Monthly Archives: September 2017

Scheduling experts have a variety of methods available to them for analyzing delays, but all methods are not equally reliable or persuasive, a point well illustrated by the April, 2017 decision of the United States Court of Federal Claims in K-Con Building Systems, Inc. v. United States, 131 Fed.Cl. 275 (2017).  That decision provides a detailed analysis of the competing opinions of the parties’ scheduling experts, and the court found that the scheduling analysis method employed by the defendant was more persuasive.  The court stated: “The parties present diametrically opposed descriptions of the critical path of performance—plaintiff submits that the critical path of performance should be based on an as-planned, forward-looking schedule, and defendant contends that the critical path of performance should be based on an as-built, backward-looking schedule. The court agrees with defendant that the proper way to determine what activities were on the critical path of performance in this case is to examine what actually occurred during contract performance. There are two reasons for this conclusion. First, a critical path schedule that relies solely on the schedule set forth in the contract specifications does not account for any subsequent changes to the schedule authorized by the contracting agency…. Second, the use of a contractually based critical path schedule does not reflect that plaintiff did not actually perform in accordance with the schedule set forth in the contract specifications.”

On September 28, 2017, the Supreme Court of Pennsylvania, in Rancosky v. Washington National Insurance Company, held that in order to recover in a bad faith action against an insurer under 42 Pa.C.S. §8371, the plaintiff must “present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis.” Further, the Court held that proof of an insurance company’s motive of self-interest or ill-will is not a prerequisite to prevailing in a bad faith claim under Section 8371, observing that evidence of the insurer’s knowledge or recklessness as to its lack of a reasonable basis in denying policy benefits is sufficient.  

On September 23, 2017, OSHA will begin enforcement of the new respirable crystalline silica standard for construction (“new silica rule”). OSHA announced that during the first 30 days of enforcement of the new silica rule, it will consider good-faith efforts by employers in their attempt to comply with the new silica rule. OSHA will offer outreach and assistance to help ensure employers are fully and properly complying with the new requirements. The memorandum issued by OSHA on the subject can be found under the following link: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=31292

The Pittsburgh Post-Gazette reports that Pittsburgh International Airport will receive a $1.1 Billion facelift, ironically spurred by a downsizing of the airport facility. The consolidation of U.S. Airways, a major tenant at the airport, with American Airlines resulted in a substantial reduction in capacity at the airport over the last several years. A 600 person operation center at the airport was closed, as were other facilities. The plan recently unveiled is essentially a makeover for a terminal opened as a US Airways hub in 1992, but which now serves only ½ the traffic it once did. The project includes a new building for ticketing and security, a new parking garage and a streamlined boarding facility. Under the proposed modernization, the current landside building would be abandoned, the tram that hauls people from it to the X-shaped boarding facility, or airside, terminated, and the number of gates will be reduced to 51 from 75. Constructed in their place will be a $783.8 million landside building located between airside’s C and D concourses with new security and baggage facilities, a reconfigured international arrivals area, a 3,000-space parking garage, and other features designed focused on the needs of modern travelers. The Post-Gazette also reports that private developers have expressed interest in commercial development of vacant space at the airport for tenants interested in locating their businesses near the airport. The Federal Aviation Administration would likely have to approve any redevelopment of the vacant airport space. Andrew B. Cohn can be reached by email […]