Fairfield Connecticut Building Expert Directory

Navigating Threshold Arbitration Issues in Construction Contracts

April 29, 2024 — Daniel D. McMillan and TJ Auner - The Dispute Resolver
Including an arbitration clause in your construction contract may not mean that your dispute will be confined to arbitration. Instead, parties often find themselves in court litigating threshold issues related to the existence and/or enforceability of an arbitration clause. Common issues include whether the underlying contract containing the arbitration clause is valid, whether the dispute falls within the scope of the clause, whether the parties complied with contractual prerequisites to arbitration, whether issues related to arbitrability are decided by the court or arbitrator, and whether one of the parties has waived their right to arbitrate. This blog post highlights two recent construction cases addressing threshold issues that a party seeking to enforce—or oppose enforcing—an arbitration clause might face. Seifert v. United Built Homes, LLC: Delegating Issues of Arbitrability to the Arbitrator In Seifert, an owner sued a homebuilder in Texas federal court for breach of contract and sought damages and declaratory relief. No. 3:22-CV-1360-E, 2023 WL 4826206 (N.D. Tex. July 27, 2023). The builder moved to compel arbitration. The owner opposed and argued that: (1) there was no agreement to arbitrate because the underlying contract was null and void, and (2) its claim for declaratory relief fell outside the scope of the arbitration clause. The court did not address the merits of either argument. Instead, it determined that these were issues for the arbitrator to decide. Reprinted courtesy of Daniel D. McMillan, Jones Day and TJ Auner, Jones Day Mr. McMillan may be contacted at ddmcmillan@jonesday.com Mr. Auner may be contacted at tauner@jonesday.com Read the court decision
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The Importance of the Subcontractor Exception to the “Your Work” Exclusion

May 16, 2018 — John J. Kozak, Esq. - Florida Construction Law News
Commercial General Liability (CGL) policies typically include a “your work” exclusion, excluding coverage for “’property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard.’” These CGL policies define “your work,” in pertinent part, as “work or operations performed by you or on your behalf.” (emphasis added). As the recent case of Mid-Continent Cas. Co. v. JWN Construction, Inc., 2018 U.S. Dist. LEXIS 20529 (S.D. Fla. 2018) reminds us, the “your work” exclusion can serve to eliminate coverage for a general contractor, even when property damage is caused by a subcontractor. Read the court decision
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Reprinted courtesy of John J. Kozak, Esq., Cole, Scott & Kissane, P.A.
Mr. Kozak may be contacted at john.kozak@csklegal.com

California Bid Protests: Responsiveness and Materiality

January 06, 2016 — Garret Murai – California Construction Law Blog
It can be a rough and tumble world out there. And in the case of public works construction in California, this includes bid disputes. California’s competitive bidding laws require that a public works contract be awarded to the “lowest responsible bidder.” However, as we’ve mentioned before, there are two requirements which must be satisfied for a bidder to be determined to be the lowest responsible bidder: (1) the awarded bidder’s bid must be “responsive”; and (2) the awarded bidder must be “responsible.” In a case decided this past month, DeSilva Gates Construction v. Department of Transportation, Case No. C074521 (December 14, 2015), the California Court of Appeals for the Third District addressed the first of these two requirements, whether two bids on $34 million highway widening project were responsive, which in turn involves a two-step process: (1) whether the bids were responsive or not; and (2) if not, whether the variance in the bids were “material” or “immaterial.” 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

Domtar Update

June 11, 2014 — Robert M. Caplan – White and Williams LLP
On May 29, 2014, the Pennsylvania Supreme Court granted allocatur—i.e., the permission to appeal—in the controversial subrogation case, Liberty Mutual Ins. Co. v. Domtar Paper Co., 77 A.3d 1282 (Pa. Super. Ct. 2013). In its order granting the relief to Liberty Mutual, a workers’ compensation insurer, the Supreme Court set forth the narrow issue to be decided on appeal: “Does Section 319 of the Pennsylvania Workers’ Compensation Act, 77 P.S. § 671, allow the employer/insurer to step into the shoes of the insured employee to subrogate against the tortfeasor?” In Domtar, Liberty Mutual was caused to incur approximately $35,000 in compensation benefits which it paid on behalf of George Lawrence, an employee of Liberty Mutual’s insured, for injuries he sustained in a work-related accident. Mr. Lawrence chose not to file an independent personal injury lawsuit. As a result, in order to recover its lien interests, Liberty Mutual sued the third parties responsible for causing Mr. Lawrence’s work-related injuries directly, having become subrogated to the rights of Mr. Lawrence by virtue of Liberty Mutual’s workers’ compensation expenditure on his behalf. Read the court decision
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Reprinted courtesy of Robert M. Caplan, White and Williams LLP
Mr. Caplan may be contacted at caplanr@whiteandwilliams.com

General Contractors: Consider Importance of "Primary Noncontributory" Language

February 16, 2017 — David Adelstein – Florida Construction Legal Updates
In prior articles, I reinforced the importance of general contractors including “primary and noncontributory” language in subcontracts and requiring the subcontractor to provide an analogous “primary and noncontributory” endorsement. As a general contractor this is important, particularly since you are going to require the subcontractor to (i) indemnify you for claims relating to personal injury, property damage, or death, and (ii) identify you as an additional insured under its commercial general liability (CGL) policy for claims arising out of the subcontractor’s scope of work. The “primary and noncontributory” language in your subcontracts allows you to maximize the value of your additional insured status. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

Real Estate & Construction News Round-Up (07/13/22)

August 07, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
The Biden administration will use infrastructure funds to upgrade 85 airports across the U.S., The Affordable New York tax provision expires, homebuyers in China refuse to pay mortgages, and more.

Hines, a Houston-based real estate giant, set a target of its 1,530 properties in 28 countries being net-zero operational carbon by 2040. (John Egan, Innovation Map)
The Biden administration announced it will spend roughly $1 billion from the infrastructure package to upgrade 85 airports across the country, including terminals and other facilities. (Jeff Mordock, The Washington Post)
The Affordable New York tax provision, which offered a property tax exemption for housing projects that include a percentage earmarked for lower-income renters, expired in June, creating an unsettled future for the city’s multifamily development. (Rebecca Picciotto, The Wall Street Journal)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

Traub Lieberman Attorneys Recognized as 2024 New York – Metro Super Lawyers®

November 11, 2024 — Traub Lieberman
Traub Lieberman is pleased to announce that seven Partners from the Hawthorne, NY office have been selected to the 2024 New York - Metro Super Lawyers list. 2024 New York – Metro Super Lawyers

Copernicus Gaza – Insurance Coverage
Jonathan Harwood – Professional Liability
Lisa Rolle – Construction Litigation
Hillary Raimondi – Employment Litigation
Christopher Russo – Professional Liability
Lisa Shrewsberry – Professional Liability
Stephen Straus – Insurance Coverage

Lisa Shrewsberry was also selected to the Top 25: 2024 Westchester County Super Lawyers® list. Read the court decision
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Reprinted courtesy of Traub Lieberman

Federal Arbitration Act Preempts Pennsylvania Payment Act

June 15, 2020 — Wally Zimolong - Supplemental Conditions
I am back. It feels like an entirety since I last posted. But a hellacious trial schedule got me off the blogosphere for some time. Plus, there was nothing to write about. But I am back with a bang thanks to a decision from the Eastern District of Pennsylvania concerning the interplay of a forum selection clause appearing in an arbitration clause in a construction contract and the Pennsylvania Contractor and Subcontractor Payment Act. In Bauguess Electrical Services, Inc. v. Hospitality Builders, Inc., the federal court (Judge Joyner) ruled that the federal arbitration act preempted the Payment Act’s prohibition on forum selection clauses and held that an arbitration must proceed in South Dakota even though the construction project were the work was performed was located in Pennsylvania. The Payment Act applies to all commercial construction projects performed in Pennsylvania. As some you might know, Section 514 of the Payment Act, 73 P.S. 514, prohibits choice of law and forum selection clauses. It states “[m]aking a contract subject to the laws of another state or requiring that any litigation, arbitration or other dispute resolution process on the contract occur in another state, shall be unenforceable.” Therefore, if a construction contract is for a project located in Pennsylvania, Pennsylvania law must apply and all disputes must be adjudicated in Pennsylvania. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES