Fairfield Connecticut Building Expert Directory

A Word to the Wise: The AIA Revised Contract Documents Could Lead to New and Unanticipated Risks - Part II

October 16, 2018 — George Talarico - Construction Executive
Part I addressed general conditions, revised insurance terms, revisions that affect owner’s required insurance and revisions that affect contractor’s required insurance. REVISIONS THAT AFFECT DISPUTE RESOLUTION A seemingly minor but noteworthy change is to the definition of “Claim.” Under Section 15.1 a “Claim” is defined to:

include a request for a modification of contract time; and
exclude any requirement that an owner must file a claim to impose liquidated damages.

Notably, any request relating to contract time must be brought within the specified time period for Notice of Claim and in the prescribed manner. There are at least two traps for the unwary. First, even though email is regularly used for communications among the parties, the revised contract documents do not recognize email as an acceptable form of delivery of a Notice of Claim. Second, an unwary contractor may wrongly assume that an owner’s failure to assert a claim for LDs means that LDs will not be imposed. This may lull the contractor into failing to timely assert its own claim for a time extension and thereby waiving its ability to do so. Reprinted courtesy of George Talarico, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Talarico may be contacted at gtalarico@sillscummis.com

The Independent Tort Doctrine (And Its Importance)

October 24, 2022 — David Adelstein - Florida Construction Legal Updates
A non-construction raises an important legal principle. Here it is because it applies to construction disputes. It actually applies to many business-type disputes. It is based on what is widely referred to as the independent tort doctrine: Florida law does not allow a party damaged by a breach of contract to recover exactly the same contract damages via a tort claim. “It is a fundamental, long-standing common law principle that a plaintiff may not recover in tort for a contract dispute unless the tort is independent of any breach of contract. A plaintiff bringing both a breach of contract and a tort claim must allege, in addition to the breach of contract, “some other conduct amounting to an independent tort.” Bedoyan v. Samra, 47 Fla.L.Weekly D1955a (Fla. 3d 2022) (internal citations omitted). 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

Changing Course Midstream Did Not Work in River Dredging Project

December 10, 2015 — Craig Martin – Construction Contractor Advisor
A contractor learned a $12M lesson when it tried to change course on a Corps of Engineer river dredging project. The case also illustrates the importance of documenting problems on a project and providing notice of those problems to the owner. In Weston/Bean Joint Venture v U.S., Weston/Bean was awarded a Corps of Engineers project to provide maintenance dredging on the Miami River to a depth of 15 feet. The contract noted that the contractor may experience sediment, debris and rock, including soft to moderately hard limestone. The contractor encountered rocks early on in the project, but consistently submitted reports to the Corps of Engineers that nothing was experienced on the project that would lead to a change order or claim. And, for the first year of operations, the contractor made no claim for differing site conditions. Instead, the contractor terminated the subcontractor for not being able to process the rock uncovered during the dredging process. 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

Defective Stairways can be considered a Patent Construction Defect in California

September 24, 2014 — William M. Kaufman – Construction Lawyers Blog
Stairs are not safe! At least the Court of Appeal in the Second Appellate District of California doesn’t think so. A rail station in Los Angeles was completed by the Los Angeles County Metropolitan Transportation Authority (“MTA”) in 1993. The rail station was part of the development of the Southern California Rapid Transit District Metro Rail Project. In 2011, the plaintiff fell on a stairway at the station. In August 2012, Plaintiff sued the MTA for dangerous condition of public property, statutory liability, and negligence. Among other defects, plaintiff alleged the banister of the stairwell was “too low” and the stairwell “too small” given the number, age, and volume of people habitually entering and exiting the rail station. In addition, plaintiff alleged that MTA “failed to provide adequate safeguards against the known dangerous condition by, among other acts and omissions, failing to properly design, construct, supervise, inspect and repair the Premises causing the same to be unsafe and defective for its intended purposes.” MTA, in turn, cross-complained against Hampton- the entity that provided design and construction services at the station. Hampton demurred to the first amended cross-complaint, asserting a four year statute of limitations defense pursuant to California Code of Civil Procedure section 337.1, claiming the alleged deficiencies were patent defects. On September 11, 2013, the trial court overruled the demurrer finding that the defect was not patent. Hampton appealed. The appellate court overruled the trial court’s ruling and in fact, granted Hampton’s writ of mandate and even directed the trial court to sustain the demurrer without leave to amend! (Delon Hampton & Associates v. Sup. Ct. (Los Angeles County Metropolitan Transportation Authority) (Cal. App. Second Dist., Div. 3; June 23, 2014) 227 Cal.App.4th 250, [173 Cal.Rptr.3d 407].) The appellate court found that the purpose of section 337.1 is to “provide a final point of termination, to proctect some groups from extended liability.” A “patent deficiency” has been defined as a deficiency which is apparent by reasonable inspection. See Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1336. The court found a patent defect can be discovery by the kind of inspection made in the exercise of ordinary care and prudence, whereas a latent defect is hidden and would not be discovered by a reasonably careful inspection. See Preston v. Goldman (1986) 42 Cal.3d 108, 123. The test to determine whether a construction defect is patent is an objective test that asks “whether the average consumer, during the course of a reasonable inspection, would discover the defect…” See Creekbridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256. Mr. Kaufman may be contacted at wkaufman@lockhartpark.com, and you may visit the firm's website at www.lockhartpark.com Read the court decision
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Reprinted courtesy of William M. Kaufman, Lockhart Park LP

More on Duty to Defend a Subcontractor

March 29, 2021 — Christopher G. Hill - Construction Law Musings
While we don’t often discuss insurance coverage issues here at Construction Law Musings, occasionally a case comes up that makes the grade for a post. One such case was Erie Insurance Exchange v. Salvi, where the question of an “occurrence” that warranted coverage and defense under an insurance policy was at issue. That case discussed this key question in a residential construction context based upon poor workmanship. A recent case out of the Western District of Virginia federal court analyzed this coverage issue in the commercial context. In Nautilus Ins. Co. v. Strongwell Corp., the Court considered a challenge by the insurance company, Nautilus, to its duty to defend based on both the definition of “occurrence” and the definition of “property damage.” Nautilus filed a declaratory judgment action seeking a declaration that it need not either defend or indemnify because the extrinsic evidence (as distinguished from the “eight corners” of the policy) precluded coverage for the types of claims made by an owner and by extension a general contractor in a separate lawsuit. 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

Toddler Crashes through Window, Falls to his Death

January 24, 2014 — Beverley BevenFlorez-CDJ STAFF
Two-year old Alijah Glenn fell 17 stories to his death after crashing through “a floor-to-ceiling window” at the Crystal Tower apartments in East Cleveland, Ohio, on January 13th, according to The Plain Dealer. Solandra Wallace, East Cleveland’s building and housing manager, told The Plain Dealer that “the city inspects the building whenever a complaint is filed and does not have regular inspections.” The apartment complex “was built in 1966 and would have to adhere to that era's building code standards,” according to the article. The Plain Dealer reports that three complaints have been filed at the Crystal Tower since 2010. A resident complained in 2012 that “her apartment was falling apart, causing water damage and emitting a foul odor,” however, by the time an inspector arrived the ceiling was being fixed. In 2011, an “unspecified roof leak” turned out to be “condensation from a hot pipe.” An elevator was reported inoperable in 2010, however the claim was deemed “invalid” since the elevator worked when inspectors arrived. The Cuyahoga County Medical Examiner ruled Glenn’s death accidental. Read the court decision
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How Mansions Can Intensify Wildfires

May 30, 2022 — Todd Woody - Bloomberg
A neighborhood of $4 million homes that burned Wednesday in a Southern California wildfire highlights the vulnerability of large suburban dwellings to climate-driven blazes, according to fire experts. The Coastal Fire destroyed at least 20 homes in a gated community in Laguna Niguel, a wealthy Orange County enclave near Laguna Beach. Houses in the Coronado Pointe development line a ridge overlooking the Pacific Ocean. Homes in the neighborhood are palatial, ranging in size from about 4,000 square feet to 10,000 square feet, and sit on large lots with room for swimming pools with coastal views. But the mansions are wedged together with relatively little space between buildings. When a fire broke out near a wastewater treatment plant on Wednesday, it raced up a chaparral-covered hillside until it encountered an explosive source of fuel – Coronado Pointe. Read the court decision
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Reprinted courtesy of Todd Woody, Bloomberg

Insurer's Summary Judgment Motion on Business Risk Exclusions Fails

November 15, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The insurer unsuccessfully moved for summary judgment on the CGL policy's business risk exclusions. Scottsdale Ins. Co. v. TL Spreader, LLC, (W.D. La. Oct. 20, 2017). Helena Chemical Company contracted with its customer Wild Farms to sell and apply certain herbicides and pesticides to Wild Farms' 123 acre rice filed. Helena subcontracted the TL Spreader, LLC (TLS) to apply the chemicals to Wild Farm's rice field. The TLS employee failed to properly neutralize a chemical being used in the spray. TLS finished its work on May 6, 2014, completing all its work for Helena's contract with Wild Farms. Three days after completion of the spraying, the rice crop first began to exhibit physical damage in the form of abnormal stunting, lesions, yellowing and death. 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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