Fairfield Connecticut Building Expert Directory

Quick Note: Be Careful with Pay if Paid Clauses (Both Subcontractors and General Contractors)

June 17, 2015 — Christopher G. Hill – Construction Law Musings
Aside from waiver of lien rights (something that will be illegal in Virginia after July 1, 2015), the most troublesome contractual impediment to payment for a subcontractor or supplier on a project often is the “pay if paid” clause. As a general rule, in Virginia, these clauses where drafted in the proper fashion, are enforceable. As I have said many times, in Virginia freedom of contract almost always wins out. While this is the case, I emphasize that such clauses must be very explicit and specific. Furthermore, and in something that should be obvious, these clauses are generally limited by the Courts of Virginia to only be enforceable and to only forgive the need for payment if the upstream contractor on the construction job has not been paid for the work that the sub claiming non payment has done. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Attorneys’ Fees and the American Arbitration Association Rule

September 09, 2024 — Bill Wilson - Construction Law Zone
A common question from clients, when a dispute arises on a construction project, is whether they can recover their attorney’s fees from the other side if they pursue a case and win. More often than not, such fees are not recoverable. As a general rule (commonly known as the “American Rule”), each party to a dispute must bear their own attorney’s fees unless there is some statutory provision or contractual agreement between the parties allowing otherwise. Since most construction disputes involve claims for breach of contract and/or negligence, no realistic statutory provision often allows for attorney’s fees. Many construction contracts do not typically provide a prevailing party the right to collect attorney’s fees from the other side. However, even if the American Rule applies, there may be another path to recovering attorney’s fees if the parties agree to arbitrate their dispute under the American Arbitration Association (AAA) rules. Reprinted courtesy of Bill Wilson, Robinson & Cole LLP Mr. Wilson may be contacted at wwilson@rc.com Read the full story... Read the court decision
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Negligence Claim Not Barred by Gist of the Action Doctrine

February 18, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Pennsylvania Supreme Court held that the insureds' negligence claim survived because it was not based upon breach of a duty created by the policy, but upon the alleged breach of a duty imposed by tort law. Bruno v. Erie Ins. Co,, 2014 Pa. LEXIS 3319 (Dec. 15, 2014). After purchasing their home, the insureds obtained a homeowner's policy from Erie. A separate endorsement covered loss to the property caused by "fungi," which was included as any form of mold. The endorsement obligated Erie to pay up to $5,000 for loss caused by mold. The policy required Erie to pay the cost of testing the air to confirm the absence or presence of mold. If mold was present, Erie was to pay for the cost of removal, including the cost of tearing out any part of the property needed to gain access to the mold. While renovating the basement, the insureds discovered two areas of black mold in close proximity to leaking water pipes. Erie was notified and sent an adjuster to view the mold. The adjuster took no action, but returned a couple of days later with an engineer. The adjuster and engineer informed the insureds that the mold was harmless and that health problems associated with mold were a media frenzy and overblown. 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

Bought a New Vacation Home? I’m So Sorry

August 13, 2014 — Ben Steverman – Bloomberg
Summer is a time to relax, kick back and make dumb financial decisions. That's how financial advisers see it, when their clients get a hankering for a summer house after returning from an idyllic trip. Sales of vacation homes in the U.S. rose 30 percent last year to 717,000, the National Association of Realtors estimates, based on a survey. But owning a second home is often far more expensive and stressful than buyers, or dreamers, imagine. Start with the dark side to beautiful weather. Sun, salt and wind are cruel to houses. One owner in Virginia Beach was shocked to learn he'd need new windows every six years. That alone wiped out an entire summer of rental income, says David O’Brien, his adviser. Storms take out roofs, docks and sea walls, replaceable only at exorbitant rates. "These properties are for family memories, not capital appreciation," O'Brien says sunnily. Read the court decision
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Reprinted courtesy of Ben Steverman, Bloomberg
Mr. Steverman may be contacted at bsteverman@bloomberg.net

Massachusetts Couple Seek to Recuse Judge in Construction Defect Case

September 30, 2011 — CDJ STAFF

After seeing their $1 million jury award overturned on appeal by a judge who called the award “against the weight of evidence and likely due to misapprehension, confusion or passion,” Kathryn and Christian Culley are seeking to have him removed from the case. The Massachusetts Supreme Judicial Court has rejected their claim.

