Fairfield Connecticut Building Expert Directory

Liquidated Damages: A Dangerous Afterthought

January 15, 2019 — Trevor B. Potter - Construction Executive
Owners and contractors frequently treat liquidated damages provisions as an afterthought, but they deserve to be treated as a key deal term. If a contractor breaches a contract by failing to complete the work in a timely manner, the remedy is typically an agreed upon amount or rate of liquidated damages. Liquidated damages provisions seldom get more than a cursory, “back of the napkin” analysis, or worse, parties will simply plug in a number. This practice is dangerous because liquidated damages typically represent the owner’s sole remedy for delay and, more importantly, they are subject to attack and possible invalidation if certain legal standards are not met. The parties to a construction contract should never agree to an amount of liquidated damages without first attempting to forecast and calculate actual, potential damages. Reprinted courtesy of Trevor B. Potter, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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PATH Station Designed by Architect Known for Beautiful Structures, Defects, and Cost Overruns

October 01, 2013 — CDJ STAFF
The new PATH station at the World Trade Center site in New York is six years behind schedule and its cost has doubled to $4 billion dollars. But maybe New Yorkers shouldn’t be surprised. The New York Times reports that the Port Authority, which operates the PATH trains between New York and New Jersey, hired Santiago Calatrava, an architect whose work has frequently lead to cost overruns and claims of defects. The problems in lower Manhattan are not all Mr. Calatrava’s fault. Auditors described the Port Authority as “a challenged and dysfunctional organization.” (A separate report in the New York Times notes that a former PATH executive may have walked away with the rights to the words “World Trade Center” for $10. The company he subsequently founded, The World Trade Center Association, charges millions for the use of the name.) One problem with Mr. Calatrava’s design for the station is that he insisted that all the mechanical elements of the station be located in other buildings. Further, the Port Authority might want to examine those plans carefully. In the design for a museum in Valencia, Spain, Mr. Calatrava forgot to provide for handicap access or fire escapes. That project, according to the Times tripled in cost as it was built. Read the court decision
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Spearin Doctrine as an Affirmative Defense

November 30, 2016 — David Adelstein – Florida Construction Legal Updates
The Spearin doctrine, referred to as the implied warranty of constructability doctrine, is oftentimes utilized as an affirmative defense by a contractor being sued for construction defects. Under the Spearin doctrine (recognized in the government contract setting), a contractor is NOT liable for defects in the plans and specifications furnished by the owner if the contractor constructs the project pursuant to the plans and specifications. This is because the owner impliedly warrants the constructability of the plans and specifications it furnishes to the contractor. Hence, the contractor should not be liable for defective construction caused by the owner furnishing defective plans and specifications. Read the court decision
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Reprinted courtesy of David Adelstein, Katz, Barron, Squitero, Faust, Friedberg, English & Allen, P.A.
Mr. Adelstein may be contacted at dma@katzbarron.com

Contractor May Be Barred Until Construction Lawsuit Settled

November 06, 2013 — CDJ STAFF
In July, Pamar Enterprises was constructing a water main in Bad Axe, Michigan and an error on their part sent water and sewage into homes. This was similar to what happened when they constructed a water main in 2007 in Lyon Township. Now Michigan Representative Terry Brown wants the state to stop awarding contracts to Pamar until the lawsuits are resolved. “I’ve asked [the Michigan Department of Transportation] not to have any more contracts with Pamar,” said Mr. Brown. Mr. Brown is also seeking that the state withholds payments to Pamar. “I was assured that they would not be getting any more payments until the situation was satisfactorily resolved.” In the 2007 case, Pamar won in Oakland County Circuit Court, but the Michigan Court of Appeals, found that Pamar failed in its “duty to exercise reasonable care when it entered onto an altered private property.” Read the court decision
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Workarounds for Workers' Comp Immunity: How to Obtain Additional Insured Coverage when the Named Insured is Immune from Suit

