coat to Bigelow Gulch Road. Unfortunately for the County, the mixture did not set as expected, resulting in damage to approximately eight hundred cars hit by flying rock chips and oil." The rock chips set in motion a cycle of additional events: criticism and investigation of the practices of the county risk manager who attended to resolving the damage claims, his suspension and firing (without a hearing to allow him to clear his name), publication of the explicit termination letter from his personnel file and, ultimately, this lawsuit for violation of his due process rights. The Court's decision in Cox v. Roskelley, No. 00-35887, continues the misery for Spokane County; both the majority and dissenting opinion can be read here.

2004-02-22T16:08:00.000-06:00

The Kansas City Business Journal is reporting: On Thursday, a Minnesota intermediate appellate court affirmed an October 2002 $29.6 million award to Lester Building Systems, a division of Butler Manufacturing, against Louisiana-Pacific Coporation. The suit arises from Lester's purchase of siding from LP. Apparently, a significant part of the damages and award is also the subject of federal litigation now pending in the 9th Circuit Court of Appeals. More details here.

2004-02-22T15:57:00.000-06:00

The revolving door between military procurement officers and defense contractors is being scrutinized: Last Thursday, the Washington Post carried this lengthy report about the hiring practices of military contractors, and the senior government officials who have parlayed their civil service into a very nice gig with a contractor.

2004-02-22T15:36:00.000-06:00

The Chicago Tribune reports: Two Illinois federal courts dealt with criminal charges arising from construction-related activity. In the first, "Group aids firm in job-death case," reporter William Grady describes oral argument in the 7th Circuit Court of Appeals in the government's attempt to reinstate criminal charges against the corporate parent of an electrical subcontractor. The subcontractor, L. E. Myers Company, has been charged with criminal failure to provide safety training to its employees. The case arises out of the electrocution deaths of two of its employees. In the second article, "Courthouse manager convicted in bribery", reporter Matt O'Connor describes the plea entered by the former head of the General Services Administration at the U.S. Courthouse building in Chicago. The plea admitted that prosecutors could prove she steered work to a contractor in return for his installing windows, siding and a furnace in her home. According to the article, Ms. Ingram's case marks the end of a 5-year FBI investigation into "rampant bribery" at the building, which resulted in the conviction of 16 defendants, 9 of whom were contractors.

2004-02-22T15:30:00.000-06:00

Fireman's Fund does the right thing: Construction of a $5.7 million water treatment plant in Colbert County, Alabama is two years behind schedule, but should be completed soon, as a result of the surety's takeover of the project and settlement of legal claims against it by the county. The Times Daily provides this article.

2004-02-22T15:24:00.000-06:00

ABC News/Good Morning America conducts a sting operation to uncover the "masters of disaster": GMA reports here about the results of a sting operation conducted to surprise and humiliate two unlicensed home remodeling contractors who continue to try and do business in New York.

2004-02-22T15:13:00.000-06:00

Two Virginia asbestos contractors lose their state licenses: The Virginian-Pilot reports here that "[t]he state took the action because the companies had pleaded guilty in September to felony charges of using falsified training certificates to obtain asbestos licenses. "The companies are the first in Virginia to lose their contractor’s licenses in the wake of an investigation into a Virginia Beach firm that operated as an asbestos training-certificate 'diploma mill,' cranking out hundreds of fake certificates between 1995 and 2000." The article states that one of the contractors was in the middle of an $11.4 million Navy contract, and quotes an attorney for the contractors who describes the infractions as relatively minor.

2004-02-22T14:58:00.000-06:00

Home Depot stung by sudden bankruptcy of long-time contractor: After constructing more than a dozen stores and earning an "impeccable reputation" for Home Depot, Marathon Construction of Providence, Rhode Island filed for bankruptcy protection without warning. A Rockland, Maine store under construction at the time now has liens claiming in excess of $3.3 million filed against it. The Rockland Village Soup has this report.

2004-02-22T14:43:00.000-06:00

Friday was apparently open season on construction workers: In Baltimore, three workers are hit, and in Mount Pleasant, South Carolina a female bridge worker is injured, by careless vehicle drivers.

2004-02-21T07:08:00.000-06:00

The next big thing (for Houston): The local ABC-TV affiliate in Houston provides an update on the status of a major road project on one of the main arteries into downtown Houston, and describes Mayor White's indications where he, at least, would like to begin the next major construction project.

2004-02-20T15:09:00.000-06:00

Update on Moscow water park disaster: Pravda says that terrorism has beem eliminated as the cause of the roof collapse that killed 26 last Saturday. Investigators apparently have video from inside the park showing the collapse of a load-bearing column. The Turkish contractor who built it is the subject of a criminal investigation.

2004-02-20T15:03:00.000-06:00

A strike between Hawaiian concrete providers and unionized workers has crippled most construction on the islands: The Honolulu Star-Bulletin describes the impact of the strike, now in its second week.

2004-02-20T14:54:00.000-06:00

Residential construction commissions in Texas, Arizona and Oregon are designed to resolve disputes between homeowners and builders. This Fort Worth Star-Telegram article explains some of the history, objectives and mechanics of the Texas commission.

2004-02-20T13:52:00.000-06:00

Tom Hanks and wife pay up: The Idaho Statesman reports here that actor Tom Hanks and his wife, Rita Wilson, have paid an arbitration award in favor of Storey Construction, which built their home near Ketchum, Idaho. The details of the resolution are confidential, but Storey was originally seeking $1.75 million when it initiated suit against Hanks last year.

2004-02-20T08:34:00.000-06:00

Probably going to be a photo finish: The Olympic Summer Games begin in Athens in less than 6 months and a significant amount of construction remains to be completed. The Sydney Morning Herald summarizes the problems being encountered in this report in its Saturday edition. Illustrative quote from a representative of the international swimming body FINA: ""If they manage to get water in the pool then we'll be happy."

2004-02-19T21:21:00.000-06:00

Construction News Roundup: Morons: In Cincinnati yesterday morning, in an apparent robbery attempt, an assailant fired several shots at a construction manager as he sat in his truck making a phone call, according to this report in the Cincinnati Enquirer. The Seattle Times carries an article which begins, "[a] group of environmental activists climbed a construction crane in Seattle's Belltown neighborhood today, hanging a 50-by-50-foot banner that read 'Wake up Weyerhaeuser Protect Forests Now'". Deaths: In Houston, an off-duty deputy constable is killed today in a construction zone vehicle accident. KHOU-TV reports. Yesterday, in Jacksonville, Florida a 43-year-old foreman fell from an overpass that was under construction and was killed. WAWS-TV reports here. Injuries: In San Antonio, a construction worker fell into a 20-feet deep manhole Thursday morning, according to this report by KSAT-TV. And WHIO-TV in Ohio describes a scaffolding accident at the site of a future Target store in Sugarcreek Township in which 5 workers fell and were injured, one critically. Mishaps: Phone service is returning slowly to businesses and residences in Hingham, Massachusetts after a railroad construction crew mistakenly cut a phone cable yesterday. The Boston Globe reports on the current status. Government activity: This Associated Press article from Tucson begins, "Undercover sting operations are being launched throughout Arizona to nab construction, repair and remodeling companies doing business without licenses." And from Carson City, Nevada the AP reports that the Legislative Commission approved a new state regulation which penalizes the contractors who violate Nevada laws requiring payment of prevailing wages on government construction projects. Labor Commissioner Terry Johnson told the commission Wednesday the prime contractor on any job would be penalized, instead of the subcontractors, for any violations. Speaking of prevailing wages, the Las Vegas Mercury, in an article headlined "Beer Nazis?", describes the unusual allegations union carpenters and organizers made last Friday against a new Las Vegas restaurant which allegedly paid less-than-prevailing wage rates during its recent construction.

2004-02-18T21:36:00.000-06:00

A fourth worker has died in the Toledo crane disaster: The Associated Press provides these sad details. Two other workers remain in serious condition; a third is in fair condition. Meanwhile, the Toledo Blade reports on the status of the project and investigation.

2004-02-18T18:03:00.000-06:00

Actual prior knowledge of the specific, dangerous construction conditions that caused a fatal accident is not established by warnings and reports of other deficiencies along the entire course of the road construction: Today, the Texas Fourth Court of Appeals in San Antonio reversed a multi-million dollar judgment in favor of the widow and children of a man killed in a night-time, headon collision in a road construction zone in South Texas. The plaintiffs' experts testified that the lack of reflective buttons clearly delineating the center lane, combined with the presence of the old center line reflective paint markings and the lack of a well-defined road edge, contributed to create an unreasonable risk of harm at night. In order to establish that the construction company had actual knowledge of these dangerous conditions before the accident (a necessary element of their case), the plaintiffs introduced state department of transportation inspection reports which detailed specific deficiencies for the entire 2.25-mile construction project. In multiple reports, the contractor was cited for dirty barricades, vertical panels, and plastic drums; missing warning lights at the end of the construction zone, as well as a missing barricade; lights and flashers that did not work; and barrels and drums that were knocked down. No one testified that the contractor had been told about the claimed dangerous conditions in the lane of traffic where the collision occurred. The appellate court held that this was no evidence of actual knowledge and legally insufficient to support the jury's verdict. The widow and kids got nothing. The entire opinion in Price Construction, Inc. v. Castillo, No. 04-02-00708-CV, can be read here.

2004-02-18T17:54:00.000-06:00

"Failure to File Notice Costs Fleet $1.9 Million": The New York Law Journal describes the unfortunate outcome (for Fleet Bank) of a New York appellate court decision last week in which unpaid subcontractors' liens were deemed superior to the lender's position in a public housing project.

2004-02-18T11:06:00.000-06:00

"Pair set to plead guilty to bribe scheme": The New Orleans Times-Picayune carries this report which begins "More than two years after a suspicious series of school fires created a windfall for a crooked New Orleans school system bureaucrat and the Texas contractor who gave him more than $300,000 in kickbacks, both men are scheduled to plead guilty today to felony bribery charges in U.S. District Court."

2004-02-18T09:06:00.000-06:00

Air-conditioning maintenance companies need to re-think their marketing strategy: The U.S. Court of Appeals for the Tenth Circuit upheld the constitutionality of the national "do-not-call" registry that will affect telemarketers. The opinion is here, and a New York Times article about the decision is here.

2004-02-18T08:12:00.000-06:00

A party and his attorney are not immune from liability for invading personal privacy using "a piece of paper masquerading as legal process": Yesterday, the U.S. Court of Appeals for the Ninth Circuit issued an interesting opinion. In Theofel v. Farey-Jones, No. 02-15742, 03-15301, the court denied the petition for rehearing and amended (in no significant way) an opinion originally issued August 28, 2003. The case arose out of litigation in New York in connection with which Farey-Jones and his attorney, Iryna Kwasney, caused a subpoena to be served on their adversaries' internet services provider to produce "all copies of emails sent or received by anyone" at the adversary-company. The ISP, a non-party, informally attempted to reduce the scope of the request but eventually allowed Farey-Jones and Kwasney to read a number of privileged and personal emails of the plaintiffs, wholly irrelevant to the subject matter of the case. When the plaintiffs learned what had happened, they not only obtained findings from a magistrate that the subpoena was massively overbroad, patently unlawful, a transparent and egregious violation of the Federal Rules of Civil Procedure, and issued in bad faith, but also an award which socked Farey-Jones and Kwasney with sanctions of $9,000, from which they did not appeal. In the case before the 9th Circuit, the plaintiffs asserted claims for damages under two federal statutes which the court found plausible. The court also held that the defendants weren't entitled to qualified immunity under the Noerr-Pennington doctrine because the doctrine does not protect "objectively baseless" litigation activity, such as issuing a "patently unlawful", overly broad subpoena. This opinion is further evidence that the days of scorched earth litigation are drawing to a close, and that courts are becoming quite intolerant of abusive tactics that recreational litigants enjoy inflicting on their legal adversaries seemingly without consequence.

2004-02-17T16:09:00.000-06:00

The latest billion-dollar verdict from Montgomery, Alabama: Reuters carries this report which begins, "A federal jury on Tuesday ruled that top U.S. meat packer Tyson Foods Inc. illegally manipulated the cattle market, awarding damages of $1.28 billion to cattle producers in a case that could have a far-reaching impact on the $70 billion U.S. beef industry." My February 7 post below describes an earlier whopping verdict from Montgomery.

2004-02-17T14:59:00.000-06:00

And again: The Associated Press reports that a second fatal crane-related accident in as many days occurred early this afternoon. In Stratford, Connecticut a crane fell off its barge and plunged into the Housatonic River, killing the crane operator, an employee of Balfour Beatty, the general contractor on a bridge removal project.

2004-02-17T12:08:00.000-06:00

Just trying to bring a little extra money into the household: Syndicated columnist Leonard Pitts comments on the creative method that a contractor's wife attempted as a means to earn a few bucks - which has also lead to legal problems, prosecution and publicity - in an article headlined "Deep in the heart of Texas they're nuts".

2004-02-17T07:59:00.000-06:00

Logo trademark infringement? Just put on a happy face. In Baton Rouge, Louisiana, potential trademark litigation between The Shaw Group and S.L. Shaw Construction Company concerning the logo used by S.L. Shaw has been temporarily avoided in an amicable manner: "Signs with large smiling faces, about 4 feet by 8 feet, have sprung up at S.L. Shaw's construction sites around Baton Rouge to cover what a much-larger, similarly named company, The Shaw Group Inc. whose headquarters is in Baton Rouge, says is a trademark infringement," according to this report on the website of WBRZ News 2.

2004-02-17T07:27:00.000-06:00

"Ohio Crane Collapse Kills Three Workers": The Associated Press provides a report on yesterday's tragedy in Toledo which begins, "A 1,000-ton construction crane piecing together a new interstate bridge collapsed, killing three workers and injuring five others while narrowly missing a busy highway." The Toledo Blade carries reports this morning about the accident, the contractor, Fru-Con Construction Corp., the accident's impact, and a summary of crane-related accidents.

2004-02-16T11:01:00.000-06:00

"Construction Workers Recover 'Kicked Back' Wages": In HR news, BLR carries this report today which begins, "California Technology Systems, doing business as CTS Fire Protection, has paid $155,950 in back wages to 19 fire alarm and sprinkler installers after an investigation by the U.S. Department of Labor....The department alleges owners of CTS Fire Protection used a "kickback scheme" to avoid paying employees in California the correct prevailing wage rate required by the Davis-Bacon Act (DBA). After receiving their paychecks, employees returned a portion of their money to the foreman, according to department investigators."

2004-02-16T05:33:00.000-06:00

Faulty construction said to be likely cause of Moscow water park roof collapse that kills 25 and injures more than 100: The Associated Press carries this report of Saturday's disaster which left a hole the size of a football field in the roof. "Investigators said the disaster may have been caused by a heavy buildup of snow, the stresses caused by the difference between indoor and outdoor temperatures, or water seepage into the roof's concrete supports."

2004-02-14T10:16:00.000-06:00

The land of runaway juries? Texas generally, and Houston specifically, earned a nationwide reputation in the 1980s as the home of unpredictable, generous jury awards for plaintiffs. The $11 billion+ Pennzoil/Texaco verdict in 1985 was the pinnacle of that phenomenon. However, this Houston Chronicle article describes a different attitude that frequently appears during civil jury trial selection.

2004-02-13T12:31:00.000-06:00

"Former Vegas builder settles $8 million construction defect case": The Associated Press reports today that former builder Pacific Homes (ed. - more likely its insurers) settled with a condominium association which experienced leaking windows and burst pipes after the 219-unit complex opened in 1995.

2004-02-13T12:18:00.000-06:00

Crime news: "Drug dealers are remodeling their homes and doing it on your dime. Police say it's a new problem that's popped up in the last year. They say drug users are stealing items from construction sights in exchange for drugs. They're stealing things like tools, lumber and even windows" is the beginning of this print and audio report from WHO-TV in Des Moines. In Idaho, "Nampa police say more than $100,000 worth of construction equipment was stolen from a storage lot" via this post by KTVB-TV.

2004-02-13T11:15:00.000-06:00

An employee's material or gross deviation from permitted use of a company vehicle will render the vehicle insurance ineffective: The Texas Supreme Court also issued an opinion this morning in Old American County Mutual Fire Insurance Company v. Renfrow, No. 02-1087, that involved a situation contractors, unfortunately, experience all-too-frequently. Under the omnibus clause of a commercial auto liability insurance policy, the employer and anyone using the vehicle with the employer's permission are covered. But that insurance coverage can be wasted if the employee significantly exceeds the permitted use of the vehicle. And the facts of each situation have to be evaluated to see if permission was or was not exceeded. Here, the employee, Michael, was given permission to drive the company truck home so he could use it early the next morning. Instead, he went to Mili Jo's house and they drove to a bar 40 miles away. Mili Jo was killed in an accident on the way back home; the district attorney called the event "intoxication manslaughter". The supreme court held that the trip to the bar was such a gross and material alteration of Michael's permitted use of the company truck, that there were no insurance coverage benefits for Mili Jo's survivors to access. Very tragic.

2004-02-13T10:40:00.000-06:00

Texas Supreme Court rejects creative effort to recover attorney's fees: This morning, in Martin v. Amerman, No. 02-0731, the Texas Supreme Court considered a dispute between two Beaumont neighbors over a 30-foot strip of land. The dispute arose from conflicting surveys that each owner received when they bought their property. In Texas, the state property code provides that the method to determine disputes involving "title to lands" and ownership is via what is known as a trespass-to-try-title action, which not only has its own unique set of rules for pleading and proving the claim but also does not entitle the successful plaintiff to recover attorney's fees. On the other hand, if the question of "boundary location" could be determined equally as authoritatively by a declaratory judgment suit, then attorney's fees could be recovered (in the court's discretion) under the Texas Declaratory Judgments Act. Here, the Martins won the boundary/ownership dispute and also were awarded their attorney's fees because they couched their claim as one for declaratory judgment. The supreme court said we'll let you have the title issue only because the Amermans didn't object that you proceeded in less than strict compliance with the trespass-to-try-title rules and waived that argument for appeal purposes, but not so fast on the attorney's fees recovery: "[W]e again decline to recognize a substantive distinction between title and boundary issues, this time for the purpose of allowing alternative relief under the Declaratory Judgments Act. We conclude, as did the court of appeals, that the trespass-to-try-title statute governs the parties' substantive claims in this case. The statute expressly provides that it is "the method for determining title to . . . real property.".... Accordingly, the Martins may not proceed alternatively under the Declaratory Judgments Act to recover their attorney's fees."

2004-02-13T10:09:00.000-06:00

In our world, a construction disaster means you get sued; in theirs, you go to jail. When a water tank collapsed in India yesterday killing two children and injuring nine others, the contractor who built it was arrested, according to this article. The New York Times reported earlier this month, from Konya, Turkey, that two contractors believed responsible for shoddy construction work that led to the collapse of an apartment building and the deaths of dozens were also arrested

2004-02-13T09:52:00.000-06:00

The west side of Houston braces for an atomic road construction headache this weekend: Tonight at 9 p.m. a major portion of the entire Southwest Freeway (U.S. 59) - from downtown to the West Loop - will shut down all weekend. The reason for it and the traffic impact for the next 33 months are explained in this Houston Chronicle article.

2004-02-12T13:10:00.000-06:00

A statutorily-required, pre-suit administrative claim under the Federal Tort Claims Act is not sufficient assertion of the claim in a court of competent jurisdiction as will toll the running of the statute of limitations for purposes of state law tort claims. Today, the 5th Circuit Court of Appeals in Drury v. Jim Smith Contracting Company, Inc., No. 03-30161, considered an appeal from a summary judgment entered against a Louisiana landowner who had sued the U.S. Army Corps of Engineers and its contractor, Smith, for property damage that occurred during the work. A two-year statute of limitations applied under Louisiana law. The suit, which included Federal Tort Claims Act claims against the Corps and state tort law claims against the contractor, was not filed for more than two years after the contractor had last worked on the project. The landowner contended that the pre-suit administrative claim against the Corps asserted, as required, under the FTCA served to toll the running of limitations on his state law claims against the contractor. The Court of Appeals disagreed and affirmed the summary judgment.

2004-02-12T10:10:00.000-06:00

Tales from the crypt: In Salisbury, Maryland a likely Indian burial ground containing bones that may be as much as 400 years old is unearthed by a construction crew, according to this Associated Press report. More amazingly, in England, a pre-road improvement survey by archaeologists last fall led to the discovery of a 1,400-year-old burial chamber of an Anglo-Saxon king. The U.K.'s Guardian Unlimited newspaper provides this description of the astonishing find.

2004-02-11T22:25:00.000-06:00

"GAO: Defense Contractors Owe $3B in Taxes". Associated Press tax writer Mary Dalrymple reports that a General Accounting Office investigation determined that about 27,000 contractors who do business with the Department of Defense owed $3 billion in taxes as of September 30, 2002, mostly employee payroll withholding amounts.

2004-02-11T22:15:00.000-06:00

Massachusetts sunroom ripoff? Yesterday, the Boston Globe carried this article describing a lawsuit filed by Attorney General Thomas F. Reilly in which it is alleged that a North Andover contractor took close to $1 million from about 125 customers and failed to install the sunrooms they ordered, leaving many of the consumers with construction eyesores in their backyards. A similar situation leads to criminal charges against a Pennsylvania contractor who allegedly took at least $345,000 from a number of consumers and then never finished the work.

2004-02-11T22:07:00.000-06:00

News from the criminal courts: The Kansas City Star reports here about the ongoing felony theft trial of a KC contractor. "San Diego contractor pleads guilty over illegal contributions" is the headline of this Associated Press article in the San Diego Union-Tribune. UPDATE: And the San Mateo County Times reports that Menlo Park police said a landscaping contractor was arrested Tuesday, accused of bilking an elderly man of more than $1 million over a six-year period.

2004-02-11T12:50:00.000-06:00

"Justice is blind, and unstable, in half of state courthouses": The Contra Costa Times publishes this Associated Press report which begins, "Nearly half of California's aging courthouses examined for seismic safety could suffer significant damage in a major earthquake, according to a state report released Friday."

2004-02-11T12:35:00.000-06:00

"NTSB links poor design to fatal work-zone wrecks; report urges states to make areas safer": This Associated Press news article discusses an NTSB report on highway construction zone fatalities.

2004-02-11T09:13:00.000-06:00

An employee doesn't have to be a "company man" in order to bind his employer to boilerplate, contractual indemnity provisions of a work order. Typical construction site scenario: Contractor's onsite supervisor signs a work order to engage a subcontractor's services. The work order contains broad hold-harmless and indemnity provisions in favor of the subcontractor pre-printed on the reverse side. Attention to the provisions on the reverse side is attempted by a statement appearing immediately above the customer-contractor's signature line. Did the contractor's supervisor have authority to accept the indemnity and release provisions pre-printed on the reverse side of the work order? Yesterday, in The Houston Exploration Company v. Halliburton Energy Services, Inc., No. 02-30978, the 5th Circuit Court of Appeals said yes. The supervisor's "express authority to enter into the work order agreements necessarily included the implied authority to consent to the release and indemnity provision". For the second time, the 5th Circuit denied the contractor recovery of a damage award of nearly $7,000,000 arising from the subcontractor's negligent provision of the services covered by the work order. The decision in the first appeal of the case can be accessed here.

2004-02-11T08:36:00.000-06:00

Being "technically right" doesn't support an award of almost $190,000 in attorneys' fees to prove it: In an opinion issued yesterday, the Dallas Court of Appeals reviewed a case in which a jury found that a counterclaim-plaintiff sustained $1 of actual damages but incurred attorneys' fees of $189,425 in doing so. The trial court's judgment awarded all of the attorneys' fees. The appeals court took it all away and rendered judgment for the appellant. File this under the category of "pigs get fat and hogs get slaughtered."

2004-02-11T05:50:00.000-06:00

"Architect ordered to detail bribes": This San Antonio Express-News story begins, "A federal judge on Tuesday ordered former Harlandale School District architect Louis Cruz to detail who paid or received bribes in an alleged corruption scheme involving school construction projects."

2004-02-10T17:29:00.000-06:00

Howard Bashman of the How Appealing Appellate Law blog notes a decision last week by an intermediate California appellate court that contractual pre-dispute jury trial waivers are unenforceable under California law.

2004-02-09T15:18:00.000-06:00

Construction is on hold at the World Trade Center site while a $3.5 billion question is decided. Today, the first of possibly 3 trials begins in New York between the owner of the WTC towers and his insurers. The first trial will determine whether the terms of the property insurance policy form that was negotiated just weeks before September 11, 2001 defined the destruction of the towers as one occurrence or as two. If the answer is "neither", that "occurrence" wasn't defined, then a second trial will be held on essentially the same issue concerning a second set of insurance binder terms. If trial of the third issue is ever necessary, then another jury will have to decide if the terrorist attacks, which occurred about 16 minutes apart, constituted one or two insured occurrences. Pheww.

2004-02-09T15:08:00.000-06:00

"Construction company reaches settlement in pollution charges": The Associated Press reports here that Williams Brothers Construction Company, "one of [Texas's] largest road construction companies, has agreed to pay $500,000 to settle felony charges of illegally dumping hazardous waste into Houston waterways."

2004-02-09T12:17:00.000-06:00

Texas litigants have new incentive to attempt to achieve early settlement of suits: For those not familiar with it, legislation effective as of January 1 has fundamentally changed the business of how, why and when to settle lawsuits. Even defendants named in suits deemed patently frivolous will want to seriously consider biting the bullet and breaking out the checkbook. This Houston Business Journal article explains why.

2004-02-09T12:14:00.000-06:00

"Use of camera phones becomes a workplace issue": The Houston Business Journal reports here on some of the legal issues attendant to the proliferation of camera phones.

2004-02-09T10:27:00.000-06:00

The case of the modest lawyer: The 7th Circuit Court of Appeals issued an opinion in Adco Oil Company v. Rovell, no. 03-2575, last Tuesday. Its decision affirmed the dismissal of a legal malpractice suit and rescued the lawyer involved from the consequences of seriously misreading how persuasive he'd been with a jury. Seems that in the trial of the case in which Rovell represented Adco, Rovell negotiated a deal whereby the case would be resolved via a "high-low" agreement, i.e. that regardless of what the jury actually did, in no event would Adco recover more than $850,000 nor less than $200,000. The main purpose of this type of an agreement is to end the case and eliminate the prospect of further appeals, expense, etc. Unfortunately as it turns out for Rovell, he underestimated his advocacy skills: the jury returned a verdict of $120 million! Adco then decided that $850,000 wasn't enough so it attempted to get the other $119 million (or so) from Rovell and his malpractice insurer. Matters became more complicated when (a) Rovell apparently didn't give timely notice of the malpractice suit by Adco to his liablity carrier, and (b) Rovell filed for bankruptcy protection. Poor guy. To see on what basis the Court of Appeals ruled for Rovell, you'll have to read the opinion.

2004-02-09T08:27:00.000-06:00

News from the Lost and Found Department: In Des Moines, "thieves have been known to steal everything from construction sites but the kitchen sink. On Wednesday, that changed." The Associated Press reports on a common occurrence in the construction industry. In Albany, "a body found buried at a construction site has been identified as that of a woman missing for more than 57 years, police said Sunday."

2004-02-08T22:24:00.000-06:00

"Toll roads are coming, and in profusion." This article in Sunday's Austin American-Statesman explains why.

2004-02-07T07:50:00.000-06:00

"I think I had a good jury, and they went along with us." Alabama continues to lead the nation as a plaintiff's paradise. I don't know what it is about the civil justice system over there, but juries really go over-the-top in correcting injustices. The latest example occurred Thursday when a Macon County, Alabama jury awarded $1.6 billion to a woman who, for about 6 years, paid $50 per month for a nonexistent, $25,000 life insurance policy from Dallas-based Southwestern Life Insurance Company. The total amount cited also includes what was awarded against the agent involved in the episode, who reportedly has a history of this type of scam. Of course, Southwestern Life is appealing; the most difficult part of this for them will be posting a security bond for the judgment while the appeal is prosecuted. But when the smoke eventually clears, Ms. Whitaker and her attorney will not see an 8-figure amount; I don't believe they'll even receive an amount north of $500,000, whether in settlement or a new trial, which would still be an outstanding result. We'll see.

2004-02-04T10:46:00.000-06:00

Contractors/sureties win one in ongoing battle over governmental sovereign immunity from suit: The Texas Supreme Court has conclusively established that the State is immune from suit brought for breach of contract by an unpaid contractor. The contractor has to go to the legislature to get paid. Good luck with all that. Last Thursday, the Austin Court of Appeals ruled "[b]ut just as Texas courts have adhered to this general rule [concerning state immunity from suit] for over a century, they have also recognized an exception to this rule--when the State initiates suit. It is well established that the State's initiation of suit is an exception to sovereign immunity from suit clearly recognized by Texas courts." So, since the state had brought this suit, it waived immunity from the counterclaims related to the core legal and factual issues it had raised. Good.

2004-02-04T10:11:00.000-06:00

Owner-Developers, read the payment/performance bond at the beginning not end of the project; it may not provide the protection you're paying for: The 14th Court of Appeals in Houston ruled last week that a private owner's project was not exempt from a contractor's lien and foreclosure proceedings because the payment bond the owner had supplied to provide that protection didn't meet the requirements of the Texas Property Code. All the bond had to do was "attempt" to comply with the statutory requirements, or evidence an intent to comply. It didn't. In the meanwhile, the surety, United Pacific Insurance Company, had been liquidated in Pennsylvania. Looks like the owner and its lenders end up holding the bag on this one.

2004-02-04T09:12:00.000-06:00

General contractors, buy that "owner-controlled" insurance: In a case of first impression decided January 22, the 1st Court of Appeals in Houston ruled that the Texas Worker's Compensation Act's "deemed employer/employee relationship extends throughout all tiers of subcontractors when the general contractor has purchased workers' compensation insurance that covers all of the workers on the site." Therefore, a worker injured on the construction site cannot bring a third-party claim against another site contractor, including independent contractors, for damages. The worker's sole recourse is for worker's compensation benefits. This case is probably heading to the Texas Supreme Court.

2004-02-04T08:13:00.000-06:00

Making plaintiffs "rent" the resolution process: Howard Bashman, author of arguably the best legal weblog, notes an article in the Boston Globe describing Massachusetts' plaintiff's attorneys resistance to a new law designed to speed-up resolution of civil cases. Effective last October 1, state law allowed court clerks to assess fees ranging between $90 and $120 on the annual filing date of a case, and each year thereafter. Is it fair to impose these fees on a party without regard to the efforts he's made to settle, get to trial or otherwise bring the case to a conclusion?

2004-02-03T21:01:00.000-06:00

Daubert progeny: Expert witness testimony is frequently necessary on all sorts of subjects in the trial of a construction law case. But the testimony is useless unless it's based on reliable data and analysis. On Friday, in Kerr-McGee Corporation v. Helton, no. 02-0356, the Texas Supreme Court reversed and rendered a judgment because expert witness testimony was deemed insufficiently reliable to establish or support a sizable damages award to plaintiff-royalty interest owners in an oil-and-gas case. The supreme court also rejected the appellees' pleas for a "do-over" remand of the case to re-determine damages "in the interest of justice." Extensive resources related to Daubert-type questions (principally by the federal courts) are available at Blog 702, which is the weblog of the excellent site Daubert On The Web.

2004-02-01T16:41:00.000-06:00

"Farmers in remediation investigation": The Dallas Business Journal reported last week that "the state's third-largest property and casualty insurer is investigating a Waco company that provides adjustment services on mold claims and a string of North Texas remediation firms launched by former adjusters."

2004-02-01T16:32:00.000-06:00

"Best Buy Plans 73 More Stores": The Dallas Business Journal reports that "Best Buy Co. Inc., which has 15 stores in the Dallas-Fort Worth area, plans to open 73 new stores in the United States and Canada in fiscal 2005."

2004-02-01T10:43:00.000-06:00

Need an orbital sander or angle grinder? Here's a subliminal ad for hand tools. After watching this, I suddenly had an intense desire to buy a new hammer, saw, 2-speed battery drill, even a jackhammer. So I had to watch it several more times to research and understand what made this ad so effective.

2004-01-29T11:51:00.000-06:00

This is a new weblog focused on the things I do on a daily basis: practice construction law and litigation at a firm in Dallas that predominantly represents clients who are integrally involved in the construction industry in Texas. Feel free to forward to me anything you believe would be of interest, and check in frequently to see what I'm thinking about. Welcome!