FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Evacuations in Santa Barbara County as more Mudslides are Predicted

March 14, 2018 — Dave Suggs – CDJ Staff
Alene Tchekmedyian’s LA times article “Storm triggers evacuations in Santa Barbara County: 'Don't be fooled into thinking that this can’t happen again',” warns of the deadly potential of mudslides following the devastation that occurred in January that caused 21 fatalities and damaged homes in Montecito. Debris flow could be triggered by rainfall rates predicted to exceed half and inch per hour. In some areas as much as seven-tenths of an inch of rain per hour are possible because of a chance of thunderstorms. Mandatory evacuations began Monday to protect residents from the fast-moving storm that is predicted to be worse than January’s. Santa Barbara county officials asked that people help spread the word of the evacuation to everyone in their community. They also created an interactive map to help residents determine their risk level. Matilija Canyon and North Fork in Ventura County are under voluntary evacuation orders. Areas at the highest risk include Thomas, Sherpa, and Whittier burn areas. Residents can find shelter at the Goleta Valley Community Center at 5679 Hollister Avenue. Read the court decision
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Wood Product Rotting in New Energy Efficient Homes

January 13, 2014 — Melissa Zaya-CDJ STAFF
Brad Pitt’s Make It Right Foundation may be filing a suit against TimberSIL, a wood manufacturer, as reported by WRAL. The foundation built 100 new homes in the 9th Ward of New Orleans after Hurricane Katrina, and used the TimberSIL wood in 30 of the homes for decks and stairs. Make It Right spokeswoman Taylor Royle told Richard Thompson of WRAL that they chose TimberSIL because of the absence of chemicals, which will allow the wood to be mulched and composted after it has served its purpose. However, Royle claimed that the wood has begun to rot “despite being guaranteed for 40 years,” according to WRAL. She further alleged that the manufacturer failed to respond to any of the foundation’s attempts to discuss reimbursement of their costs under the forty year product warranty. Read the court decision
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Conflict of Interest Accusations may Spark Lawsuit Against City and City Manager

February 07, 2014 — Beverley BevenFlorez-CDJ STAFF
Casper, Wyoming Councilman Craig Hedquist—who is also owner of Hedquist Construction—has been “accused of violating state and local conflict-of-interest laws,” according to the Star-Tribune. In response, Hedquist “is threatening a lawsuit against City Manager John Patterson, the city of Casper and ‘possibly others,’ according to a letter obtained by the Star-Tribune.” The letter, which was sent to City Attorney William Luben by Hedquist attorney John Robinson, “demands the city preserve, from Aug. 1, 2012, on, all records of communication and consultation with attorneys and investigators, along with minutes, notes, recordings, executive sessions and digital data regarding Hedquist and Hedquist Construction.” City Manager John Patterson told the Star-Tribune that “he was unaware of the letter and didn't know what the lawsuit might be about.” Hedquist maintains that there was never a conflict of interest: “The general and expected practice for the Casper City Council members is to not vote on matters in which a council member may have a personal interest and record this recusal in the public record,” Hedquist said, as reported by the Star-Tribune. “I have done this on all contract matters regarding Hedquist Construction.” Read the court decision
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The Colorado Supreme Court holds that loans made to a construction company are not subject to the Mechanic’s Lien Trust Fund Statute

February 21, 2013 — W. Berkeley Mann, Jr. — Higgins, Hopkins, McLain & Roswell, LLC
In a prior blog post, we summarized the Court of Appeals decision in the case of AC Excavating, Inc. v. Yale, ___ P. 3d. ___, 2010 WL 3432219 (Colo. App. Sept. 2, 2010) which provided an interpretation of the Colorado Mechanic’s Lien Trust Fund Statute, C.R.S. § 38-22-127 (hereafter “the Trust Fund Statute”). A divided Court of Appeals reversed the trial court, and held that capital loans infused into a limited liability company which performed construction could be subject to the provisions of the Trust Fund Statute. The Court of Appeals reasoned that this determination was necessary because the statute was considered applicable to “all funds disbursed on a construction project.” Additionally, the Court of Appeals held that the intent of the provider of funds was not relevant, and that the statute applied “irrespective of the [originator of the funds]’s intended use of the funds.” This decision was reviewed by the Colorado Supreme Court in an opinion released on February 4, 2013, and it reversed the Court of Appeals’ decision. See, Yale v. AC Excavating, Inc., ___ P. 3d. ___, 2013 WL 441895 (Colo. Feb. 4, 2013). The Supreme Court strongly disagreed that loaned or infused capital funds which were obtained by the general contractor entity were “funds disbursed on a construction project,” simply because some of the infused monies were used for operational purposes to pay down specific project obligations. Read the court decision
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Reprinted courtesy of W. Berkeley Mann, Jr.
mann@hlmrlaw.com

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Consider Arbitration Provision in Homebuilder’s Warranty and Purchase-and-Sale Agreement

November 18, 2024 — David Adelstein - Florida Construction Legal Updates
When you enter into a contract with a homebuilder, particularly a tract homebuilder, please consider two things when it comes to dispute resolution: (1) your purchase-and-sale agreement likely contains an arbitration provision, and (2) your limited warranty agreement you get in connection with closing likely also reinforces the arbitration provision, especially with warranty claims governed by the limited warranty agreement. This dispute resolution is important because it means the homebuilder wants disputes resolved through the arbitration process and NOT through the litigation process (where the nature of disputes and allegations are public). Look, there are pros and cons with arbitration, no different than litigation. Arbitrating a dispute is not necessarily a bad thing, and with certain disputes, ideal. There is no right to appeal in arbitration, but the dispute should resolve itself quicker than litigation, and you’ll have more control over the decision maker, i.e., the arbitrator. 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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New Opportunities for “Small” Construction Contractors as SBA Adjusts Its Size Standards Again Due to Unprecedented Inflation

September 11, 2023 — Hanna Lee Blake - ConsensusDocs
Thanks to the SBA’s November 17, 2022 adjustments to the size standards and monetary thresholds, a number of construction contractors will be able to retain their “small” status, and more contractors may benefit from federal assistance, programs, and contracts earmarked for “small” concerns. In the SBA’s view, small businesses should not lose their “small” status due solely to price level increases rather than from increases in business activity. It is anticipated that federal agencies may choose to set aside more construction contracts for competition among small businesses given the greater number of businesses that may be deemed “small” as a result of the SBA’s recent rule. In light of this, small construction contractors should consider whether it is prudent to register or update their existing profiles in the System for Award Management (SAM) to participate in federal contracting. The SBA’s Statutory Mandate The Small Business Act of 1953 (P.L. 83-163, as amended) authorized the SBA and justified the agency’s existence on the grounds that small businesses are essential to the maintenance of the free enterprise system. The congressional intent was to assist small businesses as a means to deter monopoly and oligarchy formation within all industries and the market failures caused by the elimination or reduction of competition in the marketplace. Congress delegated to the SBA the responsibility to establish size standards to ensure that only small businesses were provided SBA assistance. Since that time, the SBA has analyzed various economic factors, such as each industry’s overall competitiveness and the competitiveness of firms within each industry, to set its size standards. Read the court decision
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Reprinted courtesy of Hanna Lee Blake, Watt Tieder
Ms. Blake may be contacted at hblake@watttieder.com

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Landlord Duties of Repair and Covenant of Quiet Enjoyment

February 10, 2020 — Lawrence S. Glosser - Ahlers Cressman & Sleight PLLC
A recent case from Division I Washington Court of Appeals addressed both a landlord’s duties of repair and maintenance and the Covenant of Quiet Enjoyment in commercial leases. Votiv, Inc. v. Bay Vista Owner LLC, No. 78289-4-I, 2019 WL 4419446 (Wash. Ct. App., Sept. 16, 2019). The Plaintiff in that case leased an office space in a mixed-use residential/office/commercial building in Seattle. Although the ownership groups of the various portions of the building were each separate, the entire building was managed by defendant Bay Vista Owner LLC (“BVO”), that was also the Plaintiff’s landlord. There was a need to replace a deteriorating roof membrane to repair water intrusion into the building. The work involved significant demolition on the roof surface over the premises that Votiv, Inc. (“Votiv”), a music/media company, leased on the top floor. The repair work was done primarily during business hours causing significant disturbance to Votiv’s business operations. Votiv sued BVO and other defendants for, among other things, nuisance, breach of lease, constructive eviction, and breach of the covenant of quiet enjoyment. The trial court denied Votiv’s claim for injunctive relief and granted summary judgment to the Defendants. Read the court decision
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Reprinted courtesy of Lawrence S. Glosser, Ahlers Cressman & Sleight PLLC
Mr. Glosser may be contacted at larry.glosser@acslawyers.com

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Fifth Circuit Certifies Eight-Corners Duty to Defend Issue to Texas Supreme Court

June 21, 2021 — Jeremy S. Macklin - Traub Lieberman Insurance Law Blog
In the recent case of Bitco Gen. Ins. Corp. v. Monroe Guar. Ins. Co., No. 19-51012, 2021 WL 955155 (5th Cir. Mar. 12, 2021), certified question accepted (Mar. 19, 2021), the Fifth Circuit Court of Appeals certified to the Texas Supreme Court the question of whether a court can consider extrinsic evidence when determining an insurer’s duty to defend. The underlying lawsuit stems from a construction contract in which J&B Farms of Texas hired 5D, a construction company, to drill a commercial irrigation well through the Edwards Aquifer. Two years after beginning the project, J&B Farms sued 5D and its President for breach of contract and negligence. J&B Farms alleged that while drilling, 5D “stuck the drilling bit in the bore hole, rendering the well practically useless for its intended/contracted for purpose.” 5D then “failed and refused to plug the well, retrieve the drill bit, and drill a new well.” J&B Farms asserted that 5D drilled the well “with unacceptable deviation” and then “abandon[ed] the well.” 5D notified its insurers, BITCO and Monroe, of the lawsuit and demanded a defense from both. BITCO agreed to provide a defense to 5D, but Monroe refused arguing that the alleged property damage fell outside the relevant policy period, and therefore, it had no duty to defend 5D. BITCO then filed a declaratory judgment action seeking a finding that Monroe owed 5D a duty to defend. Read the court decision
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Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman
Mr. Macklin may be contacted at jmacklin@tlsslaw.com

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