FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Include Materials Price Escalation Clauses in Construction Clauses

December 26, 2022 — Robert Alfert Jr. - Construction Executive
The construction sector has been in a bull market for an unprecedented period of time. With the novel impacts from the coronavirus—and all the associated side effects, such as government moratoria, shipping delays and materials availability—we are now in a market of extreme volatility in pricing, inflation and increasing capital finance rates. And yet the construction sector continues to plow forward despite uncertainty, producing critical infrastructure, and much necessary housing, among other projects. The signs are that this trend will continue at least through Q1 of 2023, and likely beyond that, especially when you factor into the equation the many billions of dollars being placed into the market through the Bipartisan Infrastructure Law. It is not surprising, therefore, that the number one issue in construction contracts in 2022 is how parties handle inflation and materials cost escalations in existing contracts and in the negotiations for new contracts. There is no other issue more heavily negotiated, often disputed and hotly debated in the construction sector today. Reprinted courtesy of Robert Alfert Jr., Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
Read the full story...
Reprinted courtesy of
Mr. Alfert may be contacted at robert.alfert@nelsonmullins.com

---

Seventh Circuit Confirms Additional Insured's Coverage for Alleged Construction Defects

August 10, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The Seventh Circuit held that the underlying complaint alleged an occurrence by asserting that the painting subcontractor was negligent in causing damage to the building. Westfield Ins. Co. v. Nat'l Decorating Serv., Inc., 2017 U.S. App. LEXIS 12516 (7th Cir. July 13, 2017). McHugh Construction, the general contractor for construction of a 24 story condominium building in Chicago, retained National Decorating Service, Inc. as a subcontractor to perform all of the painting work. This meant National Decorating would paint the exterior of the building with a protective coating that was a waterproof sealant. After completion, the building's board of managers sued McHugh, National Decorating, and others for damages resulting from faulty workmanship. The third amended complaint alleged: (1) significant cracking of the exterior concrete walls, interior walls, and ceilings; (2) significant leakage through the exterior concrete walls, balconies, and windows; (3) defects to the common elements of the building; and (4) damage to the interior ceilings, floors, interior painting, drywall, and furniture in the units. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly - Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---

Arkansas Federal Court Fans the Product Liability Flames Utilizing the Malfunction Theory

September 14, 2020 — Michael J. Ciamaichelo - The Subrogation Strategist
To establish a product liability claim in Arkansas, the plaintiff must prove that the product was supplied in a defective condition, which rendered it unreasonably dangerous and that the defective condition was the proximate cause of the claimed damage or injury. Ordinarily, a plaintiff relies upon direct evidence of a product defect to establish its product liability claim. However, in some cases, the product sustains so much damage that it is impossible for a plaintiff to obtain direct evidence of a defect. The malfunction theory allows a plaintiff in a product liability action to establish a defect through circumstantial evidence, when direct evidence of a defect no longer exists. In order to utilize the malfunction theory, a plaintiff must present evidence that an unspecified product defect was the most likely cause of the damage/accident and rule out all other possible causes of the damage/accident. In Am. Nat’l Prop. & Cas. Co. v. Broan-Nutone, No. 5:18-CV-5250, 2020 U.S. Dist. LEXIS 117116, the United States District Court for the Western District of Arkansas ruled that the plaintiff offered sufficient evidence under “the malfunction theory” to defeat a summary judgment motion in a product liability action involving a bathroom fan that was destroyed in a fire. Read the court decision
Read the full story...
Reprinted courtesy of Michael J. Ciamaichelo, White and Williams LLP
Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com

---

Just When You Thought General Contractors Were Necessary Parties. . .

December 31, 2014 — Christopher G. Hill – Construction Law Musings
Did you think that a subcontractor had to name a general contractor in a mechanic’s lien suit? I did. Did you think that nothing about this changed in the case where a Virginia mechanic’s lien was “bonded off” pursuant to Va. Code Section 43-71? I did. Well, a recent Virginia Supreme Court case, Synchronized Construction Services Inc. v. Prav Lodging LLC, seems to at least create some doubt as to whether the a general contractor is a “necessary” party to a lawsuit by a subcontractor in the case where a bond is posted for release of a mechanic’s lien. Read the court decision
Read the full story...
Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

---

To Catch a Thief

March 06, 2023 — Christopher Durso - Construction Executive
Tony Rader calls it “peeling back the onion”—the slow, methodical process of uncovering the full extent of an embezzlement scam that eventually totaled more than $1 million. What National Roofing Partners (NRP) first discovered was bad enough. The Coppell, Texas–headquartered company, which oversees a nationwide network of nearly 250 commercial roofing contractors, learned in 2018 that a South Texas firm called Statewide Texas Roofing was billing clients for work on behalf of NRP and pocketing all the money. It turned out to be a scheme masterminded by NRP’s then-president, who created Statewide, staffed the company with his kids and used phony work orders to steal hundreds of thousands of dollars in client fees from NRP. He’d been president for six years and with the company since it was created in 2007. It was a huge betrayal—and still just the tip of the iceberg. “Initially, we thought it was only half a million [dollars] or so,” says Tony Rader, NRP’s chief operating officer. “But I’ll never forget, [Chief Executive Officer] Steve [Little] and I were talking over a bourbon one night, and that’s when I told him, ‘I’ve seen this once before, and this is like an onion. You’ve only peeled off the outer layers. We’re going to be finding stuff for a year, and it’s just going to get bigger and bigger and bigger.’ He said, ‘You think?’ And I said, ‘Oh, I’m pretty sure.’” Rader was all too correct. Working with a third-party forensic accountant, NRP found that not only were its then-chief financial officer and several other employees involved in the scheme, but the president had also abused his corporate credit card, racking up personal charges going back to 2013—on luxury vacations, expensive dinners, clothes, jewelry, even his daughter’s destination wedding in Jamaica. The final tally on his scams: $1.4 million. Reprinted courtesy of Christopher Durso, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
Read the full story...
Reprinted courtesy of

---

California Joins the Majority of States in Modifying Its Survival Action Statute To Now Permit Recovery for Pain, Suffering And Disfigurement

January 03, 2022 — Krsto Mijanovic & Elizabeth D. Rhodes - Haight Brown & Bonesteel
On January 1, 2022, California Code of Civil Procedure (“CCP”)Section 377.30 et seq., as amended by Senate Bill 447, otherwise known as the “survival action” statute1, goes into effect. On that date, all plaintiffs filing new civil cases filed on or after January 1, 2022, and before January 1, 2026, and plaintiffs in any action or proceeding granted trial preference pursuant to CCP Section 36 before January 1, 2022, will be expressly allowed to recover damages for a decedent’s pain, suffering, or disfigurement in a survival action.2 This is a significant change in California law. In that regard, California is now the 46th state to permit this form of recovery. As reported in the Legislative Counsel’s Digest3, Consumer Attorneys of California and Consumer Federation of California, which co-sponsored Senate Bill 447, opined to the Legislature that the prior law provided a “death discount” to defendants which incentivized bad faith delays in resolution, and caused unnecessary congestion of the already overburdened court system. These argued issues will be vetted by the Legislature using the four-year reporting requirement that is also part of the amendment to the statute, requiring plaintiffs who recover this newly permitted category of damages to report the valuation and details of the case to the Judicial Council within 60 days of the judgment or other operative court document being entered in the court’s docket.4 The amendment will be evaluated by the Legislature for amendment or extension on or before January 1, 2026. Reprinted courtesy of Krsto Mijanovic, Haight Brown & Bonesteel and Elizabeth D. Rhodes, Haight Brown & Bonesteel Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com Ms. Rhodes may be contacted at erhodes@hbblaw.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Contractors Should Be Optimistic that the Best Value Tradeoff Process Will Be Employed by Civilian Agencies

September 10, 2018 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel
In The Fiscal Year 2019 NDAA Imposes Government-Wide Limitations on the Use of Lowest-Price Technically Acceptable Procurements, Pillsbury attorneys Dick Oliver and Aaron Ralph are optimistic that contractors will soon have additional legal authority to demonstrate to civilian agencies that a best value tradeoff process should be employed.

• Congress’ trend of limiting the use of the much-derided lowest price, technically acceptable (LPTA) procurement process continues.

Read the court decision
Read the full story...
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

---

Georgia State and Local Governments Receive Expanded Authority for Conservation Projects

May 31, 2021 — David R. Cook Jr. - Autry, Hall & Cook, LLP
In the 2020-2021 session, the Georgia General Assembly amended existing laws to expand state and local governments’ authority to enter conservation projects. In connection with these projects, the contractor guarantees that cost savings or revenue increases will cover any payments for the project. Read more about conservation projects, including Guaranteed Energy Savings Performance Contracts With regard to school systems, conservation projects had previously included facility alterations designed to reduce energy or water consumption or operation costs. But the new law expands the permitted projects to include equipment purchases used in new construction or building retrofit, addition, or renovation. It also adds training programs incidental to the contract. Read the court decision
Read the full story...
Reprinted courtesy of David R. Cook Jr., Autry, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

---