Fairfield Connecticut Building Expert Directory

Recording a Lis Pendens Is Crucial

January 04, 2023 — David Adelstein - Florida Construction Legal Updates
If you are in a construction dispute where you are pursuing a construction lien foreclosure action, recording a lis pendens is crucial. Did I say crucial? “[O]ne purpose of a notice of lis pendens is to alert all others that title to the property is involved in litigation and that ‘future purchasers or encumbrancers of that property’ are at risk of being bound by an adverse judgment.” Henry v. AIM Industries, LLC, 47 Fla.L.Weekly D653b (Fla. 2d DCA 2022). There really is never a reason not to record a lis pendens when pursing a construction lien foreclosure. Please remember that – don’t forget to record the lis pendens! There are times a lis pendens is recorded when the lis pendens is NOT based on a duly recorded instrument (e.g., construction lien or mortgage). A lis pendens, however, is recorded because the dispute is tied to the property in which the lis pendens is being recorded. The lis pendens is recorded to best safeguard the plaintiff’s interest in the real property without fear that the real property will be sold impacting the purpose (and, of course, security) of the lawsuit. 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

Chinese Billionaire Sues Local Governments Over Project Payment

January 28, 2015 — Bloomberg News
The billionaire founder of closely held China Pacific Construction Group sued six local governments in a bid to force payment of 900 million yuan ($144 million) his company is owed for infrastructure projects. Yan Jiehe said today he was trying to prove a point and winning the lawsuits wasn’t his main goal. Courts in Hebei, Yunnan, Guizhou, Hunan and Shandong provinces accepted the cases, he said in an interview. “We cannot let the governments work without any supervision anymore,” Yan said. “The results of the lawsuits are not that important to me and I care more about rule of law.” Read the court decision
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Reprinted courtesy of Bloomberg News

Is the Removal and Replacement of Nonconforming Work Economically Wasteful?

September 19, 2022 — David Adelstein - Florida Construction Legal Updates
There are times a contractor installs the wrong material or system contrary to the plans and specifications. A nonconformity. The owner wants the already-installed material or system to be replaced in conformity with the plans and specifications. However, what was installed is functionally equivalent to what the plans and specifications required and would be cost prohibitive, i.e., economically wasteful. If the contractor elects to remove and replace the nonconforming work, it may seek a change order because it is economically wasteful. Or, the contractor may refuse (typically, not the best approach) in furtherance of taking on the fight based on the economic wastefulness associated with the removal and replacement. A recent case, David Boland, Inc. v. U.S., 2022 WL 3440349 (Fed.Cl. 2022), talks about this exaction situation and the economic waste doctrine. This is an important doctrine for contractors to understand when faced with a similar predicament. Here, a contractor was hired by the government to construct a wastewater collection system that was to be owned and operated by a private company. The contractor’s work was going to be incorporated into a larger sewer system that the private company already operated. The contractor was required to install sewer manholes reinforced with steel in accordance with an ASTM standard. The manholes could be rejected if they did not conform to the ASTM standard. Compliance with this ASTM standard was also required by the private company’s construction protocol for the infrastructure, which was incorporated into the contractor’s contract with the government. The contractor was required to strictly comply with the contract. 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

Insurance Coverage for COVID-19? Two N.J. Courts Allow Litigation to Proceed

March 06, 2022 — Bethany L. Barrese - Saxe Doernberger & Vita, P.C.
Courts across the nation have struggled to determine whether insurance policies that provide coverage for “direct physical loss or damage” insure losses stemming from COVID-19. Many courts have been applying an overly stringent pleading standard, inappropriately granting insurers’ motions to dismiss as a result of the insureds’ purported failure to allege that COVID-19 caused damages covered by their policies or because certain exclusions supposedly barred coverage. However, two New Jersey state courts recently decided these issues in favor of the insureds in well-reasoned opinions that give proper deference to procedural pleading standards and substantive insurance coverage law. A. COVID-19 causes “direct physical loss or damage” In AC Ocean Walk, LLC v. American Guarantee and Liability Ins. Co., the New Jersey Superior Court held that physical alteration to an insured’s property is not a prerequisite to coverage for losses due to COVID-19. The insured, Ocean Casino, sued multiple insurers for COVID-19 losses, alleging that the virus caused Ocean Casino to shut down and suffer a loss of use of its property. Looking at the language of the policies, the court explained that each policy’s insuring agreement substantially read the same:

“This policy insures against direct physical loss of, or damage caused by, a covered cause of loss to covered property, at an insured location [the casino] … subject to the terms, conditions, and exclusions stated in this policy.”

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Reprinted courtesy of Bethany L. Barrese, Saxe Doernberger & Vita, P.C.
Ms. Barrese may be contacted at BBarrese@sdvlaw.com

Be Careful With Construction Fraud Allegations

April 06, 2016 — Christopher G. Hill – Construction Law Musings
Here at Construction Law Musings we have discussed the intersection of contracts, construction and fraud on several occasions. We’ve even discussed how such fraud can bleed over from the civil to the criminal. Recently, the Virginia Supreme Court weighed in again on the question of construction fraud and criminal allegations. In O’Connor v. Tice, the Court discussed a malicious prosecution action brought by a contractor against owners of a commercial building. In O’Connor, the owners and the contractor got into a disagreement over alleged damage to the roof of the owners’ building and who was responsible. In response to this disagreement, the owners contacted the local sheriff’s office, accusing the contractor of construction fraud, and then wrote a “15 day letter” to the contractor outlining the criminal consequences should he fail to pay the damages sought in the owners civil lawsuit. Subsequently, a criminal warrant was issued against the contractor based solely upon the word of the owners. This last occurred at the insistence of the owners (who did not inform the sheriff’s deputy or the Commonwealth Attorney that they’d had this conversation or that the contractor had partially performed) after they discussed the matter with the contractor’s attorney and were informed that any claim that they may have had was civil in nature. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Construction Law Musings
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Estimate Tops $5.5B for Cost of Rebuilding After Maui Fires

August 21, 2023 — James Leggate - Engineering News-Record
Rebuilding after wildfires on the island of Maui in Hawaii could cost more than $5.5 billion, according to a preliminary assessment prepared by the University of Hawaii Pacific Disaster Center and local officials. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Bankrupt Canada Contractor Execs Ordered to Repay $26 Million

April 25, 2022 — Scott Van Voorhis - Engineering News-Record
John Aquino, the former president of a major and now bankrupt Ontario construction contractor, plans to appeal a provincial court ruling that puts him and his associates on the hook for $26.2 million drained from the company, according to his attorney. Reprinted courtesy of Scott Van Voorhis, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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No Coverage Based Upon Your Prior Work Exclusion

October 01, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The California Court of Appeal affirmed the trial court's determination of no coverage for construction defects based upon the policy's prior work exclusion. Yu v. Landmark Am. Ins. Co., 2014 Cal. App. Unpub. LEXIS 5966 (Cal. Ct. App. Aug. 22, 2014). Plaintiff was the owner and developer of a hotel. She contracted with ATMI Design Build to act as general contractor to construct the hotel. C&A Framing Company was a subcontractor to provide rough framing for the project. In May 2003, ATMI fired C&A before it had completed all the work required by the subcontract. After May 2003, C&A never returned to the construction site. Notice of Completion for the project was recorded April 15, 2004. In September 2004, Landmark issued to C&A a CGL policy for the period September 18, 2004 to September 18, 2005. The policy was later cancelled, effective January 14, 2005. The policy contained an endorsement entitled, "Exclusion - Your Prior Work." The exclusion barred coverage for "'property damage' arising out of 'your work' prior to 9/18/04." 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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