Fairfield Connecticut Building Expert Directory

Traub Lieberman Senior Trial Counsel Timothy McNamara Wins Affirmation of Summary Judgment Denial

August 28, 2023 — Timothy G. McNamara - Traub Lieberman
In this appeal brought before the State of New York Appellate Division, Second Judicial Department, the court ruled in favor of Traub Lieberman’s client, a housing complex owner, affirming the denial of co-defendant landscaping company’s summary judgment motion seeking dismissal of the cross-claims asserted by the complex owner against the co-defendant. In the underlying case, the plaintiff was allegedly injured when she slipped and fell on ice on the exterior stairs of the housing complex where she lived. The complex owner had contracted with the co-defendant to provide snow removal services for the complex. The plaintiff commenced action against both the complex owner and the landscaping company to recover damages for personal injuries. The complex owner asserted cross-claims against the landscaping company for contribution, common-law indemnification, and contractual indemnification. The landscaping company sought summary judgment dismissing the complaint and all cross-claims asserted against it, but the branch of the motion seeking dismissal of the cross-claims was denied. In the appeal brought before the Appellate Division, the court ruled in favor of Traub Lieberman’s client, the complex owner, affirming the denial of summary judgment for the cross-claims. Read the court decision
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Reprinted courtesy of Timothy G. McNamara, Traub Lieberman
Mr. McNamara may be contacted at tmcnamara@tlsslaw.com

Avoid Five Common Fraudulent Schemes Used in Construction

December 02, 2019 — Ken Van Bree - Construction Executive
Here’s an attention-getting statistic: A typical case of fraud in the construction industry has a median loss of $227,000, according to the 2018 Report to the Nations issued by the Association of Certified Fraud Examiners (ACFE) on occupational or internal fraud. This report further showed that the construction industry’s median loss is approximately $119,000 higher than the average fraud losses across all industries. Construction companies are most at risk for fraud related to corruption (such as bribes and kickbacks), billing related schemes, expense reimbursements, check tampering and equipment or material theft. This brings up three important questions:

What are the fraud schemes affecting your company?
How can contractors keep their companies from experiencing these types of fraud?
What is the profile of fraudster?

The threat of fraud can never be wholly removed; however, companies should take steps to identify likely fraud schemes they might face. Below are a number of schemes frequently used to defraud construction companies. Reprinted courtesy of Ken Van Bree, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Reprinted courtesy of

Wilke Fleury Attorneys Featured in 2022 Northern California Super Lawyers and Rising Stars Lists

September 05, 2022 — Wilke Fleury LLP

Wilke Fleury is extremely proud that 14 of its incredibly talented attorneys are featured in the Annual List of Top Attorneys in the 2022 Northern California Super Lawyers magazine! Super Lawyers rates attorneys in each state using a patented selection process and publishes a yearly magazine issue that produces award-winning features on selected attorneys. Congratulations to this talented group:

Super Lawyers of 2022!	Rising Stars of 2022!
Daniel L. Egan	Islam M. Ahmad
David A. Frenznick	Kathryne E. Baldwin
George A. Guthrie	Adriana C. Cervantes
Ronald L. Lamb	Aaron R. Claxton
Neal C. Lutterman	José L. Parra
Stephen K. Marmaduke
Matthew W. Powell
Trevor L. Stapleton
Steven J. Williamson

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Reprinted courtesy of Wilke Fleury LLP

Zell Says Homeownership Rate to Fall as Marriages Delayed

April 30, 2014 — John Gittelsohn – Bloomberg
The U.S. homeownership rate may fall to as low as 55 percent because more Americans are choosing to rent as they postpone getting married and having children, said Sam Zell, chairman of landlord Equity Residential. Demographic and lifestyle changes, more than economic factors, are driving down the ownership rate over the long term, Zell said yesterday at the Milken Institute Global Conference in Beverly Hills, California. As of 2010, about 54 percent of adults were married, down from 57 percent a decade earlier, according to the U.S. Census Bureau. “The deferral of marriage has such a staggering impact on real estate and I just don’t think people focus on it,” said Zell, 72, whose Chicago-based Equity Residential is the largest U.S. apartment landlord. “I don’t think the multifamily market has ever had a better set of future demographics.” Read the court decision
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Reprinted courtesy of John Gittelsohn, Bloomberg
Mr. Gittelsohn may be contacted at johngitt@bloomberg.net

AB5 Construction Exemption – A Checklist to Avoid Application of AB5’s Three-Part Test

February 18, 2020 — Blake Dillion - Payne & Fears LLP
Construction companies have a unique opportunity to avoid the application of the restrictive new independent contractors law that took effect this year. This article provides a checklist that will help construction companies determine whether their relationships with subcontractors qualify for this exemption. California’s Assembly Bill 5 (“AB5”), which went into effect Jan. 1, 2020, enacts into a statute last year’s California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor. Certain professions and industries are potentially exempt from this standard, including the construction industry. The ABC test does not apply to the relationship between a contractor and an individual performing work pursuant to a subcontractor in the construction industry, if certain criteria are met. In order for the “construction exemption” to apply, the contractor must demonstrate that all of the following criteria are satisfied.

The subcontract is in writing;
The subcontractor is licensed by the Contractors State License Board and the work is within the scope of that license;
If the subcontractor is domiciled in a jurisdiction that requires the subcontractor to have a business license or business tax registration, the subcontractor has the required business license or business tax registration;
The subcontractor maintains a business location that is separate from the business or work location of the contractor;
The subcontractor has the authority to hire and to fire other persons to provide or assist in providing the services;
The subcontractor assumes financial responsibility for errors or omissions in labor or services as evidenced by insurance, legally authorized indemnity obligations, performance bonds, or warranties relating to the labor or services being provided; and
The subcontractor is customarily engaged in an independently established business of the same nature as that involved in the work performed.

The contractor must be able to establish each of the above criteria for the construction exemption to apply. If the contractor is successful, the long standing multi-factor test for determining independent contractor vs. employee status as described in S.G. Borello & Sons, Inc. v. Dep’t of Industrial Relations, 48 Cal. 3d 341 (1989) will apply. You should review your processes and procedures for engaging subcontractors to ensure that you can satisfy the above criteria. If you have questions about the application of AB5, the construction exemption, or the Borello factors, you should speak with an attorney. Read the court decision
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Reprinted courtesy of Blake A. Dillion, Payne & Fears
Mr. Dillion may be contacted at bad@paynefears.com

When Do Hard-Nosed Negotiations Become Coercion? Or, When Should You Feel Unlucky?

October 21, 2019 — Stan Millan, Jones Walker, LLP - ConsensusDocs
Conflict in a negotiation is to be expected and is arguably healthy for the process. Owners and contractors are constantly engaged in negotiations; whether it be negotiating changes to the work, changes to the schedule, or changes to the contractual terms. But at what point does taking a strong position in a negotiation cross the line and become coercion or bad faith? A recent decision from the Armed Services Board of Contract Appeals touched on this very issue. While this is a government contract case, the issues discussed in this case (namely negotiating a change) are routinely encountered in just about every construction project. This decision is instructive because it adds to a trending line of cases that limit an owner’s and contractor’s negotiation tactics. On August 5, 2019, the board issued an opinion in the appeal of Sand Point Services, LLC vs. NASA, ASBCA Nos. 6189. In Sand Point Services, the contractor was hired by the owner to repair the Wallops Flight Facility’s aircraft parking apron. During its work, the contractor hit a differing site condition, namely unsuitable soils. The contractor sought additional time and money for this differing site condition. The owner ultimately responded with a show cause letter to the contractor claiming, among other breaches, that the contractor was significantly behind schedule. This was generally viewed by all parties as the start of default proceedings against the contractor. Read the court decision
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Reprinted courtesy of Stan Millan, Jones Walker, LLP
Mr. Millan may be contacted at smillan@joneswalker.com

Additional Insured Not Entitled to Indemnity Coverage For Damage Caused by Named Insured

February 23, 2017 — Tred R. Eyerly – Insurance Law Hawaii
The additional insured unsuccessfully sought to recover damages to its building caused by the named insured. Brit UW, Ltd. v. Tripar, Inc., 2017 U.S. Dist. LEXIS 2462 (N.D. Ill. Jan. 6, 2017). Davis Russell Real Estate and Management LLC hired Tripar, Inc., a general contractor, to renovate a 12-unit apartment building. The entire roof was to be replaced by a roofing subcontractor. Davis Russell drafted a Professional Services Agreement (PSA) that governed the project. Tripar was to obtain a CGL policy and provide a certificate of insurance evidencing the coverage. Davis Russell was to be named as an additional insured. Tripar's insurance broker prepared a certificate of insurance reflecting that a CGL policy was issued to Tripar by Brit UW, Ltd. But the certificate clearly stated that it was not issued by the insurer and that it did not alter coverage. The certificate of insurance further stated that it conferred no rights upon the holder. 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

Hawaii Appellate Court Finds Agent May Be Liable for Failing to Submit Claim

November 01, 2022 — Tred R. Eyerly - Insurance Law Hawaii
After the agent informed the insured there was no coverage and submitting a claim would be a useless effort, the Hawaii Intermediate Court of Appeal reversed the trial court's dismissal of the insured's suit against the agent. Pflueger, Inc. v. AIG Holdings, Inc., 2022 Haw. App. LEXIS 279 (Haw. Ct. App. Sept. 2, 2022). In May 2008, Pflueger notified its agent, Noguchi & Associates, Inc., that it had received federal grand jury subpoenas. Noguchi informed Pflueger that the subpoenas did not qualify as a "claim" under two policies issued by National Union. Consequently, Noguchi did not forward a claim or the subpoenas to National Union and did not seek clarification as to whether the grand jury subpoenas were covered under the policies. Pflueger relied upon Noguchi's representations and took no further action until its attorney submitted a demand letter tendering Pflueger's defense to Nation Union nine months later, in February 2009. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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