News and Views

October 10, 2017

Risk Management 101: Tailor Your Construction Insurance Requirements to the Discipline so You Don’t Get Taken to the Cleaners

Source: https://www.lexology.com, October 3, 2017
By: James P. Bobotek, Pillsbury Winthrop Shaw Pittman LLP

In the world of construction, whether you’re a lender, owner, contractor or subcontractor, your success hinges largely on risk management. While there’s no substitute for sound business and construction practices (such as proper preconstruction planning, proven construction means and methods, use of experienced personnel, and stringent safety programs), among the most important project risk allocation tools are the contracts governing the various parties’ rights and obligations. Within those contracts, risk is primarily allocated through indemnity and insurance requirement provisions. When preparing insurance requirements for construction-related contracts, it is crucial to ensure these pieces are well-fitted and comfortable, like a good piece of tailoring. This requires the indemnity and risk obligations associated with each project discipline to be clearly identified and addressed.

Design professional contract requirements should include auto and commercial general liability, workers’ compensation/employer’s liability and, most importantly, professional liability coverages. Pay particular attention to the limits of the professional liability coverage; requiring excess limits for this coverage may be appropriate depending on the project’s size. Consider requiring that the coverage be “project specific,” either through a separate project policy or sublimits applicable only to the project. For large projects, a lender may consider requiring, or an owner may consider obtaining, owner’s protective professional insurance coverage, which indemnifies the owner directly for losses arising out of professional negligence of architects/engineers exceeding the limits available under the architects’/engineers’ own professional liability policies.…

October 9, 2017

A’s stadium: Environmental questions remain at Peralta site

Source: http://www.mercurynews.com, October 7, 2017
By: David Debolt

The Oakland A’s are moving forward on a dream to build a new stadium at Peralta Community College headquarters, but they may first have to clear an environmental hurdle that has hovered over the land for years.

A review of county records shows that since 2013, the community college district has failed to act on the Alameda County Department of Environmental Health’s calls to further study a historically toxic site on the proposed stadium land.

The years of failed responses even brought in the Alameda County District Attorney’s Office, which confirmed it has an investigation into the situation underneath East Eighth Street and Fifth Avenue, district headquarters.

The amount of hazardous materials in the ground is unclear, because the site hasn’t been tested since 2012, but the issue could become a bargaining chip during anticipated land negotiations between the A’s and the deficit-plagued, four-college district.

“Historically around the bay, we’ve found that when there is redevelopment proposed for a property, all parties get very interested in ensuring the site is cleaned up,” Bruce Wolfe, executive officer of the San Francisco Bay Regional Water Quality Control Board, said, speaking generally. “In many cases, it drives the cleanup.”…

October 9, 2017

Brick dry cleaner toxic cleanup will last until 2022

Source: http://www.app.com, October 6, 2017
By: Amanda Oglesby

A cleanup is underway to remove toxic chemicals that have leached into the soil and water around a commercial plaza that was once home to a dry cleaner.

Cumberland Farms Inc., which owns Country Farms plaza at Drum Point and Adamston roads, said environmental remediation efforts have started and will continue until 2022 at the site, where  a former dry cleaning business  rented a storefront between 1987 and 2008.

“Before it closed, the dry cleaner business was dumping in the rear of the property,” Mayor John G. Ducey said in an email. See the video above for views of the scene.

Drum Point Dry Cleaners is the business connected to the contamination, said a Cumberland Farms official. Its principals could not be reached for comment.

Ducey said he has not been advised of any threats to personal or municipal wells.…

October 9, 2017

Residents sue Arkema over contamination

Source: https://www.chemistryworld.com, October 7, 2017
By: Rebecca Trager

French chemical giant accused of releasing toxic chemicals from US plant in the wake of hurricane Harvey

Local residents near Arkema’s plant in Crosby, US, have joined together to file a combined contamination lawsuit against the French chemical company, after several containers of organic peroxides ruptured and caught fire following flooding from hurricane Harvey.

Lawyers representing individuals who live within seven miles of the facility claim that numerous toxic substances – including volatile organic compounds, polycyclic aromatic compounds (PAHs), dioxins, furans, heavy metals and cyanide – have been found in soil, surface water and ash samples taken from the area.

October 9, 2017

Architect, builder — not taxpayers — should pay $21M-plus stadium-repair bill: IGF owner

Source: https://www.winnipegfreepress.com, April 23, 2017
By: Jeff Hamilton

Triple B Stadium Inc., the company that owns and manages Investors Group Field, says it doesn’t believe taxpayers should be footing the bill for ongoing repairs at the stadium, which have now hit $21.4 million.

Those costs, said Triple B chairman Andrew Konowalchuk, should be the responsibility of the architect and contractor, a belief reflected in Triple B’s lawsuit against the two parties (builder Stuart Olson and architect Ray Wan) that is still open in the courts.

“As that lawsuit is ongoing, Triple B will limit its public comments on the issues that are before the court,” Konowalchuk said in an email Thursday. “We are confident that those issues will be resolved appropriately through an open and transparent judicial process.”

