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December 2017

Construction Law Update

Fourth Quarter 2017

Gordon & Rees's Construction Group is pleased to publish the latest issue of our Construction Law Update, a quarterly take on trends of interest to design professionals, contractors, and developers throughout the country.

INSIDE THIS ISSUE
  1. Language in Websites Can Inadvertently Create Legal Exposure for Design Professionals

  2. When is the Statute of Limitations Period Triggered for a Construction Defect Claim in New Jersey?

  3. Gordon & Rees Construction Attorneys Making Headlines

  4. Gordon & Rees Construction Law Blog

  5. About Gordon & Rees's Construction Group

I. Language in Websites Can Inadvertently Create Legal Exposure for Design Professionals
     
  By Jay S. Gregory
   

Personal injury plaintiff’s counsel can be crafty if not down-right devious. When a worker dies or sustains a serious injury on a construction site, lawyers who specialize in plaintiff’s personal injury work often swoop in and sue all of the project participants regardless of the participant’s involvement in or responsibility for the accident. These lawyers try to spread as wide a net as possible in order to capture the largest pool of potential contributors. They follow the maxim “shoot first, aim later.” The primary targets in construction accident law suits are usually the general contractor or construction manager – the party who by contract is typically responsible for maintaining site safety. In addition to suing GC’s or CM’s contractually responsible for safety, however, personal injury plaintiff’s counsel do not hesitate to sue design professionals who according to their contracts have no responsibility for safety issues. As most design professionals are aware Standard Form Agreements such as iterations of the AIA Owner/Architect Agreements include unambiguous provisions exempting architects from responsibility for safety. For example, article 3.6.2.2 in the AIA B101 (2007 edition) provides in part:

“The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the Architect be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents.” (Emphasis supplied)

To read a full, expanded version of this article, click here.

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II. When is the Statute of Limitations Period Triggered for a Construction Defect Claim in New Jersey?
     
  By Lee Henig-Elona
   

After conflicting conclusions by the lower courts, the New Jersey Supreme Court recently decided whether a condo association’s lawsuits for construction defects were timely filed against a general contractor and three of its subcontractors. The trial court and appellate division came to opposite conclusions by using different commencement dates for the 6-year statute of limitations at N.J.S.A. 2A:14-1.

Construction of the building was complete in May 2002 and the owner rented units for two years. In June 2004, the owner sold the building to a developer who converted the building from a rental to condo ownership. As part of the conversion, the developer retained an engineer to inspect the common areas. In October 2004, the inspector found that the structure of the building, townhomes and parking deck appeared to be in good condition with “some spalling of concrete” and “some sporadic cracking of the concrete” in the parking deck. The report was in the condo public offering statement and master deed. Once 75% of the units were sold in July 2006, the developer transferred control of the building to the condo association. The association then retained an engineer to perform an inspection in June 2007. Numerous construction defects were found including in exterior walls, roofing, concrete flooring, plumbing, landscaping and the parking garage.

To read a full, expanded version of this article, click here.

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III. Gordon & Rees Construction Attorneys Making Headlines

Charleston Team Defeats Decade-Long Attempt at Class Arbitration, Secures Third Consecutive Appellate Win
On October 13, 2017, the U.S. Court of Appeals for the Fourth Circuit ruled that the arbitration agreement between home purchasers and a national homebuilder does not permit the class arbitration. This decision is the culmination of nearly 10 years of litigation in which the purchasers attempted to bring a class action in arbitration on behalf of more than 2,000 purchasers. Gordon Rees Scully Mansukhani Charleston partner A. Victor Rawl, Jr. was lead counsel for the firm's client, Del Webb and Pulte, and Charleston Partner Henry W. Frampton, IV worked extensively on appellate issues in the case. Read More

Las Vegas Construction Team obtains Complete Dismissal with Prejudice of Multi Million Dollar Construction Defect Claim against Developer/General Contractor Client
The case was filed in the Eighth Judicial District, Clark County, Nevada (Las Vegas) and involved alleged construction defects related to an 11,255 square foot custom home located in the ultra-exclusive McDonald Highlands golf course community. The plaintiff is a well known attorney who frequently represents contractors and subcontractors in Nevada, California and Arizona. Gordon Rees Scully Mansukhani Las Vegas Managing Partner Robert Schumacher and Senior Counsel Brian Walters represented Lands West Builders, Inc. (“Lands West”). Lands West was one of two developers/general contractors responsible for building the home. Read More
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Chicago partner Tom Cronin co-presented a webinar in conjunction with The Hanover Insurance Group on November 28, 2017, on the topic of Construction Project and Copyright Liability Exposures for Design Professionals.

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IV. Gordon & Rees Construction Law Blog

The Gordon & Rees Construction Law Blog continues to post new content addressing topical issues affecting the construction industry throughout the country. From analysis of new court decisions, discussions of timely legislation, and commentary on real-world, project-specific issues, Gordon & Rees’s Construction Law Blog provides insight on the issues that affect the construction industry now.

We invite you to visit the blog at www.grconstructionlawblog.com and see for yourself what we are up to. If you like what you see, do not hesitate to subscribe under the “Stay Connected” tab on the right side of the blog. There you can choose how you would like to be informed of new content (Twitter, LinkedIn, email, etc.). If you have any questions about the blog or would like to discuss further any of its content, please do not hesitate to contact us.

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V. About Gordon & Rees's Construction Group

Gordon & Rees's Construction Group consists of more than 100 lawyers in 47 offices throughout the nation. The firm continues to expand, opening nine new offices in 2017 which include Cincinnati, Cleveland, Lincoln, Milwaukee, Oklahoma City, Omaha, Providence, Salt Lake City, and Wilmington.

Gordon & Rees’s construction attorneys focus their practice on the comprehensive range of legal service required by all participants in the construction industry – architects, engineers, design professionals, design joint ventures, owners, developers, property managers, general contractors, subcontractors, material suppliers, product manufacturers, lenders, investors, state agencies, municipalities, and other affiliated consultants and service providers.

We serve clients who design, develop, or build all types of structures, including commercial buildings, single and multifamily residential projects, industrial facilities, universities, hospitals, museums, observatories, amusement parks, hotels, shopping centers, high-rise urban complexes, jails, airports, bridges, dams, and power plants. We also have been involved in projects for tunnels, freeways, light rail, railway stations, marinas, telecom systems, and earth-retention systems. Our experience includes private, public, and P3 construction projects.

If you have questions about this issue of the Construction Law Update or our nationwide construction practice, click here to visit our practice group page or contact partner Tom Cronin.

Thomas G. Cronin
Gordon & Rees, LLP
1 North Franklin
Suite 800
Chicago, IL 60606
(312) 980-6770
tcronin@gordonrees.com

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