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< PreviousWINTER 2024 | 11 I n recent years, the U.S. housing supply shortage has dramatically wors- ened—from a deficit of 2.5 million units in 2018 to a deficit of nearly twice that number, 4.5 million units, in 2022, according to a “Perspectives” piece by Freddie Mac’s Chief Economist Sam Khater. The shortfall was created, in part, by supply chain interruptions during the COVID-19 pandemic, lack of skilled labor, and substantial reduction in the building of entry-level homes. While such challenges have been burden- some, they have also been the source of ingenuity in efforts to address the U.S. housing shortage. Forward-thinking construction companies have pumped resources into developing cutting-edge 3D printing technologies, turning small-scale 3D printing into large-scale construction in the residential and commercial marketplace. The emergence of 3D printing construction is being touted as faster, more sustainable, and a less expensive means of building than traditional “sticks and bricks.” 3D printing industry proponents have stepped up, pushing the boundaries of what is possible in both residential and commercial construc- tion by using creativity and technological advancements. No longer is 3D printing construction a vision of the future; it is a reality, with a near-complete 100-single-family residential subdivision in Texas, and a 2026 completion date for the first 3D printed hotel in the U.S. 3D Construction Process Although materials and tools have become more sophisticated over time, basic means and methods of building a traditional single-family “stick and brick” residence are largely the same as 100 years ago. On average, tradi- tional building methods include at least six layers of material: wood or metal structural framing; insulation; exterior sheathing, such as plywood or OSB; weather-resistant barrier; exterior siding; and interior drywall. Instead of constructing six different layers of material, 3D construction “prints” a structure’s walls from a computerized three-dimensional model by successively stacking thin layers of a single proprietary cement-based mate- rial, which is heated during a thermal extraction process, squeezed through a nozzle, and then solidified by a concrete dryer before the process repeats to render its digital design (as described in ISO/ASTM 52939:2023, Additive manufacturing for construction — Qualification principles — Structural and infrastructure elements). Once the structure’s walls are printed, traditional construction techniques still come into play to install the roof, plumbing, electrical, HVAC systems, windows, doors, appliances, and finishes. A New Alternative in Residential and Commercial Construction By Cynthia Tarle and Phyllis Modlin Is Construction 3D Revolution? Set for a12 | CONSTRUCTION CLAIMS TheCLM.org/Magazine To accomplish this new age construc- tion, builders rely on the advancement of two primary 3D printing machines: a gantry-style printer and a robotic arm printer. Both 3D printing models are limited due to lot size and maximum printable area, which has resulted in 3D construction primarily focusing its efforts on building single-story structures. Some companies are working to create new machinery capable of printing two-story buildings, which, if successful, will open the door even wider for the utilization of 3D printing. Scalability In the U.S., on average it takes 7.6 months and between 11 to 30 subcon- tractors to build a traditional wood framed single-family residence, accord- ing to industry surveys. 3D printing technologies significantly reduce both the time and labor required. The entire exterior envelope and interior wall struc- ture of a 1,900-square-foot structure can be printed in just 48 hours, spread over eight days, according to 3D homebuilder SQ4D. During that time, only two to four workers are needed on-site to moni- tor the machines and feed in materials, potentially reducing labor costs by as much as 80%, according to ZDNet, cit- ing All3DP figures. Because 3D printing is achieved by stacking layers of the same material on top of one another to create both the structure and weather barrier system, precision is critical. Builders cannot sim- ply go to their local construction supply store and pick up a bag of concrete and print. Rather, 3D printing materials are proprietarily made, often on-site, requir- ing skilled workers to monitor and adjust the material mixture to accommodate environmental conditions. The material must be fluid enough to extrude through the printing nozzle but strong enough to hold shape. Materials require enough time to cure between layers, but not too long where the cement- based product dries out, preventing the layers from properly adhering. Higher temperatures can cure the material faster, but may limit its strength, while lower temperatures mean slower curing. Areas of the U.S. with comparatively stable daily temperatures, such as Texas and Florida, have had more success with curing and strength testing. With technology and standard practices rapidly evolving, builders jump- ing into the 3D printing construction industry are creating internal training programs for employees to learn how to monitor the 3D printers and produce printing material mixtures. Increased efforts to standardize materials and meth- ods while working to evolve building codes specific to 3D printing construction will play a key role in the ongoing expan- sion of this technology. Sustainability Energy efficiency offered by 3D print- ing has also ignited the construction industry’s efforts to reduce carbon emissions, further spurring consumer interest. Builders aiming to minimize their carbon footprint are pushing to develop their own ranges of 3D low- carbon mortar materials through the use of additional binding agents or rein- forcements like graphene, as described in a recent Construction Dive brief. Localization of the 3D printing process has also resulted in lower transportation costs and emissions, according to SQ4D. A recent case study, performed by MIT Concrete Sustainability Hub, estimates that 3D printing has the potential to reduce carbon emissions in construction by 2% to 9% over the life of a structure. Builders are also tackling the environ- mental challenge of water usage required to print with a cement-based material by recognizing that states like Nevada impose strict water conservation regulations requir- ing specialized concrete mixes designed for low-water content. With the ability to adjust 3D printable mortars, builders are working to conform to these requirements while still meeting the necessary strength and extrud- ability metrics needed to print. Additional benefits of 3D printing are also being touted, such as higher fire rat- ings than wood-framed structures, which could potentially encourage insurers to offer coverage in areas impacted by fire losses. Such structures are also far less like- ly to experience mold or termite issues. If that was not enough, efficiency of time and low-labor requirements are encouraging 3D printing construction to be considered as an effective way to provide shelter in disaster-stricken areas, as noted by Print- erra, a Canadian construction company specializing in 3D concrete printing. Construction Costs When budgeting a construction project, the two most expensive line items are labor, estimated at averaging 40% of the overall cost; and materials, estimated at between 40-50%. 3D printing reduces the labor hours needed and minimizes material expenses, resulting in overall cost savings. Material losses due to dam- age or theft account for 10% of the mate- rials budget in traditional construction. With 3D printing, a computer program maps out the progression of construc- tion and calculates the exact amount of material needed, reducing up to 95% of material waste and saving, on aver- age, an estimated $10,000 per project, according to All3DP. 3D printing also replaces the volume of materials needed such as lumber, weatherproofing, siding, and drywall, minimizing or potentially eliminating delays or budget overages due to supply chain issues and rising lumber prices. Other Considerations As with any new technology, the emer- gence of 3D construction also brings new legal and regulatory questions that must be answered. In 2021, the Interna- tional Code Council introduced Appen- dix AW to the International Residential Code to implement new standards for the design, construction, and inspec- tion of 3D printed construction. This appendix also incorporates Underwriters Laboratories’ UL 3401 standards, which provide additional guidance on require- ments for mechanical strength, fire Is Construction Set for a 3D Revolution? WINTER 2024 | 13 resistance, non-combustibility, thermal insulation, sound insulation, and indoor air quality. However, the implementa- tion and application of these standards are sure to create disputes when the construction is called in question. Construction contracts are also evolv- ing to address 3D printing issues, such as how often the concrete material should be tested to ensure appropriate strength and structural integrity, or how the impact of delays in construction will be addressed due to any equipment failures. Should litigation arise, experts with 3D printing qualifications will be critical. In cases where the print itself may be at issue, the primary cause or con- tributing factors related to potential defects may be challenging to evaluate, as well as any remediation and repairs. 3D Printing in the Real World In late 2022, Lennar, a prominent U.S. homebuilder, announced that it was partnering with ICON, an Austin, Texas-based 3D construction company, to construct a housing development comprised of 100 3D printed homes in the master-planned community of Wolf Ranch by Hillwood Communities, in Georgetown, Texas. Houses in the Wolf Ranch development range from 1,574 to 2,112 square feet. Construction of the Wolf Ranch project began in early 2023 and is almost complete, making it the first 3D printed mass subdivision of its kind in the U.S. On Sept. 12, 2024, ICON also an- nounced its intention to construct the world’s first 3D printed hotel and resi- dences at El Cosmica, a 21-acre nomadic hotel and campground in Marfa, Texas. Designed to fit into the desert landscape, 3D printing allows for soft shapes and curved surfaces that are difficult and costly to create using traditional build- ing techniques. This ground-breaking hotel will feature guest accommodations, a pool, bathhouse, restaurant, and even private residences and is expected to be completed in 2026. The commercial sector also has an eye on utilizing 3D printing to add on to big-box-store floorplans or warehouses. In September 2024, 3D construction company Alquist 3D completed construc- tion on an 8,000-square-foot addition to a Walmart store in Athens, Tennessee. The addition is one of the largest free-standing 3D printed commercial concrete struc- tures in the U.S. With housing and labor shortages on the rise and growing material costs due to supply chain interruptions, faster and more cost-effective means of construc- tion are needed. As companies race to set new standards for