ANAHEIM CALIFORNIA CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

How to Build a Water-Smart City

August 23, 2021 — Chris Malloy - Bloomberg
Cities across time have stretched to secure water. The Romans built aqueducts, the Mayans constructed underground storage chambers, and Hohokam farmers dug more than 500 miles of canals in what is now the U.S. Southwest. Today’s cities use portfolios of technologies to conserve supply — everything from 60-story dams and chemicals to centrifugal pumps and special toilets. And yet, the cities of tomorrow will have to do more. A recent United Nations report on drought says climate change is increasing the frequency, severity and duration of droughts, which contribute to food insecurity, poverty and inequality. The report also asserts that “drought has been the single longest-term physical trigger of political change in 5,000 years of recorded human history.” It calls for urgent action and a transformation in governance to manage modern drought risk more effectively. Read the full story...
Reprinted courtesy of Chris Malloy, Bloomberg

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Miller Act CLAIMS: Finding Protections and Preserving Your Rights

November 29, 2021 — Diana Lyn Curtis McGraw - ConsensusDocs
The Miller Act (the “Act”), which requires the prime contractor to furnish a performance bond and a payment bond to the government, protects “all persons supplying labor and materials carrying out the work provided for in the contract.”[1] Despite its broad language, courts have limited the parties who may actually assert a claim under the Act. This article introduces general background of the Act, identifies subcontractors who may qualify for protections under the Act, and suggests ways to preserve the rights as prime contractors. Brief Background of the Miller Act Under the Miller Act, there are two types of bonds the prime contractor furnishes to the government in a federal construction contract of more than $100,000[2] 1. Performance Bond A performance bond protects the United States and guarantees the completion of the project in accordance with the contract’s terms and conditions.[3] This bond must be with a surety that is satisfactory to the officer awarding the contract and in the amount the officer considers adequate for government protection.[4] If a contractor abandons a project or fails to perform, the bond itself will cover the government’s cost of substitute performance. Thus, the performance bond disincentivizes contractors from abandoning projects and provides the government with reassurance that an abandonment will not create delays or additional expenses. Read the full story...
Reprinted courtesy of Diana Lyn Curtis McGraw, Fox Rothschild LLP
Ms. McGraw may be contacted at dmcgraw@foxrothschild.com

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Does the Recording of a Mechanic’s Lien Memorandum by Itself Constitute Process? Read to Find Out

August 04, 2021 — Christopher G. Hill - Construction Law Musings
As a Virginia construction attorney representing those in the construction industry, mechanic’s liens are near and dear to my heart. The enforcement of mechanic’s lien rights in Virginia is a two-step process. The first step is the recording of a properly-timed memorandum of lien that includes all of the statutorily required information. The second step is a suit to enforce that memorandum of lien filed in Circuit Court. A recent case out of Norfolk, VA examined the first of these steps. In Central Radio Co. v. Warwick Builders, et al., and as Count III of a three-count Complaint, the Plaintiff, Central Radio Co., alleged that the Defendant, Warwick Builders, recorded a memorandum of lien that Warwick knew to be without merit and therefore committed an abuse of process. However, Warwick did not file any Circuit Court suit to enforce that lien. Central Radio Co. essentially alleged that the filing of the memorandum by itself constituted an attempt to extort payment and therefore was an abuse of process. Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Still Going, After All This Time: the Sacketts, EPA and the Clean Water Act

September 13, 2021 — Anthony B. Cavender - Gravel2Gavel
On August 16, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling that the Idaho property of Michael and Chantell Sackett was a regulated wetlands under the then-controlling 1977 EPA rules defining “waters of the United States,” and that the Sacketts dredging and filling of their property was subject to regulation by the U.S. Army Corps of Engineers or EPA. EPA’s case, as it has been for many years, was based on 2008 EPA and Corps inspection reports and Justice Kennedy’s “significant nexus” test as the controlling opinion in the 2006 Supreme Court case, Rapanos v. United States. The Sacketts’ argument was that the text of the Clean Water Act, as interpreted by Justice Scalia and three other Justices, was controlling, but for several years, the Ninth Circuit has relied on Justice Kennedy’s opinion in these CWA controversies. The court’s opinion expressed considerable sympathy for the Sacketts as they negotiated the thicket of EPA’s regulatory processes, but it could not disregard circuit precedent. A few years ago, the Supreme Court ruled, in a unanimous decision, that EPA’s then extant administrative compliance orders were arbitrary and capricious. (See Sackett v. US, 566 US 120 (2015).) After that decision, the case was remanded to the federal district court, where it lingered for several more years. Read the full story...
Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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2021 2Q Cost Report: Industry Execs Believe Recovery Is in Full Swing

August 04, 2021 — Jonathan Keller - Engineering News-Record
The first six months of 2021 have seen big materials cost hikes, increasing labor shortages and uncertainty over federal action on a major infrastructure package. Despite the headwinds, ENR’s Construction Industry Confidence Index has surged up 17 points to a rating of 68—the highest single jump between quarters since the index was started in 2009. The previous record was 16 points between Q4 of 2011 and Q1 of 2012. Reprinted courtesy of Jonathan Keller, Engineering News-Record Mr. Keller may be contacted at kellerj@enr.com Read the full story...

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Retrofitting Buildings Is the Unsexy Climate Fix the World Needs

November 19, 2021 — Marc Champion - Bloomberg
You may not have noticed unless you live in London, but protesters have been gluing their hands to the asphalt of the city’s thundering eight-lane M25 ring road, to the weirdly technocratic war cry of “Insulate Britain!” Frustrated commuters and the police officers who’ve had to peel these sticky activists from the road find them irritating. Yet they have a point. Among top producers of climate-harming emissions that world leaders plan to address at COP26 in Glasgow in November, buildings are the summit’s largely ignored Cinderella. Making homes and offices leak less heat and persuading the construction industry to give up its addiction to demolition and to energy-intensive materials such as concrete, plastics, and steel have so far proved less than appealing to governments in search of solutions to the climate challenge. Retrofitting is costly and disruptive for the voters who happen to live, in the U.K. alone, in the 28 million homes that need an upgrade. It also demands the systemic transformation of a fragmented industry that’s riddled with vested interests, says Stephen Good, chief executive of the Construction Scotland Innovation Centre along Glasgow’s southern underbelly. Read the full story...
Reprinted courtesy of Marc Champion, Bloomberg

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White House Reverses Trump Administration NEPA Cutbacks

October 24, 2021 — Mary B. Powers & Debra K. Rubin - Engineering News-Record
The Biden administration's Oct. 6 announcement that it will restore certain long-standing environmental reviews for infrastructure projects—rolled back by the Trump administration last year—won praise from environmental groups but has some in the construction sector wary of new project delays as a major federal funding push looms. Reprinted courtesy of Mary B. Powers, Engineering News-Record and Debra K. Rubin, Engineering News-Record Ms. Rubin may be contacted at rubind@enr.com Read the full story...

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NJ Supreme Court Declines to Review Decision that Exxon Has No Duty to Indemnify Insurers for Environmental Liability Under Prior Settlement Agreement

November 29, 2021 — Patricia B. Santelle & Laura Rossi - White and Williams
On November 1, 2021, in a single-sentence Order, the Supreme Court of New Jersey denied a request for review of a decision that ExxonMobil Corporation (Exxon) did not have to indemnify certain of its insurers over environmental liabilities as required by a previous settlement agreement. The case, entitled Home Insurance Company v. Cornell-Dubilier Electronics Incorporated, et al., has a unique and convoluted procedural history but, in short, the denial of review leaves standing a holding by the intermediate appellate court that the insurers’ “untimely notice actually prejudiced Exxon, violated the no-prejudice rule, and breached the covenant of good faith and fair dealing.” The court declined to consider the question framed by the insurers: whether the importance of enforcing settlement agreements outweighs New Jersey’s entire controversy doctrine. The matter dated back almost thirty years, when the New Jersey Department of Environmental Protection notified the Appearing London Market Insurers (ALMI) of the potential liability of Cornell-Dublier Electronics (CDE), a former indirect subsidiary of Exxon, for pollution at a site in New Jersey. Coverage litigation followed in New Jersey, which ALMI defended under policies issued to CDE. Exxon was not named in the CDE suit nor were the policies which ALMI issued to Exxon at issue in that case; Exxon instead had its own pollution coverage case pending in New York. In June 2000, Exxon and its insurers, including ALMI, entered into a settlement agreement which (a) required Exxon to indemnify the insurers for any environmental liability claims involving its subsidiaries, and (b) provided for application of New York substantive law and litigation in New York City court for any dispute between the parties under it. Reprinted courtesy of Patricia B. Santelle, White and Williams and Laura Rossi, White and Williams Ms. Santelle may be contacted at santellep@whiteandwilliams.com Ms. Rossi may be contacted at rossil@whiteandwilliams.com Read the full story...

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