Fairfield Connecticut Building Expert Directory

Making the Construction Industry a Safer place for Women

February 22, 2018 — Laura Parsons - CDJ STAFF
Women make up 47 percent of the total U.S. workforce yet they only hold approximately 9 percent of construction jobs nationwide. Because of this minority, women endure health and safety issues that men usually don’t, according to Safety.BLR.com’s article “OSHA renews alliance to protect women in construction.” The main areas that women face problems in the construction industry are healthy, safety and workplace culture. Women are potentially exposed to sexual harassment, demeaning remarks, and bodily assaults. Most of personal protective equipment (PPE) and tools are made for the typical male body to use and operate and are too heavy or oversized for many women. The National Association of Women in Construction (NAWIC) partnered with OSHA in 2013 and just renewed their alliance aiming to improve upon workplace intimidation and violence as well as sanitation and PPE. The partnership is committed “to providing NAWIC members and others with information, guidance, and access to training resources that will help them protect the health and safety of workers, and understand the rights of workers and the responsibilities of employers under the Occupational Safety and Health Act (OSH Act).” This will be achieved by the implementation of national rules, laws, and standards as well as the circulation of preventative information. Read the court decision
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No Occurrence Found for Damage to Home Caused by Settling

October 22, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Nebraska Supreme Court found the insurer properly denied coverage to the general contractor for damage to a home caused by settlement. Cizek Homes, Inc. v. Columbia Nat. Ins. Co., 2014 Neb. LEXIS 152 (Neb. Sept. 9, 2014). The general contractor built and then sold the residence. Subsequently, the homeowners complained that the soil beneath their residence was settling and causing damage to their home. The homeowners presented a draft complaint to the general contractor, alleging that negligence and faulty workmanship had caused damage to the home. The general contractor notified its carrier, Columbia. Coverage was denied. 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

In All Fairness: Illinois Appellate Court Finds That Arbitration Clause in a Residential Construction Contract Was Unconscionable and Unenforceable

August 22, 2022 — Gus Sara - The Subrogation Strategist
In Bain v. Airoom, LLC, No. 1-21-001, 2022 Ill. App. LEXIS 241, the Appellate Court of Illinois (Appellate Court) considered whether the lower court erred in enforcing an arbitration clause in a construction contract between the parties and, as a result, dismissing the plaintiff’s lawsuit. The Appellate Court found that even if the arbitration clause was enforceable, the appropriate action would have been for the court to stay the lawsuit, as opposed to dismissing the case entirely. The Appellate Court then considered the language of the arbitration clause and found that several provisions were substantively unconscionable, which rendered the entire arbitration clause unenforceable. The Appellate Court reversed the lower court’s decision compelling arbitration and reinstated the plaintiff’s complaint. In 2018, the plaintiff, Ms. Bain, a disabled senior citizen, hired the defendant, Airoom, LLC (Airoom), to renovate her home. Airoom provided its “Cash Sales Contract,” which included a binding arbitration clause. The clause required that any dispute arising or relating to the contract be resolved by binding arbitration through the American Arbitration Association (AAA), using the Construction Industry Arbitration Rules and Mediation Procedures (Construction Industry Rules). 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

Killer Subcontract Provisions

January 20, 2020 — Patrick McNamara - Porter Law Group
We are frequently requested by subcontractor clients to review the subcontract that has been prepared by the prime contractor, before our client signs it. While no two agreements are identical, there are a number of problematic contract provisions that appear in many agreements. Here is a list of ten such provisions (and their variations) that are potential “deal breakers”:

PAY IF/WHEN PAID (e.g. “Contractor shall have the right to exhaust all legal remedies, including appeals, prior to having an obligation to pay Subcontractor.”) “Pay-if-paid” provisions (“Receipt of payment from Owner shall be a condition precedent to Contractor’s duty to pay Subcontractor”) are illegal in California. However, the only legal limit on “Pay-When-Paid” provisions is that payment must be made “within a reasonable time.” The example above, as written, essentially affords the prime contractor a period of several years following completion of the project before that contractor has an independent duty to pay its subcontractors – not a “reasonable” amount of time, to those waiting to be paid. A compromise is to provide a time limit, such as 6 months or one year following substantial completion of the project.
CROSS-PROJECT SET-OFF (e.g. “In the event of disputes or default by Subcontractor, Contractor shall have the right to withhold sums due Subcontractor on this Project and on any other project on which Subcontractor is performing work for Contractor.”) Such provisions are problematic and likely unenforceable, as they potentially bar subcontractors’ lien rights. Such provisions should be deleted.
CONTRACTOR/SUBCONTRACTOR RESPONSIBILITY FOR DESIGN QUALITY (e.g. “Subcontractor warrants that the Work shall comply with all applicable laws, codes, statutes, standards, and ordinances.”) Unless a subcontractor’s scope of work expressly includes design work, this provision should either be deleted or modified, with the addition of the following phrase: “Subcontractor shall not be responsible for conformance of the design of its work to applicable laws, codes, statutes, standards, and ordinances.”

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Reprinted courtesy of Patrick McNamara, Porter Law Group
Mr. McNamara may be contacted at pmcnamara@porterlaw.com

Specific Performance of an Option Contract to Purchase Real Property is Barred Absent Agreement on All Material Terms

December 20, 2017 — Richard H. Herold - Real Estate Litigation Blog
On November 14, 2017, the Court of Appeals (Division 1), in Offerman v. Granada, LLC, 2017 WL 5352664, reversed a trial court order directing specific performance of an alleged option to purchase real property, holding that the alleged option was too indefinite to be specifically performed because the parties did not agree to all of the material terms of the option. Tenant-Purchaser Offerman executed a two-year lease with Landlord-Seller Granada, which granted Offerman “the option to purchase [the] property…for a sales price to be determined at that time by an independent appraiser acceptable to both Tenant and Landlord. (Terms and Conditions to be stipulated by both parties at such time).” (emphasis added). Offerman timely advised Granada he intended to exercise the option, asked Granada to name an appraiser, and, when Granada did not respond, Offerman tendered a $240,000 appraisal to exercise the option. Granada did not retain an appraiser but instead simply demanded $350,000 to close the sale. After a bench trial, the Court determined that Offerman was entitled to specific performance, and, as the parties had not agreed to certain terms, held a second evidentiary hearing to resolve the form of judgment, therein naming a title agency to handle the escrow, setting a closing date, allocating the transaction fees between the parties, and ordering Granada to pay for the property inspection. Read the court decision
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Reprinted courtesy of Richard H. Herold, Snell & Wilmer
Mr. Herold may be contacted at rherold@swlaw.com

Floating Crane on Job in NYC's East River Has a Storied Past of Cold War Intrigue

March 22, 2017 — Nadine M. Post – Engineering News-Record
The complex maneuver of lifting heavy prefabricated modules out of New York City's East River to build a university laboratory took careful planning and the work of one particular floating crane with a complicated past. Read the court decision
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Reprinted courtesy of Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com

Understanding the Details: Suing Architects and Engineers Can Get Technical

November 02, 2017 — Steven M. Cvitanovic & Stephen M. Tye - Haight Brown & Bonesteel LLP
Before suing an architect or engineer for professional negligence, a plaintiff must obtain a “certificate of merit” (“Certificate”) under Code of Civil Procedure section 411.35. Boiled down to the basics, the Certificate declares that the attorney consulted with and received an opinion from an expert that a reasonable and meritorious case exists against said design professional. The Certificate must be filed before serving the complaint on any defendant, but can be filed within 60 days under certain circumstances. This rule was recently analyzed against another long-standing rule in California, known as the “relation-back doctrine.” Under the relation-back doctrine, a court will deem a later-filed pleading, such as an amended complaint, to be deemed filed at the time of an earlier complaint. In Curtis Engineering Corp. v. Superior Court of San Diego County, No. D072046, (Cal. Ct. App. 10/23/17), the Fourth Appellate Court considered the interplay between section 411.35 and the relation-back doctrine, holding that a Certificate filed more than 60 days after filing the original pleading does not relate back to the filing of the original pleading. Reprinted courtesy of Steven Cvitanovic, Haight Brown & Bonesteel LLP and Stephen Tye, Haight Brown & Bonesteel LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com Mr. Tye may be contacted at stye@hbblaw.com Read the court decision
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The Economic Loss Rule and the Disclosure of Latent Defects: In re the Estate of Carol S. Gattis

January 15, 2014 — Brady Iandiorio - Higgins, Hopkins, McLain & Roswell, LLC
In a recent case of first impression, the Colorado Court of Appeals determined that the economic loss rule does not bar a nondisclosure tort claim against a seller of a home, built on expansive soils which caused damage to the house after the sale. The case of In re the Estate of Carol S. Gattis represents a new decision regarding the economic loss rule. Because it is a case of first impression, we must wait to see whether the Colorado Supreme Court grants a petition for certiorari. Until then, we will analyze the decision handed down on November 7, 2013. The sellers of the home sold it to an entity they controlled for the purpose of repairing and reselling the home. Before that purchase, Sellers obtained engineering reports including discussion of structural problems resulting from expansive soils. A structural repair entity, also controlled by Sellers, oversaw the needed repair work. After the repair work was completed, Sellers obtained title to the residence and listed it for sale. Sellers had no direct contact with Gattis, who purchased the residence from Sellers. The purchase was executed through a standard-form real estate contract, approved by the Colorado Real Estate Commission: Contract to Buy and Sell Real Estate, to which no changes were made. Several years after taking title to the residence, Gattis commenced action, pleading several tort claims alleging only economic losses based on damage to the residence resulting from expansive soils. Read the court decision
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Reprinted courtesy of Brady Iandiorio, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Iandiorio may be contacted at iandiorio@hhmrlaw.com

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES