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Posts from November 2009.
November 30, 2009
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Topics Litigation

Here is a sampling of cases to watch for in 2010. The Virginia Supreme Court has granted appeals for these cases earlier this year, and will hear argument in 2010.

In May, the Court granted the appeal in W &W Partnership v. Prince William County BZA, et al., Record No. 090328, challenging the ruling of Judge Whisenant from the Prince William County Circuit Court. At issue in this case is whether a deed legally subdivided a parent tract of land, creating a separate lot and entitling the lot to its own GPIN and address. The Court will likely set the argument for this case in early 2010.

Broken ChainThe economic loss rule defines that most basic of questions: who can sue whom and for what claims.  Virginia still sticks to an extremely Conservative judicial model and this philosophical thread is readily apparent in cases dealing with this question.  The Virginia economic loss rule provides that in order to sue a party for "economic losses", the plaintiff generally needs to have a contract with the defendant.

The first trial in the infamous Chinese drywall litigation will apparently involve seven Virginia homeowners.  The first case is currently set for a bench trial on January 25, 2010. 

We have written several times regarding the Chinese drywall litigation, including several months ago in Mid Atlantic Construction.  While Virginia plaintiffs will apparently occupy the first position on the trial docket, our area in Northern Virginia has thus far been very quiet to silent on this front.  The Tidewater area has been a little different as a supplier there sold a fairly significant quantity of the drywall that was used locally.

Katrina flooding St. Bernard ParishAfter a 19 day bench trial, on Wednesday evening a federal judge ruled in favor of six plaintiffs seeking compensation against the United States under the Federal Tort Claims Act for damages flowing from Hurricane Katrina.  The court ruled that the United States was liable because the flooding leading to the homeowners' damages was caused by negligent maintenance of a significant navigation channel by the US Army Corps of Engineers.  The total verdict was for under $750,000 for the six plaintiffs; however, the result exposes the United States to liability claims for many other claimants who resided in the Lower Ninth Ward of New Orleans and St. Bernard Parish.

Earlier this year, the Virginia Supreme Court decided Martin Brothers Contractors, Inc. v. Virginia Military Institute, taking the opportunity to revisit its decision in Blake Construction.

The Virginia Military Institute (“VMI”) contracted with Martin Brothers to renovate VMI’s main dining facility. During the project, VMI requested changes resulting in a 270-day delay. VMI agreed that it alone was responsible for the delay. Martin Brothers sought $430,242.56 in delay damages plus the costs of recovery.

DC Metro SmithsonianThe Washington Post reported on Sunday that the Obama administration will propose taking over safety regulation of subways and light rail, including the regional Metro system.  Metro has been taking a regular beating in the press recently for safety concerns and its anemic response to those concerns.  Metro has apparently gone so far to frustrate efforts to investigate its safety procedures and efforts that it has barred independent monitors from walking along its subway tracks, even escorted by Metro employees, to observe its procedures in practice

November 13, 2009
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Topics Green

Mark TwainThere are three kinds of lies: lies, damned lies, and statistics.

Mark Twain, paraphrasing Benjamin Disraeli

We have a new and very interesting recent report on green building to examine, the Regional Green Building Case Study Project: A post-occupancy study of LEED projects in Illinois. The Illinois report studied a mix of projects of various certifications levels, certified under various versions of LEED, with various applications, that used various baselines, and that used various reporting methods for utilities. The small sample and disparate projects involved lends itself towards a scattershot of data.

Astronomical ClockMediation is often touted as a time and cost-saving method of dispute resolution in construction matters.  It is not without its critics.  Don Short recently posted a discussion,  "Why Bother with Mediation?".  Mr. Short's basic postion: "... mediation of a construction dispute is just an impediment to getting the matter resolved in a timely and cost efficient manner."  Mr. Short followed up in his piece "When Not to Use Mediation?" amplifying on the theme that time was money and that mediation clauses permitted a recalcitrant party to string the process out.

Dipping toes in the waterToday we tip our toe, quite gingerly we might add, into the ugly place where preliminary statistics and politics meet. In the last week, print news and the internet have been awash with reports on stimulus spending today and estimates of the impact that spending has had a jobs created or saved. In particular, Chris Thorman and Don Fornes of Construction Software Advice have culled through the quarterly reports which are publicly available at www.recovery.gov and provided a detailed state-by-state breakdown of construction stimulus spending amounts awarded, amounts "received", jobs created and the cost per job (this article was also posted to ENR's blog and both have separate comments).

As announced previously, we were very happy to participate in a recent seminar on government contracting in connection with the Associated Builders and Contractors - Metro Washington Chapter.  The seminar, which took place last week, was a great success with a room that was filled to capacity, some great speakers and information, and very enjoyable and educational experience for me as a participant and speaker.  The response is certainly indicative of the interest in government contracting topics right now.

For those interested, here is a copy of our presentation materials which addressed different contract vehicles and bidding methods, common procurement issues, and the process of bid protests in particular.

In the recent case of Martin Brothers Construction, Inc. v. Virginia Military Institute [pdf], the Virginia Supreme Court was confronted with whether Martin Brothers was able to claim delay costs, re-examining its 2003 opinion, Blake Construction Company, Inc./Poole & Kent v. Upper Occoquan Sewage Authority [pdf]. This post will review the Blake Construction opinion, and set the stage for the next blog post on Martin Brothers.

November 2, 2009
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Topics Green
Tags Green LEED

A post this weekend by our friend Andrea Goldman raises the interesting question of “why bother with LEED certification”? The post highlights a recent profile on the highly sustainable Hutton Hotel project in Nashville which elected to forego seeking LEED registration and certification. In particular, Hutton Hotel representatives are quoted as saying:

Doing the government documents alone cost $50,000. Also, the paperwork is so complicated you have to hire an expert to do it. They make the certification a little onerous so everyone won’t pile on. You also need engineers that do testing. It’s a whole process.