Fairfield Connecticut Building Expert Directory

Changes to the Federal Rules – 2024

November 18, 2024 — William L. Doerler - The Subrogation Strategist
Unless Congress moves quickly, several amendments to the Federal Rules of Civil Procedure and Evidence will take effect December 1, 2024. Below is a brief description of the amendments. Rules of Evidence Rule 107 is a new rule. This rule addresses illustrative aids, stating that, if such aid helps the trier of fact to understand the evidence or an argument, a party may use the aid if its utility is not substantially outweighed by the danger of, among other things, unfair prejudice. As noted under the discussion of Rule 1006, below, an illustrative aid - offered only to help the trier of fact understand the evidence - is generally not admissible into evidence. Rule 613 currently states that extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and the adverse party is given an opportunity to examine the witness about it, or if justice so requires. As amended, the court has the discretion to forego this requirement. Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

Seattle’s Audacious Aquarium Throws Builders Swerves, Curves, Twists and Turns

January 08, 2024 — Nadine M. Post - Engineering News-Record
Patrick Nation describes the reinforcing steel for the main tank of the 50,000-sq-ft Seattle Aquarium Ocean Pavilion as a “monster” job for CMC Rebar. In his mind, it was like bending 496 tons of bars “on a golf ball.” In reality, the operation was more like weaving a giant steel basket. Ironworkers had to painstakingly hand-thread the reinforcing steel for the doubly curved and slanted concrete walls of the 350,000-gallon saltwater exhibit—one bar at a time—to create the dense latticework for the 41-ft-tall basket. Reprinted courtesy of Nadine M. Post, Engineering News-Record Ms. Post may be contacted at postn@enr.com Read the full story... Read the court decision
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Five Keys to Driving Digital Transformation in Engineering and Construction

January 02, 2019 — Rob Phillpot - Construction Executive
Engineering and construction companies increasingly find themselves navigating an era of disruptive and transformative change driven by technology. And with the industry going strong and construction employment recently reaching a 10-year high, more companies recognize that it is time to embrace the efficiencies digital transformation brings, in large part to protect or enhance their competitive position. A report from the Global Industry Council notes that modern technology is moving to the strategic center of E&C business models as part of an evolutionary process. Reprinted courtesy of Rob Phillpot, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Elizabeth Lofts Condo Owners Settle with Plumbing Supplier

January 28, 2014 — Beverley BevenFlorez-CDJ STAFF
The owners of the Elizabeth Lofts condominiums in the Pearl District, Portland, Oregon have settled with Victaulic Co., the plumbing supplier who allegedly “sold failing parts,” reported The Oregonian. The case had been scheduled to go to trial this month. “Lawsuits filed by owners at the Avenue Lofts, the Benson Tower and The Edge Lofts are moving forward in federal courts.” The Elizabeth Lofts owners alleged “parts used in the buildings’ plumbing systems were disintegrating and causing water damage,” according to The Oregonian. The owners association had sought over three million in damages, though Phillip E. Joseph, Elizabeth Lofts owners’ attorney, said “he couldn’t disclose the terms” of the settlement. Victaulic’s attorney “declined to comment.” Read the court decision
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Think Twice Before Hedging A Position Or Defense On A Speculative Event Or Occurrence

July 13, 2020 — David Adelstein - Florida Construction Legal Updates
Sometimes, hedging a position on a potential occurrence is not prudent. Stated differently, hedging a position on a contingent event is not the right course of action. The reason being is that a potential occurrence or contingent event is SPECULATIVE. The occurrence or event may not take place and, even if it does take place, the impact is unknown. An example of hedging a defense on such a potential occurrence or contingent event can be found in a construction dispute involving a federal project out of the Eastern District of Virginia, U.S. f/u/b/o Champco, Inc. v. Arch Insurance Co., 2020 WL 1644565 (E.D.Va. 2020). In this case, the prime contractor hired a subcontractor to perform electrical work, under one subcontract, and install a security system, under a separate subcontract. The subcontractor claimed it was owed money under the two subcontracts and instituted a lawsuit against the prime contractor’s Miller Act payment bond. The prime contractor had issued the subcontractor an approximate $71,000 back-charge for delays. While the subcontractor did not accept the back-charge, it moved for summary judgment claiming that the liability for the back-charge can be resolved at trial as there is still over $300,000 in contract balance that should be paid to it. The prime contractor countered that the delays caused by the subcontractor could be greater than $71,000 based on a negative evaluation in the Contractor Performance Assessment Reporting System (“CPARS”). A negative CPARS rating by the federal government due to the delays caused by the subcontractor would result in a (potential) loss of business with the federal government (i.e., lost profit) to the prime contractor. The main problem for the prime contractor: a negative CPARs rating was entirely speculative as there had not been a negative CPARs rating and, even if there was, the impact a negative rating would have on the prime contractor’s future business with the federal government was unknown. To this point, the district court stated:

In this case, [prime contractor’s] claim for damages is wholly speculative. [Prime contractor] has not produced any evidence that its stated condition precedent—a negative CPARS rating—will actually occur and will have a negative impact on its future federal contracting endeavors. Specifically, [prime contractor] has not identified any facts that indicate that it will be subject to a negative CPARS rating or any indication of the Navy’s dissatisfaction with its work as the prime contractor on the Project… Further, a CPARS rating is only one aspect taken into consideration when federal contracts are awarded. In sum, there is no evidence of the following: (1) a negative CPARS rating issued to [prime contractor]; (2) [prime contractor’s] hypothetical negative rating will be the result of the delay [prime contractor] alleges was caused by [subcontractor]; or (3) [prime contractor’s] hypothetical negative CPARS rating will result in future lost profits.

U.S. f/u/b/o Champco, Inc., supra, at *2 (internal citation omitted).

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Mandatory Energy Benchmarking is On Its Way

April 22, 2019 — Christopher G. Hill - Construction Law Musings
We have discussed the issue of benchmarking and energy reporting on several occasions here at Musings. As the January 18, 2010 issue of ENR Magazine discusses, now cities and states are getting on board in a big way. Washington, D.C. began requiring building owners to use the EPA Energy Star Portfolio Manager tool on January 1, 2010 and New York City passed a similar measure in December. The D.C. law is the first to require mandatory public disclosure of energy performance. Such disclosure will create a public database of energy performance data. While I understand that this data and its reporting will create energy accountability in a way that non-disclosure of this data would not, the possibilities for misuse or uses that impact the construction world abound. This energy reporting is a step beyond that of the LEED program in that the data is not just reported to the USGBC, but to a public database. As such, the ease of access will impact contracts and contractors in an even bigger way than the USGBC requirements. 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

Safety Guidance for the Prevention of the Coronavirus on Construction Sites

May 25, 2020 — Heather Whitehead - Newmeyer Dillion
Although construction projects are generally allowed to proceed under most COVID-19 stay at home orders, owners and contractors need to know how to proceed safely on their construction sites. Not only do workers and others on site need to be protected, but implementation of these protocols is also critical to avoid potential liabilities. Last week, the California Department of Industrial Relations – Division of Occupational Safety & Health (CAL/OSHA) released guidance regarding safety and health procedures to prevent the spread of COVID-19 at construction sites. A link to the CAL/OSHA Safety and Health Guidance is provided here. While the guidance states that it is not imposing any new legal obligations, it is imperative for businesses to not only be aware of these safety practices, but to incorporate these practices as appropriate on each construction site to protect its employees as well as subcontractors, suppliers and others who may be present on site. Otherwise, owners and contractors face potential exposure to regulatory action, including potential penalties and other liabilities, if they fail to properly incorporate these guidelines into the Injury and Illness Prevention Program (IIPP) at each construction site. Now is the time to update your current Injury and Illness Prevention Program (IIPP) to include recommended protocols for preventing the spread of the Coronavirus. Read the court decision
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Reprinted courtesy of Heather Whitehead, Newmeyer Dillion
Ms. Whitehead may be contacted at heather.whitehead@ndlf.com

Impairing Your Insurer’s Subrogation Rights

May 06, 2024 — David Adelstein - Florida Construction Legal Updates
Liability insurance policies have a provision that allows them to subrogate to the rights of their insured. This provision is commonly referred to as a transfer of rights provision and reads: If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring “suit” or transfer those rights to us and help us enforce them. In a recent dispute, an insurer sued its insured claiming the insured breached the insurance policy-a contract—by impairing the insurer’s subrogation rights. In other words, the insurer claimed its insured breach the insurance contract and the transfer of rights provision above. 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

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES