Fairfield Connecticut Building Expert Directory

Catching Killer Clauses in Contract Negotiations

January 29, 2024 — James T. Dixon - Construction Executive
Risk-management personnel who are in the business of reviewing and negotiating construction contracts have some simple tools at their disposal to make sure their edits are addressing all of the killer risk-shifting clauses in those contracts. One of those is the index to that document. But not all authors of construction contract documents are kind enough to include an exhaustive index in their form agreements. One of the most popular sets of general conditions, the A201 General Conditions published by the American Institute of Architects, includes one that is fairly comprehensive. It identifies the six terms that include a reference to indemnification, for example. On the other end of the spectrum are the innumerable custom forms created by public and private project owners, and these rarely have an index. Even more powerful than an index is the search or find functions that are available in word processing applications and now in Adobe, the publisher of documents in portable document format, more commonly known as PDF. But with PDF documents, one must be careful to make sure the document under review is in fact searchable. Because every letter counts, it is important to have full confidence in the integrity of the search. Reprinted courtesy of James T. Dixon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Industry Standard and Sole Negligence Defenses Can’t Fix a Defect

June 14, 2021 — Lian Skaf - The Subrogation Strategist
Strict products liability cases have been the subject of much fluctuation in the Pennsylvania courts over the last few years. Utilizing hope created by the courts in recent strict liability cases, defendants have tried to revive defenses based on meeting industry standards and the plaintiff’s contributory negligence. Recently, the Superior Court of Pennsylvania tempered that hope with limitations of how far strict liability defenses can extend. In Sullivan v. Werner Co., No. 3086 EDA 2019, 2021 Pa. Super. LEXIS 210, an appellate panel of the Superior Court reviewed the lower court’s decision to exclude evidence of industry standards and of the plaintiff’s negligence in a trial that resulted in a $2.5 million verdict for the plaintiff. Upholding the decision of the lower court, the court found that the proffered evidence was within the discretion of the court to exclude. In Sullivan, Michael Sullivan (Sullivan) was working as a union carpenter at a renovation project for a local school. He and his apprentice were installing exterior sheathing to the outdoor walls. In order to install the sheathing, Sullivan had to use a scaffold. He put together a new SRS-72 scaffold manufactured by Werner Company (Werner) that his foreman bought at Lowe’s Companies, Inc. (Lowe’s) and used the scaffold during the course of his work. While on the scaffold, Sullivan fell through and crashed to the ground. He suffered permanent injuries as a result of the incident. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

COVID-19 and Mutual Responsibility Clauses

June 01, 2020 — Joseph M. Leone - ConsensusDocs
As everyone knows, there is a tremendous amount of uncertainty in the construction industry due to the COVID-19 pandemic. Schedules, productivity, safety processes, and seemingly everything else are being affected. In these difficult times, most contractors are making every effort to work together to solve the problems caused by COVID-19. But what happens when differences arise between project owners, contractors, and subcontractors as to the effect of COVID-19 on a project? One party may want to continue pushing the schedule, others may want to slow down, or, more likely, not be able to keep up with the original schedule because of some reason related to COVID-19. As between a prime contractor and a subcontractor, a mutual responsibility clause can provide some clarity or, unfortunately, depending on how the subcontract is written, confusion. Almost all subcontracts have a clause which flows down the prime contractor’s obligations on a project to the subcontractor as applicable to the subcontractor’s work. Known as “flow-down” clauses, this clause works in one direction; obligations of the prime contractor “flow-down” to the Subcontractor. A mutual responsibility clause, in essence, works in both directions. The subcontractor is required to perform its obligations consistent with the prime contractor’s obligations to the owner and the subcontractor is granted the same rights against the prime contractor which the prime contractor has against the owner. Obligations flow down and rights flow up. The rights and obligations flowing through the prime contractor include, the obligation to perform the work in accordance with the plans and specifications, the obligation to meet the schedule constraints in the prime agreement, and the right to extensions of time and change orders to the extent the prime contractor obtains the same. Read the court decision
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Reprinted courtesy of Joseph M. Leone, Drewry Simmons Vornehm, LLP
Mr. Leone may be contacted at jleone@dsvlaw.com

Trump, Infrastructure and the Construction Industry

March 01, 2017 — Garret Murai – California Construction Law Blog
It’s been a whirlwind since Donald Trump became President. Some might even say a tornado. Many believed (including myself) that he couldn’t win. I was wrong. Some also believed (again, including myself) that he wouldn’t make good on his campaign promises. So far, he has. While I usually don’t like being wrong, if there’s one thing I couldn’t be happier being wrong about, it’s President Trump’s promises to rebuild the nation’s infrastructure. So, what can the construction industry expect under our first developer-turned-POTUS, Donald Trump, who is arguably the most exciting President for the construction industry since FDR? Where We Are Today The American Society of Engineers, in its oft-cited infrastructure “Report Card,” gave nation’s infrastructure an overall grade of D+, with an estimated investment infusion of $3.6 trillion needed by 2020 just to keep the nation’s infrastructure in “good” (note, not “great”) repair. 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

EEOC Suit Alleges Site Managers Bullied Black Workers on NY Project

June 15, 2020 — Emell D. Adolphus - Engineering News-Record
Bullying, threats and racial slurs detail alleged “hostile” working conditions for black employees at a now complete cement plant modernization project near Albany, N.Y., in a lawsuit filed June 2 by the U.S. Equal Employment Opportunity Commission against CCC Group Inc., a San Antonio, Texas-based general contractor. Emell D. Adolphus, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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Court Grants Partial Summary Judgment on Conversion Claim Against Insurer

February 01, 2023 — Tred R. Eyerly - Insurance Law Hawaii
Although the court was incredulous that the parties were disputing the possession of a gate opener allegedly damaged in a lightning strike, it granted the insured's motion for partial summary judgment finding the insurer had converted the gate opener. Privratsky v. Liberty Mut. Fire Ins Co., 2022 U.S. Dist. LEXIS 196002 (D. Haw. Oct. 27, 2022). (Full disclosure, our office is co-counsel for the insured). Mr. Privratsky alleged his home on Maui was struck by lightning which caused an electrical surge. The home and personal property were damaged. The alleged cost of repair work at one point was as much as $325,000. A claim was submitted under a homeowner's policy issued by Liberty Mutual. Liberty paid for only some of the damage. Privratsky filed suit alleging three causes of action for: (1) declaratory judgment that the losses were covered by the policy issued by Liberty; (2) bad faith; and (3) conversion of personal property, namely, the damaged gate operator. 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

Shaken? Stirred? A Primer on License Bond Claims in California

July 14, 2016 — Garret Murai – California Construction Law Blog
Shaken? Stirred? A bit hot under the tuxedo collar perhaps? Maybe it’s time for a martini. Or two. When your project’s a mess, your contractor isn’t returning your calls, and you don’t have a license to kill it’s only natural that you would want to go after that other license: the contractor’s license bond. However, except for smaller claims, or situations where you discover that the contractor is or might be judgment-proof, going after a contractor’s license bond isn’t necessarily the panacea many might hope it to be. Read on to learn why. What is a license bond? First, a license bond is not insurance. While insurance is typically limited to property damage and personal injury, a license bond covers a contractor’s violation of the Contractors State License Law. All California contractors are required to have on file a license bond (or, alternative, such as a cash deposit) with the California Contractors State License Board (“CSLB”). 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

New 2021 ALTA/NSPS Land Title Survey Standards Effective February 23, 2021

March 01, 2021 — Emily K. Bias & Josh D. Morton - Gravel2Gavel Construction & Real Estate Blog
The “Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys” is a document jointly promulgated by the American Land Title Association (ALTA), representing the title insurance industry, and the National Society of Professional Surveyors (NSPS), representing professional land surveyors, which describes the uniform minimum standards with which surveyors must comply when preparing a survey to be used by a title insurance company for the purpose of deleting the general survey exception from ALTA title policy forms. The first such set of standards was developed in 1962 and has since been revised 10 times. The standards are currently updated every five years and are relied on by real estate professionals, including purchasers, lenders, title insurers and their attorneys, nationwide. In October 2020, a joint committee comprising representatives of both ALTA and NSPS adopted the “2021 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys,” which will become effective on February 23, 2021. The significant changes between the 2021 standards and the previous 2016 standards are summarized below. Survey Matters The 2021 standards clarify that only survey-related matters must be summarized on the survey. This revision was intended to foreclose a practice common among some institutional lenders to require that the survey list all items shown in Schedule BII of the title commitment on the face of the survey regardless of whether those items may in fact be survey related. The 2021 standards also add a requirement that the surveyor include a note specifying whether the location of a right of way, easement or other survey-related matter is shown on the survey. This change incorporates common lender and purchaser requirements that were not previously enumerated in the survey standards. Reprinted courtesy of Emily K. Bias, Pillsbury and Josh D. Morton, Pillsbury Ms. Bias may be contacted at emily.bias@pillsburylaw.com Mr. Morton may be contacted at josh.morton@pillsburylaw.com Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES