Fairfield Connecticut Building Expert Directory

Pulling the Plug

December 13, 2022 — Todd R. Regan - Construction Executive
As a contractor, you may have wondered if your contract can be terminated by the owner for cause after the project has reached substantial completion. The answer is yes. Under certain circumstances it may be permissible—or even necessary—for a project owner to terminate the contract for cause after the project has reached substantial completion. Although the rights of the parties in any case will depend in large part on the specific contract language, the fact that a project has reached substantial completion is not an absolute bar to termination for cause, particularly when the owner intends to pursue a performance-bond claim. Completion Versus Performance Following substantial completion, a contractor typically will have outstanding contractual obligations such as paying its subcontractors and suppliers, bonding off any mechanic’s liens, completing the punch list, remediating defective work, testing and commissioning equipment, providing manufacturer’s warranties and performing its own warranty obligations. Reprinted courtesy of Todd R. Regan, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Colorado Homebuyers Must be in Privity of Contract with Developer to Assert Breach of Implied Warranty of Suitability

May 03, 2017 — Maggie Stewart - Colorado Construction Litigation
On April 17, 2017, the Colorado Supreme Court announced its decision in Forest City v. Rogers, No. 15SC1089, 2017 CO 23 (Colo. Apr. 17, 2017). The Court held that privity of contract is necessary for a homebuyer to assert a claim for breach of implied warranty of suitability against a developer. In other words, one must be a party to a contract to pursue a claim for breach of any implied warranty of suitability therein. Defendant Forest City was the developer of a mixed use property in Stapleton. Forest City subdivided the land and sold the vacant lot at issue to a professional builder, Infinity. Infinity then built a residence and sold it to the plaintiff, Tad Rogers. After moving into the home, Rogers came to believe that the water table beneath the house along with calcite leaching from the road material led to a buildup of calcite in the foundation drain, making the basement uninhabitable and causing the sump pump to work overtime. Rogers sued Forest City on various theories, including breach of the warranty of suitability. In particular, Rogers alleged that Forest City impliedly warranted to him that his lot was suitable for a home with a finished basement, when in fact it was not. He prevailed on this claim at the trial court level. Read the court decision
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Reprinted courtesy of Maggie Stewart, Higgins, Hopkins, McLain & Roswell, LLC
Ms. Stewart may be contacted at stewart@hhmrlaw.com

Fourth Circuit Holds that a Municipal Stormwater Management Assessment is a Fee and Not a Prohibited Railroad Tax

April 22, 2019 — Anthony B. Cavender - Gravel2Gavel
On February 15, the U.S. Court of Appeals for the Fourth Circuit decided Norfolk Southern Railway Co. v. City of Roanoke, et al.; the Chesapeake Bay Foundation was an Intervenor-Defendant. The Fourth Circuit held that a large stormwater management fee (stated to be $417,000.00 for the year 2017) levied by the City of Roanoke against the railroad to assist in the financing of the City’s permitted municipal stormwater management system was a permissible fee and not a discriminatory tax placed on the railroad. The Railroad Revitalization and Regulatory Reform Act of 1976 specifically provides that states and localities may not impose any tax that discriminates against a rail carrier, 49 U.S.C. § 11501. Accordingly, the issue confronting the Fourth Circuit was whether the assessment was fee and not a tax. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Delaware Supreme Court Choice of Law Ruling Vacates a $13.7 Million Verdict Against Travelers

August 07, 2018 — Gregory Capps & Zachery Roth - White and Williams LLP
On July 16, 2018, the Delaware Supreme Court held in Travelers Indemnity Company v. CNH Industrial America, LLC, No. 420, 2017 (Del. Jul. 16, 2018), that a court’s choice of law inquiry in an insurance coverage dispute should focus on the contacts most relevant to the insurance contract rather than the location of the underlying claims. In Travelers, CNH Industrial America, LLC (CNH), sought coverage for asbestos liabilities associated with J.I. Case, Inc., a subsidiary it had acquired, under policies issued to J.I. Case and its former parent company, Tenneco, Inc. The issue before the Delaware Supreme Court was whether the anti-assignment clause in three Travelers policies issued to Tenneco, Inc. precluded the assignment of the policies to CNH. The validity of the assignment turned on which state’s law governed the dispute. (Under Wisconsin law, the parties agreed that the assignment was valid, while under Texas law, the parties agreed the assignment was invalid.) Reprinted courtesy of Gregory Capps, White and Williams LLP and Zachery Roth, White and Williams LLP Mr. Capps may be contacted at cappsg@whiteandwilliams.com Mr. Roth may be contacted at rothz@whiteandwilliams.com Read the court decision
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Improper Classification Under Davis Bacon Can Be Costly

April 01, 2015 — Craig Martin – Construction Contractor Advisor
The Department of Labor announced late last year that it had recovered nearly $2 million in back wages and fringe benefits from a subcontractor that provided constructions services at the federally funded Crescent Dunes Solar Energy Project in the Nevada desert. This was not a failure to pay Davis Bacon wages, but a failure to properly classify laborers on the project. The DOL determined that the laborers should have been paid as skilled trade steelworkers, not general laborers. As the subcontractor found out, this proved very costly. The subcontractor submitted its bid, classifying its laborers as general laborers and designating their wage at $30.00. The laborers were to assemble billboard sized mirrors on the project. There is some indication that the Department of Energy agreed with the classification, even though the Department of Labor has the final say on classifications. The Department of Labor’s investigation revealed that the laborers routinely performed duties in skilled trades, such as ironworking, electrical work, painting or bridge crane operation. Based on these activities, the Department of Labor concluded that the laborers should have been paid $60.00 per hour plus fringe benefits. 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

Why A Jury Found That Contractor 'Retaliated' Against Undocumented Craft Worker

August 22, 2022 — Richard Korman - Engineering News-Record
On May 10, 2017, a Boston wall taper who had broken his leg in a fall from a ladder during work six weeks earlier took his two-year-old son to an office of a West Bridgewater, Mass.-based contractor, on the invitation of the CEO who asked him to come and gave the worker $500 to help him get by while recovering. Reprinted courtesy of Richard Korman, Engineering News-Record Mr. Korman may be contacted at kormanr@enr.com Read the full story... Read the court decision
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Sixth Circuit Holds that Some Official Actions Taken in the “Flint Water Crisis” Could Be Constitutional Due Process Violations

March 27, 2019 — Anthony B. Cavender - Gravel2Gavel
In what the Court of Appeals describes as “the infamous government-created environmental disaster known at the Flint Water Crisis,” a panel of the U.S. Court of Appeals for the Sixth Circuit has ruled that some of the government personnel responsible for this disaster may be liable, under 42 U.S.C. § 1983, for monetary damages based on the Substantive Due Process Clause of the Fourteenth Amendment to the Constitution. The case is Guertin, et al., v. State of Michigan, et al., decided on January 4, 2019. On April 25, 2014, the City of Flint, MI, facing a financial crisis, agreed to switch its drinking water supply from the water provided by the Detroit Water and Sewerage Department to untreated water available from the Flint River that would be treated in the waterworks owned and operated by the City. However, the City waterworks could not provide the needed treatment, which resulted in the corrosive Flint River water leaching lead out of the old Flint water pipes. Soon thereafter, a public health and environmental crisis enveloped Flint. Many lawsuits have been filed against many defendants, and many civil and criminal investigations have been opened. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Insurers Get “Floored” by Court of Appeals Regarding the Presumptive Measure of Damages in Consent Judgments

May 13, 2014 — Mark Scheer and Brent Williams-Ruth – Scheer & Zehnder LLP
CASE: Miller v. Kenny, 68594-5-I, 2014 WL 1672946 (Wash. Ct. App. Apr. 28, 2014). Snapshot Synopsis: $21 million bad faith consent judgment verdict upheld. $4.15 million underlying stipulated consent judgment was the “floor,” and additional damages allowed. ISSUES: 1. Can a jury award damages for an insurer’s bad faith in excess of the amount of the stipulated covenant judgment? YES 2. Can a trial court admit evidence of insurance liability reserves in a bad faith action? YES 3. *Note: Other evidentiary and procedural issues were addressed by the court in its decision but not analyzed in this summary* FACTS: This appeal arose out of an automobile accident on August 23, 2000. Patrick Kenny was driving a 1994 Volkswagen Passat owned by one of the passengers, when he rear-ended a cement truck. The accident severely injured his three passengers: Ryan Miller, Ashley Bethards, and Cassandra Peterson. Kenny was covered for liability under the insurance policy issued to Peterson's parents by Safeco Insurance Company. Safeco defended Kenny without a reservation of rights. Reprinted courtesy of Mark Scheer, Scheer & Zehnder LLP and Brent Williams-Ruth, Scheer & Zehnder LLP Mr. Scheer may be contacted at mscheer@scheerlaw.com; Mr. Williams-Ruth may be contacted at bwilliamsruth@scheerlaw.com Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES