FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

In a Win for Property Owners California Court Expands and Clarifies Privette Doctrine

March 28, 2018 — Garret Murai – California Construction Law Blog
We’ve written before about the Privette doctrine, which generally holds that a higher-tiered party is not liable for injuries sustained by employees of a lower-tiered party under the peculiar risk doctrine, here, here, here and here. We’ve also talked about some of the exceptions to the Privette doctrine, including the non-delegable duty doctrine and the negligent exercise of retained control doctrine, which provide that a hirer cannot rely on the Privette doctrine if it owed a non-delegable duty to an employee of an independent contractor or if it retained control over the work of an employee of an independent contractor and negligently exercised that control in a manner that affirmatively contributes to injuries to that employee. In the next case, Delgadillo v. Television Center, Inc., Second District Court of Appeals, Case No. B270985 (February 2, 2018), the Court examined whether a property owner could be held liable under the non-delegable duty doctrine and negligent exercise of retained control doctrine for failing to provide structural anchor bolts on its buildings which led to the death of an employee of window washing company. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel, Rose, Black, & Dean, LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Northern District of Mississippi Finds That Non-Work Property Damages Are Not Subject to AIA’s Waiver of Subrogation Clause

July 11, 2018 — Shannon M. Warren - The Subrogation Strategist
In recent months, the Northern District of Mississippi has grappled with how to interpret waivers of subrogation in American Institute of Architects (AIA) construction industry contracts and, specifically, how they apply to work versus non-work property. The distinction between work and non-work property has been commonly litigated and remains a hotly debated topic when handling subrogation claims involving construction defects. In Liberty Mutual Fire Ins. Co. v. Fowlkes Plumbing, 2018 U.S. Dist. LEXIS 23515 (February 12, 2018), a fire consumed the entire insured risk when one of the defendants was performing window restoration services. Subsequently, the insured’s subrogated insurer filed suit against several defendants involved in the construction project at issue. In response to the defendants’ motion for summary judgment, the District Court for the Northern District of Mississippi considered whether the waiver of subrogation clause in AIA contract form A201-2007 precluded the subrogated insurer from recovering damages from the defendants. The court held that the waiver of subrogation provision contained in AIA document A201-2007 barred the insurer from recovering for damages to the work itself, but did not apply to non-work property. Read the court decision
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Reprinted courtesy of Shannon M. Warren, White and Williams LLP
Ms. Warren may be contacted at warrens@whiteandwilliams.com

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Rhode Island Examines a Property Owner’s Intended Beneficiary Status and the Economic Loss Doctrine in the Context of a Construction Contract

March 18, 2019 — Shannon M. Warren - The Subrogation Strategist
In Hexagon Holdings Inc. v. Carlisle Syntec, Inc. No. 2017-175-Appeal, 2019 R.I. Lexis 14 (January 17, 2019), the Supreme Court of Rhode Island, discussing claims associated with allegedly defective construction, addressed issues involving intended beneficiaries to contracts and the application of the economic loss doctrine. The court held that, based on the evidence presented, the building owner, Hexagon Holdings, Inc. (Hexagon) was not an intended third-party beneficiary of the subcontract between the general contractor (A/Z Corporation) and the subcontractor, defendant McKenna Roofing and Construction, Inc. (McKenna). In addition, the court held that, in the context of this commercial construction contract, the economic loss doctrine applied and barred Hexagon’s negligence claims against McKenna. Approximately nine years after Hexagon entered into a contract with A/Z Corporation for the construction of a building, Hexagon filed suit against A/Z Corporation’s roofing installation subcontractor, McKenna, and the manufacturer of the roofing system. Hexagon alleged that the roof began to leak shortly after McKenna installed it. Notably, Hexagon did not sue A/Z Corporation. Read the court decision
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Reprinted courtesy of Shannon M. Warren, White and Williams
Ms. Warren may be contacted at warrens@whiteandwilliams.com

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Contractor Side Deals Can Waive Rights

October 02, 2023 — Christopher G. Hill - Construction Law Musings
Here at Construction Law Musings, we are quite fond of the Federal Miller Act and it’s Virginia counterpart, the “Little” Miller Act. Both of these statutes allow a subcontractor or supplier on a government construction project the security to perform their work with the knowledge that a bonding company will back their claim for payment. These acts are necessary because a construction company cannot file a mechanic’s lien on a government owned piece of property. As a general rule the Miller Acts impose almost strict liability on a contractor and its surety to pay for work performed by a downstream supplier or subcontractor. However, as a recent case out of the Fourth Circuit Court of Appeals makes clear, this rule is not without exceptions. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Nonparty Discovery in California Arbitration: How to Get What You Want

March 02, 2020 — Leilani E. Jones - Payne & Fears
This article was originally published for the Association of Business Trial Lawyers (ATBL) Report, Volume XX, No. 3, Winter 2018 by attorney Leilani L. Jones. Opting for arbitration requires attorneys to balance efficiency and procedural protections. The implications of arbitration are something clients certainly have to carefully consider both when drafting arbitration provisions, and after initiating a demand. While arbitration can in many respects streamline the civil discovery process, one of the largest roadblocks for cases in California arbitrations is “streamlining” discovery from nonparties. This article explores the challenges presented by third party discovery in arbitration, and proposes strategies for obtaining such discovery efficiently and expeditiously. Alternative dispute resolution tends to make sense to most businesses implementing preventive measures for future litigation. Clients, lawyers, and judges can generally agree that arbitration is the more “cost-effective” way to resolve disputes, especially in California. While arbitration is theoretically a lowcost option for dispute resolution, almost all parties (particularly the party defending) bristle at climbing expenditures during discovery. This is all despite the perception of more “streamlined” processes in arbitrations. On balance, arbitrators, employing less formal procedures for discovery disputes, can typically cut to the chase faster than a civil judge. Parties often resolve issues via letter brief and telephonic hearing, if necessary, instead of formal noticed motions with accompanying separate statements. The Judicial Arbitration and Mediation Services, Inc.’s (“JAMS”) own “Arbitration Discovery Protocols” specifically “ensure that an arbitration will be resolved much less expensively and in much less time than if it had been litigated in court.” Accessed at https:// www.jamsadr.com/arbitration-discovery-protocols. Read the court decision
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Reprinted courtesy of Leilani E. Jones, Payne & Fears
Ms. Jones may be contacted at llj@paynefears.com

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Contract Change #9: Owner’s Right to Carry Out the Work (law note)

March 28, 2018 — Melissa Dewey Brumback - Construction Law in North Carolina
In prior versions of the General Conditions, if a contractor defaulted and the Owner (after giving notice) opted to cure by carrying out the work itself, an appropriate Change Order would be issued. However, a Change Order is a contract that requires an agreement by both the Owner and Contractor, and, obviously, Contractors were reluctant to agree that they were in default and responsible for a deductive change order. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Construction Law in North Carolina

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The Construction Lawyer as Problem Solver

October 21, 2015 — Christopher G. Hill – Construction Law Musings
As a construction attorney here in Virginia I “wear many hats.” Counselor, mediator, adviser, risk manager, litigator, and others depending upon the situation. I take each and every one of these roles seriously and at times take on more than one depending on a client’s situation. One “role” that I try to keep in mind every day when I come to work is that of problem solver. In response to the various attacks on an attorney’s role in the construction world, I have written that your friendly neighborhood construction lawyer can and should be part of the solution, and not part of the problem. A big part of this in my mind is the need to focus on the fact that any construction dispute is a problem to be solved, preferably earlier rather than later. By the time that a construction matter reaches my desk, the parties to that dispute have likely reached some sort of impasse in need of an efficient solution. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Failing to Pay Prevailing Wages May Have Just Cost You More Than You Thought

April 01, 2015 — Garret Murai – California Construction Law Blog
Mechanics lien claims, payment bond claims, stop payment notice claims, delay claims, defect claims, abandonment claims . . . With the variety of claims unique to construction projects it’s easy to forget that construction disputes are simply a category of business disputes in which broader business-related torts apply. In Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., Case No. B255558 (February 20, 2015), the California Court of Appeal for the Second District held for the first time that a second-place bidder on a public works contract may sue a winning bidder – who failed to pay its workers prevailing wages – under the business tort of intentional interference with prospective economic advantage. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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