FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

California Appellate Court Confirms: Additional Insureds Are First-Class Citizens

May 04, 2020 — Scott S. Thomas - Payne & Fears
Many businesses shift risk by requiring others with whom they do business – e.g., vendors, subcontractors, suppliers, and others – to procure insurance on their behalf by making the business an “additional insured” under the other person’s liability insurance policy. Unfortunately, insurance companies sometimes treat these additional insureds as second-class citizens, refusing to acknowledge that the additional insured has the same rights as the policyholder, who paid the premium. In Philadelphia Indemnity Insurance Company v. SMG Holdings, a California appellate court removes any doubt whether these additional insureds are third-party beneficiaries entitled to the same rights – and bound by the same duties – as the entity that bought the policy. While the dispute at issue in SMG Holdings was a narrow one – i.e., whether the additional insured was bound by the policy’s arbitration clause – the implications of its holding are far ranging in ways that, in some instances, may benefit the additional insured. For example, because the additional insured is an intended beneficiary under the policy, neither the insurer nor the policyholder may do anything to impair the additional insured’s rights under the policy; if they do, they may be liable for tortiously interfering with the additional insured’s contract rights. This means that (again, by way of example) if the insurer attempts to rescind, or cancel, or amend the policy in a way that impairs the additional insured’s rights, the additional insured may have recourse. It also means that if the policyholder does something untoward that jeopardizes the additional insured’s rights under the policy, the policyholder may be liable to the additional insured for any resulting harm. Read the court decision
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Reprinted courtesy of Scott S. Thomas, Payne & Fears
Mr. Thomas may be contacted at sst@paynefears.com

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Brooklyn Atlantic Yards Yields Dueling Suits on Tower

September 03, 2014 — Erik Larson – Bloomberg
Forest City Ratner Cos., the initial developer of Brooklyn’s $4.9 billion Atlantic Yards project surrounding Barclays Center arena, exchanged lawsuits with the Swedish construction firm Skanska AB (SKAB) over claims of design flaws and delays in building a stalled residential tower. The lawsuits, filed today in Manhattan state court, focus on a contract for the 34-floor “modular” residential high-rise building under construction next to the arena for the National Basketball Association’s Brooklyn Nets that opened in 2012 as the centerpiece of the former rail yard and a symbol of the New York borough’s resurgence. Skanska, a Stockholm-based firm that has grown to become New York’s second-largest building contractor, seeks at least $50 million in damages for changes to the building that were made without consultation, according to its complaint. Brooklyn-based Forest City Ratner blames Skanska for the project’s problems, citing “tens of millions of dollars” in cost overruns caused by a lack of skill and a failure to adhere to terms of the 2012 contract. Read the court decision
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Reprinted courtesy of Erik Larson, Bloomberg
Mr. Larson may be contacted at elarson4@bloomberg.net

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90 and 150: Two Numbers You Must Know

July 22, 2019 — Christopher G. Hill - Construction Law Musings
Mechanic’s liens are a big topic here at Construction Law Musings. I’ve discussed everything from the picky nature of this powerful payment tool to the changes that are upcoming on July 1, 2019. Given the strict way that the form and timing of a Virginia mechanic’s lien is so critical, I thought a quick reminder was in order. Two numbers that are critical to the timing and content of any mechanic’s lien are 90 and 150, both found in Va. Code 43-4. 90 days is the time from the last date of work (not invoicing), or last date of the last month in which work was done given proper circumstances. The 90 days prescibes the time during which a contractor can properly record a valid lien. This is a hard deadline and is 90 days, not three months. Miss this deadline and no matter what the type of payment that has not been made (something discussed below), the contractor will lose its lien rights. This is the easier of the two numbers to both understand and apply. Count 90 days from last non-corrective or warranty work and that is your hard out for filing. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Real Estate & Construction News Roundup (4/10/24) – Hotels Integrate AI, Baby-Boomers Stay Put, and Insurance Affects Housing Market

May 06, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, DOT’s major grant programs, proptech’s solution to climate change risks, mortgage-locked sellers put their homes on the market, and more!

• The U.S. Department of Transportation opened applications for four major grant programs for infrastructure and transportation projects, totaling about $7.5 billion. (Dan Zukowski, Construction Dive)
• Hotel brands are integrating AI into their operational processes — such as virtual concierges — and working toward sustainability initiatives that accelerate more environmentally friendly practices industry-wide. (Noelle Mateer, Hotel Dive)
• The housing market will soon exit its slowdown, thanks to a growing number of mortgage-locked sellers opting to put their homes on the market, according to JPMorgan Asset Management. (Jennifer Sor, Business Insider)

Read the court decision
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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Don’t Waive Your Right to Arbitrate (Unless You Want To!)

October 19, 2017 — David Adelstein - Florida Construction Legal Updates
Does your construction contract require you to arbitrate (instead of litigate) disputes arising out of the contract? If so, and you want to arbitrate, you do NOT want to do anything inconsistent or adverse with your right to arbitrate. Arbitration can be waived and you do not want arbitration to be waived if you believe this is the best forum to resolve your construction dispute. For instance, actively participating in a lawsuit through the prosecution or defense of issues in the lawsuit is certainly inconsistent with your right to arbitrate. This will result in a waiver of your right to compel arbitration. In a non-construction dispute—a dispute involving a law firm and its former partner—the law firm sued the partner. Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly D2165b (Fla. 2d DCA 2017). There was a partnership agreement that required disputes to be resolved by arbitration. The law firm sued the partner claiming he violated a previously entered employment agreement that did not require arbitration. When the partner counterclaimed, the law firm claimed that the counterclaim must be compelled to arbitration because the counterclaim arose out of the partnership agreement that required arbitration. Guess what? The trial court actually compelled the counterclaim to arbitration! Crazy! Clearly, any employment agreement and partnership agreement were intertwined such that the dispute would involve the same set of facts and any claims would have a significant relationship to the partnership agreement. 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

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Terminating the Notice of Commencement (with a Notice of Termination)

July 19, 2017 — David Adelstein - Florida Construction Legal Updates
The notice of commencement is important for purposes of construction lien priority. Stock Bldg. Supply of Florida, Inc. v. Soares Da Costa Const. Services, LLC, 76 So.3d 313, 317 (Fla. 3d DCA 2011) (“[A] notice of commencement serves to determine the priority of liens under the Construction Lien Law.”). A lien relates back in time to the date the notice of commencement was recorded assuming the notice of commencement is still in effect when the lien is recorded (or an amended noticed of commencement is recorded). Lien priority is very important and the reason why a contractor should always want to ensure there is an effective notice of commencement in place rather than an expired notice of commencement. For the same reasons why a contractor wants to ensure there is an effective notice of commencement, there are times an owner wants to terminate a notice of commencement. An owner may want to terminate the potential priority of a construction lien. For instance, say the owner is refinancing or obtaining a construction loan in the midst of construction. A lender will want to ensure its mortgage maintains first priority and certainly priority over a potential construction lien. Otherwise, why would a lender finance the construction if it does not maintain first priority. It generally will not. Thus, an owner needs to terminate the notice of commencement so that the closing occurs on the loan and the mortgage recorded before a new notice of commencement is recorded and construction continues. 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

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Maritime Law: An Albatross for Contractors Navigating Marine Construction

January 03, 2022 — Cindy Matherne Muller - ConsensusDocs
“Ah! Well a-day! When evil looks, Had I from old and young! Instead of the cross, the Albatross, About my neck was hung.” 1 Contractors and subcontractors performing construction over water may find themselves encountering maritime law for the first time. Like the ancient mariner’s encounter with an albatross in The Rime of the Ancient Mariner, a contractor may be able to use maritime law to safely guide it through rough seas, or, if not careful, a contractor may find itself with maritime law hung, like an albatross, around its neck. This article gives an overview of key maritime law issues to demystify this historical body of law and answers some basic questions. What is admiralty jurisdiction? The Constitution gives federal courts jurisdiction over all maritime cases. This jurisdiction gives litigants the opportunity to remove state court cases to federal court and to avoid a jury trial. The purpose of admiralty jurisdiction in federal court is to protect and ensure the uniform treatment of nationwide maritime commerce and extends to maritime contracts and accidents. Any contract which relates to the navigation, business, or commerce of the sea is a maritime contract. Even contracts with mixed obligations on land and sea can fall within admiralty jurisdiction – such as construction contracts with a waterborne component. Admiralty jurisdiction also extends to maritime accidents – those that occur on navigable waters and have a maritime nexus. Read the court decision
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Reprinted courtesy of Cindy Matherne Muller, Jones Walker LLP
Ms. Muller may be contacted at cmuller@joneswalker.com

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Takeaways From Schedule-Based Dispute Between General Contractor and Subcontractor

September 09, 2024 — David Adelstein - Florida Construction Legal Updates
A recent opinion out of the Southern District of Florida, Berkley Insurance Co. v. Suffolk Construction Co., Case 1:19-cv-23059-KMW (S.D.Fla. July 22, 2024), provides valuable takeaways on schedule-based disputes between a general contractor and subcontractor on a high-rise project. In a nutshell, the general contractor’s original project schedule was abandoned due to project delays and the project wasn’t being built by any updated project schedule. The subcontractor claimed the general contractor was mismanaging the schedule putting unreasonable manpower and supervision constraints on it, i.e., it was working inefficiently. A bench trial was conducted and the Court found in favor of the subcontractor’s arguments. The Court found the general contractor had unrelated delays and that work activities were no longer methodical but, simply, piecemeal demands. The Court also rejected any inadequate manpower arguments finding the subcontract did not place any manpower requirements on the subcontractor. 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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