construction in the U.S. and across the globe, the evolution of new technologies like 3D construc- tion are already creating opportunities to address these issues. Whether home buy- ers fully embrace the strikingly futuristic look of 3D printed homes remains to be seen. However, with the appeal of lower construction costs, energy efficiency, and decreased construction time, 3D printed homes are an exciting and innovative new alternative in residential and com- mercial construction. K The authors offer a special thank you for the contributions of Nicole Johnson, partner in Tarle Law’s Dallas office. Cynthia Tarle is the founder and managing partner of Tarle Law, P.C. with offices in Texas and California. cptarle@tarlelaw.com Phyllis Modlin is director and senior counsel, specialty international claims – casualty at Markel. phyllis.modlin@markel.com Is Construction Set for a 3D Revolution? The entire exterior envelope and interior wall structure of a 1,900 square-foot structure can be printed in just 48 hours, spread over eight days.14 | CONSTRUCTION CLAIMS TheCLM.org/Magazine The California Courts of Appeal recently reversed a summary judgment ruling in favor of a geotech- nical engineering firm that had conducted a brief inspection of a residential construction project’s footing trench for $360. The case, Lynch v. Peter & Associates, Engineers, Geologists, Surveyors, Inc., arose when homeowner Cheryl Lynch experienced significant property damage after her home’s foun- dation failed and the structure began subsiding into a slope. Lynch sued Peter & Associates for profes- sional negligence and nuisance, despite having no direct contractual relationship with the firm, which had been hired by her contractor to perform the geotechnical inspection. The court distinguished this case from Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, which had limited auditors’ professional duty to third parties, noting that Bily dealt with purely economic damages, whereas Lynch involved physical property damage, making Bily’s policy concerns about State-By-State CALIFORNIA CONSTRUCTION PROFESSIONALS COULD FACE MORE LIABILITY EXPOSURE FOLLOWING APPELLATE RULING Case Could Have Significant Implications for Professional Negligence Cases By Jamison Rayfield and Brian Slome Jamison Rayfield Brian SlomeWINTER 2024 | 15 unlimited liability inapplicable. The court emphasized that construction profes- sional negligence cases, particularly those involving residential property damage, warrant a different analysis than cases involving economic loss. The court’s analysis centered on whether Peter & Associates owed Lynch a duty of care despite the lack of contractual privity, and concluded that it did. The court reasoned that whether a duty of care is owed to third parties still requires a traditional duty-of-care analysis using the factors established in Biakanja v. Irving (1958) 49 Cal.2d 647, which include: • The extent the transaction was in- tended to affect the plaintiff. • Foreseeability of harm. • Degree of certainty of injury. • Connection between conduct and injury. • Moral blame. • Policy of preventing future harm. Applying these factors, the court found all six Biakanja factors supported finding a duty of care in this specific case, particularly given the residential context and the direct connection between the firm’s work and the resulting damage. Why This Case Matters This ruling has significant implications for professional negligence cases in Califor- nia, particularly in residential construc- tion. While each case must be analyzed on its specific facts using the Biakanja factors, this decision strongly suggests courts will be more inclined to find duties of care owed by construction profes- sionals to property owners in residential contexts, even without direct contractual relationships. We would expect this ruling to expand the pool of potential plaintiffs who can sue, and accordingly increase li- ability exposures for professional servicers in the residential construction realm. K Jamison Rayfield and Brian Slome are partners with Lewis Brisbois. jamison. rayfield@lewisbrisbois.com; brian.slome@lewisbrisbois.com State-By-State CALIFORNIA Lynch sued Peter & Associates for professional negligence and nuisance, despite having no direct contractual relationship with the firm.16 | CONSTRUCTION CLAIMS TheCLM.org/Magazine In the noteworthy case of Bonilla v. Verges Rome Architects, 382 So. 3d 62 (La. 2024), the Supreme Court of Louisiana addressed a key issue surround- ing the limits of an architect’s and contract admin- istrator’s contractual obligations in construction projects. The case stemmed from a serious injury sustained by a subcontractor’s employee during a demolition project. The plaintiff filed a negligence claim against Verges Rome Architects (VRA), the architect and project’s contract administrator, al- leging that VRA owed a duty to ensure workplace safety. The Louisiana Supreme Court, however, determined that no such duty existed under the terms of the construction contract or Louisiana law regarding the interpretation of contracts. Relevant Facts The city of New Orleans entered into a contract with Tuna Construction, LLC as the general con- tractor for the complete renovation of the Allie Mae Williams Multi-Service Center. The city also ex- ecuted a professional service agreement with VRA as a project consultant for “professional design and contract administration services.” The contract in- cluded attachments referred to as “Contract Docu- ments” that included the city’s general conditions of the construction contract. Tuna subcontracted with Meza Services, LLC to complete the demolition, and VRA retained Morphy Makofsky, Inc. (MMI) as the engineering consultant. During demolition, Meza employee Gustavo Bonilla fell from the ceiling of a vault structure that collapsed, causing severe injuries to his back and neck. Bonilla filed suit against VRA and MMI alleging negligence for the preparation and approval of the design plans and specifications, failure to design and/or require support for the area being demolished, and failure to monitor and supervise the execution of the plans to ensure safety at the job site. VRA filed a motion for summary judgment asserting that, under the relevant contractual provi- sions, it did not owe a duty to supervise or main- tain the site or to ensure Bonilla’s safety. The trial State-By-State LOUISIANA DEFINING THE LIMITS State Supreme Court Affirms No Duty of Architect to Subcontractor’s Employee By Lori D. Barker and Dashia D. Myles Lori D. Barker Dashia D. MylesWINTER 2024 | 17 court granted VRA’s motion for summary judgment. However, the Louisiana Fourth Circuit Court of Appeal reversed the trial court’s ruling, finding that VRA owed a duty to Bonilla based on contractual provisions that required VRA to conduct site visits and report deviations from the contract. Specifically, the appellate court concluded that record evidence estab- lished genuine issues of material fact as to whether VRA was aware that the vault was demolished in an unsafe manner and that deviations from contract provisions and specifications occurred. The issue before the court was whether VRA was entitled to summary judgment based upon the general conditions and the design agreement, i.e., whether the terms of the construction contract imposed a duty on the architect to ensure the safety of a subcontractor’s employees. Generally, an engineer’s or architect’s duty to a contractor’s employee is based on the specific terms of their contract. [See Yocum v. City of Minden, 26,424, pp. 3-4 (La.App. 2 Cir. 1/25/95), 649 So.2d 129, 132]. Contracts carry the force of law for the parties involved, and their interpretation focuses on identifying the mutual intent of the parties. If the con- tract’s language is clear and reasonable, no further interpretation is needed. Each part of the contract should be read in the context of the entire agreement to give meaning to all provisions. When a contract clause is unambigu- ous, its literal meaning must be respected, and courts should not reinterpret it to fit presumed intentions. Courts cannot change the terms of a contract under the guise of interpretation or invent ambigu- ity where none exists. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. (See La. C.C. art. 2046). Applying the Four Corners of the Contract to the Case Bonilla argued that Section F-5 of the design agreement obligated VRA to oversee and report any deviations from design specifications, ensuring work- place safety. Alternatively, he claimed VRA, as the architect, had an extra- contractual duty to exercise reasonable care in preventing injury to foreseeable third parties due to design deviations or inadequate supervision. VRA countered that neither the design agreement nor the general conditions impose a duty to Bonilla regarding the demolition’s means, methods, or safety. VRA further contended that Section F-5 simply required site visits to ensure the city receives the building as specified, not to manage construction safety. Section F-5 states: “[Architect] will make site visits to the site as required (with a minimum of one per week) to review the progress and quality of the Work and to deter- mine, in general, if the Work, when fully completed, will be in accordance with the Construction Documents and the Construction Progress Schedule. On the basis of its on-site observa- tions, [Architect] will keep the Owner informed of the progress and quality of the work performed, and report known deviations from the Contract Documents, deviations from the most recently approved construction sched- ule, and shall endeavor to protect the Owner against defects and deficiencies observed in the Work.” The Supreme Court agreed with VRA, finding the contract’s language clear and unambiguous. Section F-5 mandated weekly site visits to confirm that work progresses according to the design, but did not extend VRA’s responsibility to construction methods or safety. “The mere fact that an engineer or architect was involved in the construction process and had contractual duties to [an owner] does not create an all-encompassing duty to protect everyone from every risk which could be encountered during the course of the project.” [See Black v. Gorman- Rupp, 00-1223, p. 5 (La.App. 4 Cir. 7/11/01), 791 So.2d 793, 795]. Section F-8 and Section 2.5 of the general conditions explicitly state that VRA has no control over construction means or safety protocols, leaving these responsibilities to the contractor. The contractor’s duties are further outlined in Sections 10.1, 10.3, and 10.6 of the general conditions, which place full responsibility for safety and site precau- tions on the contractor. This included the responsibility to take reasonable steps to prevent injury to all employees or other persons affected by the work. Therefore, the court held that VRA cannot be liable for worksite safety, as it had no contractual authority or obliga- tion in this area. The Louisiana Supreme Court’s decision underscores the importance of clear contractual language in defining the scope of responsibilities for architects and contract administrators. By affirming that VRA had no duty to ensure workplace safety under the terms of its agree- ment, the ruling reinforces the principle that contractual duties must be explicit and should not be expanded through interpretation. This case sets a precedent for future disputes involving construc- tion contracts, emphasizing that worksite safety remains the responsibility of con- tractors unless expressly stated otherwise in the contract. K Lori D. Barker, managing partner; and Dashia D. Myles, senior associate, are with Wood Smith Henning & Berman. lbarker@ wshblaw.com; dmyles@wshblaw.com State-By-State LOUISIANA Contracts carry the force of law for the parties involved, and their interpretation focuses on identifying the mutual intent of the parties.18 | CONSTRUCTION CLAIMS TheCLM.org/Magazine Design professionals are not typically named as defendants on nuisance claims arising out of construction projects. However, plaintiffs are increasingly attempting to bring nuisance claims against design professionals on the basis that they are responsible for the creation, continuance, or maintenance of nuisances originating from their designs. The Court of Appeals of Georgia has addressed such claims and has determined that design professionals lack the requisite control for nuisance liability under Georgia law. In Georgia, a nuisance is anything that causes hurt, inconvenience, or damage to another or in- terferes with another’s right of enjoyment in using their property. [See, e.g., O.C.G.A. § 41-1-1; Board v. Hillman, 335 Ga. App. 18, 21-22, 780 S.E.2d 725, 729 (2015)]. Like all tort claims, causation is an es- sential element to recovering on a nuisance claim. [See Lore v. Suwanee Creek Homeowners Ass’n, Inc., 305 Ga. App. 165, 172 (2010)]. As the Court of Appeals of Georgia has put it, “The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nui- sance.” [See Fielder v. Rice Constr. Co., 239 Ga. App. 362, 366, 522 S.E.2d 13, 16 (1999)]. And, to cause a nuisance, one must have control over the cause of the harm. Thus, “the essential element of nuisance is control over the cause of the harm.” (See Fielder). In the construction context, a project is controlled by the owner of the property, the general contractor that is building the project, and perhaps the subcontractors and tradesmen that are constructing the project. Design professionals, on the other hand, have no control over the project or the construction means and methods that are employed by the general contractor and its sub- contractors to construct the project. Rather, design professionals merely create the plans for construct- ing a project and then provide them to the owner and general contractor for construction. The essential issue for a nuisance claim against a design professional is whether the design profes- sional has the requisite control over the creation, continuance, or maintenance of a nuisance emanat- ing from a construction project. Only one Georgia case has touched on this issue. In McLendon & Cox v. Roberts, the plaintiff brought nuisance claims against a number of parties, including a landscape architect, due to stormwater runoff flowing across his property. The landscape architect sought a dismissal of the action on the basis of the plaintiff’s failure to attach an expert affidavit to his complaint State-By-State GEORGIA WHO’S A NUISANCE? Examining the Liability of Design Professionals as Claims Against Them Increase By L. David McCollum and Zachary H. Waldrop L. David McCollum Zachary H. WaldropWINTER 2024 | 19 as required by O.C.G.A. § 9-11-9.1. The landscape architect argued that the only viable claim that could be asserted by the plaintiff against it was a claim of profes- sional negligence because it did not control the nuisance that was damag- ing the plaintiff’s property. In analyzing the issue, the court determined that the owner of the property and anyone else who controlled the property from which the nuisance emanates are generally the proper defendants on a claim of nuisance. The court further reasoned that the landscape architect did not own or control the property from which the nuisance emanates and that it merely designed the landscaping for the property. Consequent- ly, the court found that the plaintiff’s claim against the landscape architect necessarily sounded in professional negligence rather than nuisance and reversed the denial of the landscape architect’s motion to dismiss. Under McLendon, any claim asserted against a design professional for damages caused by a nuisance emanating from a construction project must necessarily sound in professional negligence and be supported by an affidavit as required by O.C.G.A. § 9-11-9.1. A design profes- sional’s mere design of a construction project does not afford the requisite control required to establish a claim of nuisance under Georgia law. With the current trends in stormwater litigation, plaintiffs will no doubt continue to name design professionals in lawsuits alleging nuisance. In defending against such claims, the design professional should emphasize lack of control of the nuisance and that such claims necessarily sound in professional negligence under McLendon. K L. David McCollum, partner; and Zachary H. Waldrop, associate, are with Freeman Mathis & Gary LLP. david.mccollum@ fmglaw.com; zachary.waldrop@fmglaw.com State-By-State GEORGIA The essential issue for a nuisance claim against a design professional is whether the design professional has the requisite control over the creation, continuance, or maintenance of a nuisance emanating from a construction project. #CLM2025 And Claim Your Spot in Dallas at the Annual Conference TODAY REGISTERNext >