FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Difference Between a Novation And A Modification to a Contract

May 10, 2022 — David Adelstein - Florida Construction Legal Updates
In contract law, there are two doctrines that have similarities but are indeed different. These doctrines are known as novation and modification. There are times you may want to make arguments relative to these doctrines because they are important for your theory of the dispute. Thus, you want to make sure you understand them so you can properly plead and prove the required elements to substantiate the basis of the theories. Understanding the elements will help you understand the evidence you will need to best prove your factual theories. A novation is essentially substituting a new contract for an old contract.

“‘A novation is a mutual agreement between the parties for the discharge of a valid existing obligation by the substitution of a new valid obligation.’” Thompson v. Jared Kane Co., Inc., 872 So.2d 356, 361 (Fla. 2d DCA 2004) (citation omitted). To prove a novation, a party must prove four elements: “(1) the existence of a previously valid contract; (2) the agreement of the parties to cancel the first contract; (3) the agreement of the parties that the second contract replace the first; and (4) the validity of the second contract.” Id. at 61. Whether the parties consented to the substitute contract can be implied from the factual circumstances. Id.

Parties are more familiar with a modification because it is not uncommon that parties may agree to modify contractual terms. The contract remains in effect but certain terms or obligations are modified. For example, a change order to a contract is a modification. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Part of the Whole: Idaho District Court Holds Economic Loss Rule Bars Tort Claims Related to Water Supply Line that was Part of Home Purchase

October 03, 2022 — Gus Sara - The Subrogation Strategist
In Safeco Ins. Co. of Ill. v. LSP Prods. Grp., 2022 U.S. Dist. LEXIS 139566, the United States District Court for the District of Idaho (District Court) considered whether the plaintiff’s tort claims against the manufacturer of an allegedly defective toilet water supply line were barred by the economic loss rule. The defendant filed a motion for summary judgment arguing that, since the supply line was a part of the home when the plaintiff’s insureds purchased it, the plaintiff was barred by the economic loss rule from bringing tort claims against the manufacturer. The District Court granted the defendant’s summary judgment motion, ruling that the supply line was a part of the home, which was the subject of the transaction, at the time it was purchased. Thus, the District Court held that the economic loss rule barred the plaintiff’s tort claims. In 2012, Melissa Norris and Richard Meyers (collectively, the Homeowners) purchased a newly built home in Eagle, Idaho. In 2016, a toilet supply line in one of the bathrooms began leaking, causing water damage to the home as well as to window blinds, an oven and dishwasher. The Homeowners also incurred a loss of rental income. The Homeowners submitted a claim to Safeco Insurance Company (Insurer), their property insurance carrier, who ultimately covered the Homeowners’ losses. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Contractor Allegedly Injured after Slipping on Black Ice Files Suit

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
Albert Jimenez, a contractor working in Philadelphia, Pennsylvania “has filed a civil action against the real estate group that owns the complex over claims that he became injured after slipping on black ice at the property” according to the Pennsylvania Record. The defendant, The Council of Fairmont, is accused “of negligence for failing to identify the dangerous defect in the parking lot, in this case, the patch of black ice, and failing to correct the hazardous condition,” the Pennsylvania Record reports. “Jimenez seeks an unspecified amount of compensatory damages, plus interest and litigation costs.” Read the court decision
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Florida’s New Civil Remedies Act – Bulletpoints As to How It Impacts Construction

April 10, 2023 — David Adelstein - Florida Construction Legal Updates
There has been much talk about Florida’s new Civil Remedies Act (House Bill 837) that Governor DeSantis approved on March 24, 2023. As it pertains to construction, here is how I see it with key bulletpoints on the impact this new Act has on the construction industry:

• New Florida Statute s. 86.121 – This is an attorney’s fees statute for declaratory relief actions to the prevailing insured to determine insurance coverage after TOTAL COVERAGE DENIAL. (Note: A defense offered pursuant to a reservation of rights is not a total coverage denial.) This right only belongs to the insured and cannot be transferred or assigned. And the parties are entitled to the summary procedure set forth in Florida Statute s. 51.011 requiring the court to advance the cause on the calendar. The new statute does say it does NOT apply to any action arising under a residential or commercial property insurance policy. (Thus, since builder’s risk coverage is a form of property insurance, the strong presumption is this new statute would not apply to it.) Rather, the recent changes to Florida Statute s. 626.9373 would apply which provides, “In any suit arising under a residential or commercial property insurance policy, there is no right to attorney fees under this section.”
• Florida Statute s. 95.11 – The statute of limitations for negligence causes of action are two years instead of four years. This applies to “causes of action accruing after the effective date of this act.”

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Construction Defect Bill Introduced in California

June 10, 2011 — CDJ STAFF

Linda Halderman (R-Fresno) has introduced a bill which would require lawyers soliciting clients for construction defect cases to provide their prospective clients with a statement including that sellers may be required to disclose that they were engaged in a construction lawsuit. Further, the bill would require lawyers to disclose that they cannot guarantee financial recovery.



Halderman was quoted by The Business Journal as saying, “Lawsuit abuse has been very damaging, especially to homeowners in the Valley.” Halderman hopes that her bill will discourage class action lawsuits against builders and that this will protect jobs in the construction industry.



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Standard For Evaluating Delay – Directly from An Armed Services Board Of Contract Appeal’s Opinion

October 04, 2021 — David Adelstein - Florida Construction Legal Updates
Sometimes, it is much better to hear it from the horse’s mouth. That is the case here. The Armed Services Board of Contract Appeal’s (ASBCA) opinion in Appeals of -GSC Construction, Inc., ASBCA No. 59402, 2020 WL 8148687 (ASBCA November 4, 2020) includes an informative discussion of a contractor’s burden when it encounters excusable delay and, of importance, the standard for evaluating delay. It’s a long discussion but one that parties in construction need to know, appreciate, and understand. EVERY WORD IN THIS DISCUSSION MATTERS. Construction projects get delayed and with a delay comes money because time is money. Many claims are predicated on delay. These can be an owner assessing liquidated damages due to a delayed job or a contractor seeking its costs for delay. Either way, the standard for evaluating delay and the burdens imposed on a party cannot be understated and, certainly, cannot be overlooked. For this reason, here is the discussion on evaluating delay directly from the horse’s mouth in the Appeal of-GSC Construction, Inc.:

The critical path is the longest path in the schedule on which any delay or disruption would cause a day-for-day delay to the project itself; those activities must be performed as they are scheduled and timely in order for the project to finish on time. Wilner v. United States, 23 Cl. Ct. 241, 245 (1991). In Yates-Desbuild Joint Venture, CBCA No. 3350 et al., 17-1 BCA ¶ 36,870, our sister board compiled an excellent and very helpful synopsis of the standards for evaluating delay claims, which I adopt nearly verbatim among the discussion that follows.

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Seven Key Issues for Construction Professionals to Consider When Dealing With COVID-19

April 13, 2020 — Jason Adams - Linked In
By now every construction professional has been inundated with articles regarding the impacts of COVID-19 on the construction industry. The sheer volume of information is overwhelming and changes by the hour. This article is intended to summarize key issues affecting construction professionals and serve as a general road map for navigating the crisis. 1. Determine Project Status The first consideration is whether the construction projects at issue are allowed to proceed given “shelter in place” and related orders. Generally speaking, Governor Newsom has deemed construction to be essential and, therefore, exempt from California’s “Safer at Home” order. There is some debate as to whether the governor’s order takes priority over contradictory local (City and County) orders. For example, some Northern California counties and the City of Berkeley have issued orders expressly providing that their local orders legally supersede the State order because the local orders are more restrictive. If a local ordinance, public entity representative, or the project owner orders the project to shut down, the parties will need to make a fact specific determination regarding how to proceed at that time. If the project proceeds, employee safety is paramount. In the City of Los Angeles employers are required to develop a “comprehensive COVID-19 exposure control plan” that includes a laundry list of safety requirements. Regardless of the jurisdiction, the parties must err on the side of caution and comply with social distancing (six feet), refrain from holding meetings, and close the project to the public. Anyone who can work remotely should be encouraged to do so. Read the court decision
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Reprinted courtesy of Jason Adams, Gibbs Giden
Mr. Adams may be contacted at jadams@gibbsgiden.com

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Loss Caused by Theft, Continuous Water Discharge Not Covered

September 17, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The insured's claim for loss based on theft and water leaks was not covered under the property policy. SJP Props. v. Mount Vernon Fire Ins. Co., 2015 U.S. Dist. LEXIS 97216 (E.D. Mo. July 27, 2015). SJP Properties bought and sold foreclosed properties. On July 13, 2006, it purchased at a foreclosure sale a property in St. Louis. The property was not inspected before or after the purchase, and sat vacant for more than two years. No one checked regularly on the property. The property was insured under a commercial property policy issued by Mount Vernon, effective from March 8, 2006 to March 8, 2009. The policy covered vandalism, but excluded loss caused by theft. An exception for the exclusion provided coverage for "building damage caused by the breaking in or exiting of burglars." The policy also excluded loss or damage caused by fungus, wet rot, dry rot and bacteria or water leaks for a period of 14 days or more. 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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