Konowalchuk was responding to a Free Press request for an update on ongoing repairs at IGF, and information on current and projected costs of the work. The Free Press reported the details of a public tender — dated last July — for extensive work to be done, much of which Konowalchuk has confirmed.…

October 9, 2017

Investors Group Field repairs will take 2 more years to complete

Source: http://www.cbc.ca, April 13, 2017
By: Bartley Kives

This spring’s work on Winnipeg stadium deficiencies to wrap up in May; new rapid-transit station opens in July

Repairs to the faulty concrete and drainage at Winnipeg’s Investors Group Field will take two more years to complete, but the stadium’s owner is promising there will be no conflicts with events at the four-year-old football stadium.

Construction crews working on deficiencies at the 33,500-seat stadium will wrap up their latest round of repairs in May, the non-profit entity Triple B Stadium said in a statement Thursday.

The home of the Winnipeg Blue Bombers has been plagued with concrete, drainage and other issues since it opened in May 2013. The problems spawned a lawsuit between Triple B Stadium — which represents the city, province, University of Manitoba and Winnipeg Football Club — and both stadium contractor Stuart Olson and architect Ray Wan.

It also led the province to guarantee $35 million worth of loans to begin repairs. To date, $21.4 million has been spent on this work, Triple B Stadium chair Andrew Konowalchuk said in a statement.…

October 9, 2017

Ohio EPA Is Requesting Property Owners Take Action at TCE Sites

Source: https://www.lexology.com, September 29, 2017
By: W. Caffey Norman, Kendra S. Sherman, Allen A. Kacenjar Jr. and Karen A. Winters, Squire Patton Boggs

According to Ohio EPA staff, the agency soon will be sending letters to hundreds of sites throughout the state requesting that property owners take action to evaluate known trichloroethylene (TCE) contamination.

For more than a year, the Ohio Environmental Protection Agency (EPA) has been reviewing records and investigating sites that may be contaminated with TCE. Now, Ohio EPA intends to request that property owners take further action. In a recent meeting with environmental consultants, Ohio EPA announced its intention to send letters informing property owners that “TCE may be a health concern at their property.” In these letters, Ohio EPA plans to ask property owners to “evaluate health risks both on and off their property” and notify Ohio EPA of the property owners’ “plan of action and results” regarding TCE. Ohio EPA has not yet shared the letters with the public, but noted that the letters will be sent “in the coming weeks.” Sites targeted by Ohio EPA include some that have satisfied all of Ohio EPA’s Voluntary Action Program (VAP) no further action criteria. This is significant for site owners and interested parties who believed all environmental issues on their properties have been addressed.…

October 9, 2017

Wisconsin appellate court denies insurance coverage to a contractor because work was performed on a building that had synthetic stucco.

Source: https://www.natlawreview.com, September 30, 2017

A slew of lawsuits has plagued the construction industry regarding the use of exterior insulation and finish systems, also known as EIFS or synthetic stucco. Insurance companies were historically required to pay money towards those claims under standard commercial general liability policies. As they did in response to lawsuits involving asbestos and environmental contamination, insurance companies reacted by changing their policy language to limit or eliminate their liability for synthetic stucco claims.

The Wisconsin Court of Appeals, in Kaitlin Woods Condominium Association v. Nautilus Insurance Company, enforced a broad reading of the synthetic stucco exclusion in favor of the insurance company, and against a general contractor that developed multiple condominiums. In that case, the owner of the condos claimed that the general contractor’s poor management of the construction and subcontractor’s defective work resulted in water leakage through the exteriors of condo buildings, causing property damage. An endorsement to the insurance policy excluded coverage for claims of defective work on any part of the exterior of a building on which synthetic stucco had been applied.…

October 9, 2017

Insurance Coverage – Analysis of Professional Liability Exclusion

Source: http://www.jdsupra.com, September 28, 2017

Energy Insurance Mutual Limited v. ACE American Insurance Company

Court of Appeal, First District (July 11, 2017)

This case involves an insurance coverage dispute arising from an explosion that occurred when an excavator struck an unmarked petroleum pipeline.

Kinder Morgan, Inc. owns and operates oil and gas pipelines. Comforce Corporation is a staffing company that supplied two temporary employees to work as construction inspectors for Kinder Morgan. Kinder Morgan selected and trained the inspectors.

On November 9, 2004, an excavator punctured a high-pressured petroleum line owned by Kinder Morgan. An explosion occurred and killed five individuals and injured four others. Cal/OSHA conducted an investigation and concluded the primary cause of the accident was a failure to properly mark the petroleum pipeline. Cal/OSHA issued two “serious willful” citations to Kinder Morgan due to its employee’s failure to mark the location of the pipeline prior to excavation. Numerous wrongful death and personal injury lawsuits were filed against Kinder Morgan and Comforce, alleging that the explosion was caused by the parties’ negligence in failing to mark the location of the Kinder Morgan pipeline, and failing to properly supervise contractors.…

October 3, 2017

Contractors Should Understand the Different Types of Insurances Available in Construction Contracting

Source: http://www.forconstructionpros.com, October 2, 2017
By: David Cook

Insurance is one of the most overlooked yet consequential aspects of construction contracting. Almost every contract involving construction imposes obligations on the parties to obtain insurance, but many do not take the time to understand what they are.

Insurance is perhaps one of the most overlooked yet consequential aspects of construction contracting. Almost every contract involving construction imposes obligations on the parties to obtain insurance, but many do not take the time to understand what they are required to procure  Because insurance is based on the agreement between the insurer and insured, the policy is usually the first place to start. The insurance policies discussed below are based on typical form policy provisions, but contractors and insured should check their specific policy to determine the extent of coverages and exclusions.