Fairfield Connecticut Building Expert Directory

Judicial Economy Disfavors Enforcement of Mandatory Forum Selection Clause

December 16, 2023 — David Adelstein - Florida Construction Legal Updates
Mandatory forum (venue) selection provisions are generally construed in favor of enforceability. Parties agreed to the forum for disputes so why not enforce them, right? A recent federal district court case out of the Eastern District of Louisiana exemplifies an exception grounded in judicial economy which disfavors the enforceability of mandatory forum selection provisions. Keep in mind that this judicial economy exception is fairly limited but the fact pattern below demonstrates why enforcing the mandatory forum selection provision was disfavored due to judicial economy. In U.S. f/u/b/o Exposed Roof Design, LLC v. Tandem Roofing, 2023 WL 7688584 (E.D.La. 2023), a sub-subcontractor filed a Miller Act payment bond lawsuit against the prime contractor and the prime contractor’s Miller Act payment bond sureties. The sub-subcontractor also sued the subcontractor that hired it. However, the sub-subcontractor’s subcontract with the subcontractor included a mandatory forum selection provision in a different form. The subcontractor moved to sever and transfer the sub-subcontractor’s claims against it to the forum agreed upon in the subcontract. The trial court denied the severance and the transfer. Below are the reasons. 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

Thank You for 14 Consecutive Years of Legal Elite Elections

December 29, 2020 — Christopher G. Hill - Construction Law Musings
Thanks to the Virginia legal community that has continued to elect me to the Virginia Business Legal Elite in the Construction Law Category for 14 years running. The 14 consecutive years of election to the Legal Elite in the Construction Category spans my time as a solo construction attorney. The fact that you all have continued to elect “100%” of the lawyers at The Law Office of Christopher G. Hill, PC for the last 10 years is most gratifying and only confirms that my decision to “go solo” over 10 years ago was a good one. To be included in this list of top construction attorneys is both humbling and gratifying. For the complete list of the Virginia construction lawyers that were elected along with me, see the 2020 Virginia Business Legal Elite in Construction Law. Reprinted courtesy of The Law Office of Christopher G. Hill Mr. Hill may be contacted at chrisghill@constructionlawva.com Read the full story... Read the court decision
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What You Need to Know About CARB’s In-Use Off-Road Diesel Regulations

May 20, 2024 — Garret Murai - California Construction Law Blog
In November 2022, the California Air Resources Board (CARB) approved amendments to . . . wait for it . . . its “In-Use Off-Road Diesel-Fueled Fleet” regulations – that enough hyphens for you – which took effect on January 1, 2024. The purpose of the regulations is to reduce emissions from off-road equipment, many of which are used by construction contractors, such as forklifts, bulldozers, cranes and excavators. Are these new regulations? Yes and no. CARB has regulated in-use off-road diesel-fueled vehicles since 2008 and has periodically amended these regulations. The most recent amendments take effect on January 1, 2024. What vehicles do the regulations apply to? The regulations apply to two classes of vehicles (1) self-propelled off-road diesel-fueled vehicles of 25 horsepower (hp) or more; and (2) two-engine vehicles other than on-road two-engine sweepers. The regulations apply to both owned as well as rented and leased vehicles. As used in this article, the term “vehicle(s)” refers to these two classes of vehicles. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

New Hampshire’s Statute of Repose for Improvements to Real Property Does Not Apply to Product Manufacturers

April 22, 2019 — Gus Sara - The Subrogation Strategist
In United Services Automobile Association v. Broan-Nutone, LLC, No. 218 2017 CV 01113, [1] the Superior Court of Rockingham County, New Hampshire recently considered whether the eight-year statute of repose for improvements to real property applied to the manufacturer of a ceiling ventilation fan that was installed in the property during its original construction. The court held that New Hampshire’s statute of repose did not apply to the manufacturer because it was not involved in incorporating its product into the property. In 2012, Chad St. Francis purchased a home in Northwood, New Hampshire. The home was originally constructed in 2008, at which time a Broan-Nutone ceiling ventilation fan was installed in the first-floor bathroom. In 2016, a fire occurred at the home. United Services Automobile Association (USAA) provided property casualty insurance for the home and paid Mr. St. Francis for the damage. In 2017, USAA filed a subrogation lawsuit against Broan-Nutone, alleging that its ceiling fan caused the fire due to a design defect within the product. Broan-Nutone filed a motion for summary judgment on grounds that USAA’s action was barred by New Hampshire’s statute of repose for improvements to real property. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams LLP
Mr. Sara may be contacted at sarag@whiteandwilliams.com

Five Frequently Overlooked Points of Construction Contracts

October 18, 2021 — Craig H. O'Neill - White and Williams LLP
There is no shortage of articles addressing the key points of construction contracts. Just enter that phrase into any internet search engine and you will find plenty. It should go without saying that a construction contract should be in writing, it should clearly identify the scope of work to be performed and the sums to be paid for that work, and it should address the parties’ rights and responsibilities with regard to termination or suspension of the contract, correcting defective work, and handling claims and disputes—just to name a few. Of course, these items should receive their due consideration. Too often, however, other important aspects of the construction contract get shortchanged. This article aims the spotlight on five often overlooked aspects of construction contracts. Project Schedules Surprisingly, many construction contracts pay little attention to a central component of any construction project: the project schedule. Many contracts provide the dates of commencement and substantial completion but not much else. With the frequent use of project management techniques such as the Critical Path Method (CPM) and the associated software, it is easier than ever to identify which tasks should be prioritized and identify potential areas of delay. The owner’s contract with the general contractor should clearly define the scheduling methods used and provide measures to keep the parties informed of the progress of the work. By including basic scheduling requirements in the contract documents—such as the submission of “Baseline Project Schedules” (consistent with the contract time provisions), “Schedule Progress Updates” (comparing the progress of the work against the Baseline Project Schedule), and “Schedule Recovery Plans” (when Schedule Project Updates indicate projected delays)—the parties can avoid or reduce disputes over project delays that often lead to litigation. Read the court decision
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Reprinted courtesy of Craig H. O'Neill, White and Williams LLP
Mr. O'Neill may be contacted at oneillc@whiteandwilliams.com

Look Up And Look Out: Increased Antitrust Enforcement Of Horizontal No-Poach Agreements Signals Heightened Scrutiny Of Vertical Agreements May Be Next

November 28, 2022 — John F. Finnegan, III & Dominick Weinkam - ConsensusDocs
In the current regulatory environment, it is important for contractors to remain vigilant of heightened anti-competitive enforcement in the construction and procurement spheres by the United States Department of Justice (DOJ). Such vigilance should include, among other things, regular review of applicable laws and implementation of related updates to compliance policies, as well as careful evaluation of joint venture (JV), subcontractor, and teaming agreements. Recent DOJ Activity Opens The Door To Broader Antitrust Exposure For Contractors Many contractors include exclusivity and non-compete clauses in their vertical agreements, including subcontractor agreements and certain types of JV and teaming agreements. In fact, many widely available “checklists” for drafting these agreements recommend including such provisions; however, under U.S. antitrust law, particularly as enforced by the DOJ in the last 1-2 years, exclusivity and non-compete clauses may be construed as unduly competition-restricting. Although no court has yet held that exclusivity and non-compete clauses in vertical agreements violate antitrust laws, recent aggressive enforcement activity by the DOJ with regard to horizontal no-poach agreements suggests that the investigatory headwinds may be blowing in that direction. Reprinted courtesy of John F. Finnegan, III, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) and Dominick Weinkam, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) Mr. Finnegan may be contacted at jfinnegan@watttieder.com Mr. Weinkam may be contacted at dweinkam@watttieder.com Read the court decision
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NJ Condo Construction Defect Case Dismissed over Statute of Limitations

June 11, 2014 — Beverley BevenFlorez-CDJ STAFF
According to an article by Matthew D. Stockwell of the firm Pillsbury Winthrop Shaw Pittman, LLP published in Lexology, “a trial court in Bergen County, New Jersey dismissed a condominium association's construction defect claims against several construction entities for failure to comply with the applicable statute of limitations.” Stockwell stated that the “aftermath will be interesting to follow, because the trial court stripped away some of the protection that New Jersey's discovery rule affords to property owners who become aware of latent defects well after a project is substantially completed.” Read the court decision
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Amazon Urged to Review Emergency Plans in Wake of Deadly Tornado

June 20, 2022 — Spencer Soper - Bloomberg
Amazon.com Inc. should better prepare workers for extreme weather events, according to federal regulators who investigated a deadly tornado strike on a company warehouse in Edwardsville, Illinois. The storm ripped through the facility in December, killing six workers and injuring several others, prompting the Occupational Safety and Health Administration to launch a probe. At the time, Amazon said the facility complied with all construction regulations and that proper safety procedures were followed when the tornado struck. But several workers told Bloomberg that training for such events was minimal and mostly entailed pointing out emergency exits and assembly points. An OSHA report released on Tuesday echoed those concerns. The agency said a bullhorn that was supposed to be used to tell workers to take cover was locked up in a cage and inaccessible. In interviews with investigators, some employees couldn’t recall ever participating in emergency drills and said they mistakenly took shelter in a bathroom on the south side of the building rather than in designated restrooms on the north side. Read the court decision
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Reprinted courtesy of Spencer Soper, Bloomberg

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