FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Poor Record Keeping = Going to the Poor House (or, why project documentation matters)

June 11, 2014 — Melissa Dewey Brumback – Construction Law in North Carolina
You are an engineer or architect. You understand the importance of thorough designs. What about thorough documentation of the daily happenings on the construction project? That is equally important. As regular readers of this blog know, I have often spoken of the importance of proper record keeping on construction projects. In fact, lack of good project records is one of the 7 mistakes in my white paper 7 Critical Mistakes that Engineers & Architects make During Project Negotiation and Execution that Sabotage their Projects & Invite Litigation. Now, a construction management expert, who, like me, sees the ugly when construction projects turn bad, has weighed in with perhaps the authoritative reasoning and rationale (pdf) for good project records. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Construction Law in North Carolina
Ms. Brumback may be contacted at mbrumback@rl-law.com

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Insurer Must Indemnify Additional Insured After Settlement

October 21, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The court determined that Target was an additional insured under its supplier's policy and the insurer had a duty to indemnify Target after it settled the underlying suit. Selective Ins. Co. v. Target Corp., 2015 U.S. Dist. LEXIS 123230 (E.D. Ill. Sept. 15, 2015). Angela Brown sued Target when she was allegedly injured by a door to a fitting room that came unhinged and fell on her head. Harbor Industries, Inc. supplied Target with its fitting rooms. Pursuant to the "Supplier Qualification Agreement" (SQA), Harbor named Target as an additional insured under its policy with Selective Insurance Company. The SQA became effective and was to remain in effect until terminated by either party. A second agreement, the "Program Agreement," set forth the terms under which Harbor sold the fitting rooms to Target. The Program Agreement went into effect on April 23, 2009, and expired on July 1, 2010. Brown's injury occurred on December 17, 2011, while the SQA and the policy were in effect, but after the Program Agreement expired. After Brown's injury, Target tendered to Selective, who denied coverage, contending Target was not an additional insured. The policy's endorsement expanded insureds to any additional insured whom Harbor agreed in a written contract to add as an additional insured. Selective filed suit and the parties filed cross-motions for summary judgment. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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One-Upmanship by Contractors In Prevailing Wage Decision Leads to a Bad Result for All . . . Perhaps

July 19, 2021 — Garret Murai - California Construction Law Blog
Fights between contractors can be a bit like Mad magazine’s “Spy vs. Spy” with each side trying to out outwit and one-up one another. The next case, Division of Labor Standards Enforcement v. Built Pacific, Inc., Case No. D076601 (March 15, 2021), is a case in point. The Built Pacific Case Built Pacific, Inc. was a subcontractor to Austin Sundt Joint Venture on a public works project known as the San Diego Regional Airport Authority Project. In 2015, following an investigation by the California Division of Labor Standards Enforcement (DLSE), the DLSE issued a Civil Wage Penalty Assessment of $119,319.76 based on Built Pacific’s failure to pay prevailing wages. The DLSE also named Austin Sundt in the Civil Wage Assessment pursuant to Labor Code 1743 which makes contractors and subcontractors jointly and severally liable for wage violations. As a result of the Civil Wage Assessment, Austin Sundt withheld approximately $70,000 in retention from Built Pacific. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Appeals Court Upholds Decision by Referee in Trial Court for Antagan v Shea Homes

May 10, 2012 — CDJ STAFF

In the case Antangan v. Shea Homes Ltd. Partnership (Cal. App., 2012), Plaintiffs appealed “an order vacating a judgment and entering a modified judgment in their construction defect action against defendants Shea Homes, Inc. and Shea Homes Limited Partnership,” while the Defendant, Shea Homes Limited Partnership (Shea Homes) appealed “an order of the judicial referee denying its motion to strike and tax costs.”



On the Antagon issue, the appeals court concluded that “the trial court did not err by vacating and modifying its judgment so that the cost of referee’s fees would be equally divided by the parties and consistent with a prior stipulation they filed in court.”



On the Shea Homes issue, the appeals court concluded: “1) the judicial referee did not err by ruling that plaintiffs’ offers to compromise (§ 998) were validly served on Shea Homes’ counsel, 2) the offers substantially complied with statutory requirements, 3) the offers were not required to be apportioned, and 4) the referee’s award of $5,000 as costs for a person assisting plaintiffs’ counsel was not an abuse of discretion.” The appeals court affirmed the judgment.



Here is a brief history of the trial case: “Plaintiffs Chito Antangan, Jimmy Alcova and other homeowners brought an action against defendants Shea Homes, Inc. and Shea Homes Limited Partnership for damages alleging that the properties they purchased from these ‘developer defendants’ were defective. Plaintiffs claimed numerous construction defects required them ‘to incur expenses’ for ‘restoration and repairs’ and the value of their homes had been diminished.”



In response, Shea Homes filed a motion for an order to appoint a judicial referee. The motion was granted and it was ruled that “a referee would ‘try all issues’ and ‘report a statement of decision to this court.’”



On May 10, 2010 the judicial referee (Thompson) “awarded plaintiffs damages and various costs, and ruled that ‘Shea Homes shall bear all of the Referee’s fees.’” The latter ruling would become a matter for contention later on.



In July of 2010, the plaintiffs “sought, among other things, $54,409.90 for expert fees, and $14,812.50 for the services of Melissa Fox for ‘exhibit preparation & trial presentation.’ Shea Homes filed a motion to strike and/or tax costs claiming: 1) Fox was a paralegal, 2) plaintiffs were not entitled to attorney’s fees, and 3) the fees for Fox’s services were an indirect and improper method to obtain attorney’s fees. The referee disagreed and awarded $5,000 for Fox’s services. The referee also ruled that plaintiffs had properly served valid offers to compromise (§ 998) on Shea Homes’ counsel in 2009. He said those offers to defendants in the case at that time did not have to be apportioned.”



“Antangan contends the trial court erred when it vacated and modified its original judgment, which ordered Shea Homes to pay all the referee’s fees. We disagree.”



Antagon contended that the trial court erred when it vacated and modified its original judgment regarding Shea Homes paying the referee’s fees. The appeals court disagreed: “A trial court has inherent authority to vacate or correct a judgment that is void on its face, incorrect, or entered by mistake. (§ 473; Rochin v. Pat Johnson Manufacturing Co. (1998),67 Cal.App.4th 1228; Olivera



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Proposed Changes to Federal Lease Accounting Standards

January 19, 2017 — Susan Elliott & Lori A. Lange - Peckar & Abramson, P.C.
The Federal Accounting Standards Advisory Board (FASAB) has proposed amendments to federal lease accounting standards found within Statement of Federal Financial Accounting Standard (SFFAS) 5, ‘Accounting of Liabilities of the Federal Government,’ and SFFAS 6, ‘Accounting for Property, Plant, and Equipment,’ promulgated by FASAB. The proposals would require entities leasing property to the federal government, such as private landlords, to recognize a lease receivable and deferred revenue at the beginning of the lease term (except on intragovernmental or short-term leases). The proposals are slated to take eff ect in reporting periods following September 30, 2018. PUBLIC COMMENTS ARE DUE JANUARY 6, 2017. The federal government is one of the largest tenants in the country. The General Services Administration (GSA) alone leases space to house over 600,000 government workers. GSA has over 8,000 leases throughout the U.S. Reprinted courtesy of Susan Elliott, Peckar & Abramson, P.C. and Lori A. Lange, Peckar & Abramson, P.C. Ms. Elliott may be contacted at selliott@pecklaw.com Ms. Lange may be contacted at llange@pecklaw.com Read the court decision
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California Supreme Court McMillin Ruling

January 24, 2018 — Don MacGregor - CDJ STAFF
Reaction to the recent California Supreme Court ruling in McMillin Albany LLC v. The Superior Court of Kern County has been both swift and diverse, with many notable California law firms weighing in on the potential impact this landmark ruling may have on the Construction Industry and construction defect litigation. In our ongoing desire to serve as a meaningful and comprehensive provider of news and information for Construction and Claims Professionals, we have included a selected number of the submissions we have received regarding this very important judicial ruling. Read the court decision
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DE Confirms Robust D&O Protection Despite Company Demise

February 18, 2015 — James Yoder, Michael Onufrak and Siobhan Cole – White and Williams LLP
On Feb. 5, 2015, the United States Bankruptcy Court for the District of Delaware, per Judge Brendan L. Shannon, entered proposed findings of fact and conclusions of law in favor of the former president and CEO of Ultimate Escapes Inc., James M. Tousignant, and its chairman, Richard Keith, after determining that Tousignant’s actions in negotiating and executing a controversial asset purchase agreement were protected by the business judgment rule, despite the demise of the company a short time later. The failure of a business strategy, in and of itself, does not create liability on the part of the former directors and officers of a bankrupt company. Background Ultimate Escapes was a luxury destination club that provided its members with access to high-end vacation residences around the world. Unfortunately, Ultimate Escapes’ business suffered greatly from the economic downturn that began in 2008, and on Sept. 20, 2010, Ultimate Escapes filed voluntary petitions for relief pursuant to Chapter 11 of the Bankruptcy Code. Reprinted courtesy of White and Williams LLP attorneys James Yoder, Michael Onufrak and Siobhan Cole Mr. Yoder may be contacted at yoderj@whiteandwilliams.com Mr. Onufrak may be contacted at onufrakm@whiteandwilliams.com Ms. Cole may be contacted at coles@whiteandwilliams.com Read the court decision
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Seeking the Urban Lifestyle in the Suburbs

March 05, 2015 — Beverley BevenFlorez-CDJ STAFF
As the ‘burbs become more urbanized, the definition of city is changing. Builder Magazine reported that while builders have responded to buyers who wanted an urban lifestyle, “what nearly all of them have learned in the process is that ‘city’ doesn’t mean what it used to. Neither does ‘suburb.’ In fact, nearly every builder that added a post-recession ‘urban’ division has found that home buyers in search of an urban lifestyle aren’t married to living downtown. For many, it seems it’s not ‘the city’ they want at all—it’s the lifestyle.” Leigh Gallagher, assistant managing editor of Fortune and author of The End of the Suburbs: Where the American Dream is Moving, told Builder, “People don’t necessarily want to live in Manhattan. They want a little bit of Manhattan sprinkled right near them.” Read the court decision
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