May 25, 2020 — Bethany L. Barrese - Saxe Doernberger & Vita, P.C.
Construction is an inherently risky business, fraught with the potential for human error. Despite best efforts to ensure safety, accidents involving construction workers are common, with consequences ranging from your run-of-the-mill trip and fall to much more serious and debilitating injuries. A worker who is injured on the job generally receives workers’ compensation benefits through their employer. Most states have enacted statutes stating that this is the exclusive remedy available from the employer, effectively making employers immune against civil lawsuits that might otherwise be brought by their injured employees. However, workers’ compensation benefits do not always fully compensate the employee for their injuries. In the construction industry, this often leads to lawsuits against upstream parties, such as a general contractor or project owner. Read the court decision
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Reprinted courtesy of Bethany L. Barrese, Saxe Doernberger & Vita, P.C.
Ms. Barrese may be contacted at blb@sdvlaw.com

The 2021 Top 50 Construction Law Firms™

June 14, 2021 — Cybele Tamulonis - Construction Executive
Vaccination rates continue to rise, mandates are loosening for returning to work and school, and a $2 trillion infrastructure bill is looming on the horizon, but contractors remain cautious and counseled by the legal experts who thrive in the complex field of construction law. According to the latest report by the Bureau of Labor Statistics, construction employment numbers did not move much in April despite an increased demand for housing and a recovering economy. Due to continued fallout from the pandemic—and what seems like no end in sight for the rising costs of materials—contractors have been turning to construction law firms to navigate delayed projects, interpret contract language, assist in risk mitigation and ensure the road ahead is paved with understandable and protective clauses. For the 2021 survey for the annual U.S. ranking of The Top 50 Construction Law Firms™, Construction Executive’s editorial team reached out to dozens of attorneys at the nation’s best construction law firms to learn how the legal landscape is changing, as well as how legal teams are aiding clients with sharpening contract language and pivoting in response to challenges in the wake of the COVID-19 pandemic. Reprinted courtesy of Cybele Tamulonis, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Construction Spending Had Strongest Increase in Four Years

January 13, 2014 — CDJ STAFF
The Commerce Department announced a 1% gain in construction spending, from October to November, which is the biggest gain that construction has seen since March 2009, according to The Spokesman-Review. The gain brought construction spending to an adjusted annual rate of $934.4 billion. The Spokesman-Review further reports that residential construction rose 1.9% in November, while commercial construction rose 2.7%. Government construction, on the other hand, fell 1.8%. Read the court decision
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Indemnity: What You Don’t Know Can Hurt You!

September 19, 2022 — Caitlin Kicklighter & Bill Shaughnessy - ConsensusDocs
Risk allocation between the parties is a critical component of any construction contract. Indemnity obligations can be some of the important risk-shifting provisions of any design or construction contract. Indemnity provisions typically require one party, the Indemnitor, to agree to “hold harmless,” and/or reimburse another party, the indemnitee, from claims and liability arising out of the party’s work. Considering the financial consequences that an indemnity provision can have on a construction project, it is critical that all parties to a construction contract know the legal implications of the contract indemnity provisions and understand any limitations in enforcing the indemnity provisions depending on the controlling jurisdiction. While most indemnity clauses and obligations are enforceable, many states have enacted anti-indemnity statutes prohibiting or restricting specific indemnification provisions. These anti-indemnity statutes afford protection to contractors and subcontractors not generally in a position to protect themselves from overly extensive indemnity obligations. This article highlights several examples of indemnity provisions typically seen in construction contracts, the measures are taken by a growing number of states to protect parties with less bargaining power in the form of anti-indemnity statutes, and offers practical considerations when negotiating or drafting indemnity provisions.[1] Reprinted courtesy of Caitlin Kicklighter, Emory Law Student (2024 Graduate), (ConsensusDocs) and Bill Shaughnessy, Jones Walker LLP (ConsensusDocs) Mr. Shaughnessy may be contacted at bshaughnessy@joneswalker.com Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES