Fairfield Connecticut Building Expert Directory

Colorado Supreme Court Weighs in on Timeliness of Claims Against Subcontractors in Construction Defect Actions

March 16, 2017 — Jean Meyer - Colorado Construction Litigation
On February 27, 2017, the Colorado Supreme Court announced its decision in the Goodman v. Heritage Builders, No. 16SA193, 2017 CO 13 (Colo. February 27, 2017) case. In ten short pages, the Colorado Supreme Court completely reshuffled Colorado construction law with respect to application of the statutes of limitation and repose on third-party claims in construction defect cases. Specifically, the Colorado Supreme Court overruled a series of earlier Court of Appeals' decisions that found C.R.S. § 13-80-104(1)(b)(II) (“104(1)(b)(II)”) had no effect on the six-year statute of repose. For context, 104(1)(b)(II) permitted third-party actions for indemnity and contribution to toll until ninety days after the claims in the underlying action were resolved by settlement or judgment. In the construction context, 104(1)(b)(II) was intended to allow a general contractor’s claims against liable subcontractors to toll for the statutorily defined period. This allowed the general contractor to first focus its attention on defending the claims against and thereafter to pursue its claims against the subcontractors. However, beginning in 2008, in the Thermo Dev., Inc. v. Cent. Masonry Corp., 195 P.3d 1166 (Colo. App. 2008) case, the Colorado Court of Appeals began chipping away at the force of 104(1)(b)(II). This trend continued in the Shaw Constr., LLC v. United Builder Servs., Inc., 2012 COA 24, 296 P.3d 145 decision, the Sierra Pac. Indus., v. Bradbury, 2016 COA 132, _ P.3d_ decision, and culminating in the Sopris Lodging, LLC v. Schofield Excavation, Inc., 2016 COA 158, reh'g denied (Nov. 23, 2016) decision. Effectively, in these decisions, the Colorado Court of Appeals determined that third-party claims could not be brought beyond Colorado’s six-year statute of repose, regardless if they were brought within the ninety day tolling provision set forth in 104(1)(b)(II). Read the court decision
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Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Meyer may be contacted at meyer@hhmrlaw.com

Difficulty in Defending Rental Supplier’s Claim Under Credit Application

October 11, 2021 — David Adelstein - Florida Construction Legal Updates
In construction, one of the easiest claims to prove from a burden of proof standpoint is that of a supplier, particularly a rental equipment supplier. Oftentimes, these claims are more in the realm of a collection claim because a rental supplier will generally be able to establish that a party opened an account with them, signed a credit application and personal guaranty, and equipment was rented and even delivered to a specific jobsite during set dates. Defending these claims is not so easy. And even if there is a defense as it relates to some amounts, there needs to be an upside challenging those amounts when factoring in the attorney’s fees, costs, and interest on the other amounts and on continuing the dispute. An example of the difficulty in defending these claims from rental suppliers can be found in the recent case of Custom Design Expo, Inc. v. Synergy Rents, Inc., 2021 WL 4125806 (Fla. 2d DCA 2021). Here, a contractor rented equipment (e.g, forklifts) from a supplier. The equipment was rented on an open account and the contractor signed a personal guaranty. The supplier sued the contractor for about $81,000 that remained unpaid. The supplier appeared to waste no time and moved for summary judgment with an affidavit from its credit manager. The credit manager affirmed that the contractor executed a credit application for purposes of renting equipment on an open account, the application contained a personal guaranty, and the credit application formed the basis of a contract. The credit manager authenticated the credit application and affirmed that the contractor owed it about $81,000 in unpaid amounts for rental equipment that was furnished under the credit application. 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

Quick Note: Charting Your Contractual Rights With Respect To The Coronavirus

April 06, 2020 — David Adelstein - Florida Construction Legal Updates
As more and more information is being learned, and more and more industries are being impacted, it is likely that the construction industry will follow suit. And, while impacts with the global supply chain may not yet be realized, impacts could begin with labor supply and, frankly, employers’ safety protocols dealing with the coronavirus. One suggestion that should be implemented is a detailed chart, similar to the below, where you are charting rights and obligations under your contracts dealing with force majeure, notice, and project suspensions. This is step one to make sure you are making prudent decisions, preserving rights, and making sure contractual obligations are being met. Be proactive, not reactive. 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

Workers on Big California Bridge Tackle Oil Wells, Seismic Issues

February 02, 2017 — Aileen Cho - Bloomberg
Surrounded by workers, Nik Pecci, project safety manager with PMCM Consulting Engineers for the $1.5-billion Gerald Desmond Bridge replacement project—which is revitalizing a 50-year-old link in Long Beach—gestured in several directions: “I’ve got all these [port] tenants here, I’ve got a massive bridge over here. I have to build this thing intertwined with one of the busiest ports in the world. I constantly have commuters, cargo trucks and trailers and trains.” Read the court decision
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Reprinted courtesy of Aileen Cho, ENR
Ms. Cho may be contacted at choa@enr.com

The New “White Collar” Exemption Regulations

August 19, 2015 — Craig Martin – Construction Contractor Advisor
This summer the Department of Labor’s Wage and Hour Division issued proposed changes to the white-collar overtime regulations under the Fair Labor Standards Act (FLSA). The white collar exemptions include the executive, administrative, professional, outside sales and computer employee exemptions. The focus of the proposed regulations is to increase the salary level required to qualify for the exemption from $23,660 per year to $50,440 per year. The DOL predicts this will cause employers to change the exempt status of nearly 5 million workers who are currently exempt from overtime requirements to non-exempt status – requiring the payment of overtime. Current Regulations Under today’s regulations, the white collar exemption applies to employees who are paid at least $455 per week ($23,660 per year) and who customarily and regularly perform any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee. Proposed Changes The most significant change is the sizeable increase in the minimum salary requirements for the exemptions. The proposed regulations more than double the current minimum salary of $455 per week to $921. This corresponds to the 40th percentile of weekly earnings projected for the first quarter of 2016, based on the Bureau of Labor Statistics. The DOL also proposes annual adjustments to the minimum salary requirements. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Five-Year Statute of Limitations on Performance-Type Surety Bonds

December 01, 2017 — David Adelstein - Florida Construction Legal Updates
The statute of limitations on a claim against a performance-type bond is 5 years from the breach of the bond, i.e., the bond-principal’s default (based on the same statute of limitations that governs written contracts / obligations). See Fla. Stat. s. 95.11(2)(b). This 5-year statute of limitations is NOT extended and does NOT commence when the surety denies the claim. It commences upon the default of the bond-principal, which would be the act constituting the breach of the bond. This does not mean that the statute of limitations starts when a latent defect is discovered. This is not the case. In dealing with a completed project, the five-year statute of limitations would run when the obligee (beneficiary of the bond) accepted the work. See Federal Insurance Co. v. Southwest Florida Retirement Center, Inc., 707 So.2d 1119, 1121-22 (Fla. 1998). This 5-year statute of limitations on performance-type surety bonds has recently been explained by the Second District in Lexicon Ins. Co. v. City of Cape Coral, Florida, 42 Fla. L. Weekly D2521a (Fla. 2d DCA 2017), a case where a developer planned on developing a single-family subdivision. 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

He's the Top U.S. Mortgage Salesman. His Daughter Isn't Buying It

July 16, 2014 — Lorraine Woellert – Bloomberg
David Stevens, chief executive officer of the Mortgage Bankers Association, has spent his career lauding the merits of homeownership. One person still isn’t buying it: his daughter. Sara Stevens, 27, knows interest rates are low, rents are high and owning a home can build wealth. She also had a front-row seat to the worst real-estate slump since the Great Depression. “The world has changed,” she said. Six years since the collapse of Lehman Brothers triggered a financial meltdown, some young adults are more risk averse and view the potential upsides of status and wealth more skeptically than before the crisis, altering the homeownership calculation. It’s more than the weight of student loans, an iffy job market and tight credit -- even those who can buy are hesitant. Read the court decision
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Reprinted courtesy of Lorraine Woellert, Bloomberg
Ms. Woellert may be contacted at lwoellert@bloomberg.net

The Woodland Hills Office Secures a Total Defense Award on Behalf of their High-End Custom Home Builder Client!

June 04, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Partner Daniel Crespo and Associate Theresa Mallen secured a total defense award in arbitration. Our client is a high-end custom home builder with a decades-long flawless record of museum quality construction. Our client was accused of performing substandard construction and the homeowners asserted a multiple million-dollar cost of repair. We took a zero-liability position and argued that the alleged defects were not defects at all but were rather mere reflections of an incomplete project. In sum, our client was forced to terminate the contract and cease construction due to the homeowners’ failure to make progress payments as they became due. The arbitration endured 16 days of testimony scattered over the course of 7 months. Ultimately, the arbitrator ruled that there were no construction defects at the project and that the homeowners “shall take nothing.” The arbitrator also ruled in favor of our client on its affirmative claim for monies owed by the homeowners’ breach of contract plus interest. A total victory for our client. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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