The Culleys claim that Judge Thomas R. Murtagh’s decision was influence by him membership in the Andover Country Club which is represented by the opposing counsel in their construction defect case. Justice Margot G. Botsford had denied the Culley’s request, ruling that they had other remedies available to them.

The SJC noted in their ruling that if the Culleys are alleging judicial misconduct a request must be made to the Commission on Judicial Conduct. Their lawyer plans to file a new motion for recusal with the SJC.

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Home Prices Up, Inventory Down

February 04, 2013 — CDJ STAFF
"Housing is clearly recovering," David Blitzer of Standard & Poor told USA Today. Standard & Poor issued their Case-Shiller Index of home sale prices for November. In their review of twenty metropolitan areas, prices rose in all but one area. In the report for October, housing overall saw a 0.1% decline with gains only in ten cities. The article attributes this in part to that the inventory of unsold homes was 4.4 months, which was the lowest since May 2005. "Any new listings are getting eaten up right away," said E. J. Bowlds, a broker at Coldwell Banker Bain. He is seeing six to ten competing offers on homes in his area of Washington State. Read the court decision
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CAPSA Changes Now in Effect

November 14, 2018 — Wally Zimolong - Supplemental Conditions
Back in June, I posted about changes coming to the Pennsylvania Contractor and Subcontractor Payment Act (CAPSA), 73 P.S. Section 501, et. seq. The Act applies to virtually all private construction projects in Pennsylvania. As of last week (Oct. 10), those changes are effective. While there is some argument to the contrary, these changes are NOT retroactive and apply to all projects going forward from that date. To recap, here are some of the important changes you need to be aware of:

Contractual waivers. Parties cannot waive the applicability of the act through contract. Therefore, any clause in a contract purporting to waive the Payment Act’s applicability is void.
Suspension of work. Unpaid contractors and subcontractors have always enjoyed a common law right to suspend performance until payment was made. Now, they also have a statutory right to do so. Section 5 of the Payment Act ads a subpart (e) which states that an unpaid contractor or subcontractor can suspend performance without penalty if it is not paid.

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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

California Appellate Court Holds “Minimal Causal Connection” Satisfies Causation Requirement in All Risk Policies

July 20, 2020 — Scott P. DeVries & Michael S. Levine - Hunton Andrews Kurth
On May 26, 2020, a California Court of Appeals (4th District) issued its decision in Mosley et al. v. Pacific Specialty Ins. Co. The case arose in the context of a marijuana-growing tenant who rerouted a home’s electrical system and caused an electrical fire. The issue was whether the homeowner’s policy covered the loss. The trial court granted the insurer’s motion for summary judgment and, in a divided decision, the Court of Appeals reversed in part. The policy excluded losses “resulting from any manufacturing, production or operation, engaged in … the growing of plants.” The parties agreed that the fire resulted from the rewiring of the electrical system, but disagreed on “whether that means the damage” “result[ed] from” “the growing of plants.” The Court held that “resulting from” “broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.” In doing so, it equated the terms “results from” and “arising from.” Concluding that a “common sense” approach was to be used, it found a “minimal causal connection” to be present. This expansive standard could be beneficial to policyholders in arguing the causal connection between COVID-19 and ensuing business interruption losses; specifically, that the pandemic, a covered event, is the underlying and proximate cause of the insureds’ physical loss and/or damage and the insured’s resulting business interruption loss, and that intervening events, whether they be orders of civil authority, prevention of ingress/egress or otherwise, would not sever the chain of causation. Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth and Michael S. Levine, Hunton Andrews Kurth Mr. DeVries may be contacted at sdevries@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES