FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Recent Third Circuit OSHA Decision Sounds Alarm for Employers and Their Officers

October 14, 2019 — John Baker - White and Williams LLP
The Third Circuit Court of Appeals recently issued an opinion that should serve as a warning not only to employers, but to their corporate officers. The case against Altor, Inc., a New Jersey-based construction company, began in 2012 when the Occupational Safety and Health Administration (OSHA) directed Altor and its sole director and officer to pay a $412,000 penalty (Payment Order) to OSHA for several violations, including the failure to comply with fall protection standards. The company refused to pay, arguing that it did not possess sufficient assets. The Secretary of Labor filed a Petition for Civil Contempt against Altor and its President, Vasilios Saites. The court acknowledged that the company and Mr. Saites could defend against a contempt finding by showing that he and the company were unable to comply with the Payment Order. Beyond merely stating that they could not pay, the court required that they must show that they made good faith efforts to comply with the Order. After considering all of the evidence, the court ultimately relied on Altor’s bank records, which reflected that the company ended each month during a two-year period after the violations with a positive bank balance. Thus, the court determined that Altor could have made “at least relatively modest” payments and emphasized that the company never attempted to negotiate a reduced sum or a payment plan. Read the court decision
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Reprinted courtesy of John Baker, White and Williams LLP
Mr. Baker may be contacted at bakerj@whiteandwilliams.com

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A Lien Might Just Save Your Small Construction Business

April 04, 2011 — Douglas Reiser, Builders Council Blog

Many owners incorrectly believe that payment to the general contractor gets the owner off the hook for payment to subcontractors and suppliers. This assumption sometimes fosters the irresponsible owner, who fails to ensure that everyone is getting paid. Fortunately for those contractors further down the contracting chain, this assumption is incorrect.



Suppliers and subcontractors can file a lien to secure payment for their labor and materials. A filing party must offer proper notice (if applicable) and file an adequate and timely lien in the County where the work is performed. You can read our earlier posts on these topics by following this link.



A lien notice and a lien put an owner on notice that your business has provided labor and/or materials for the improvement of the owner’s property (See RCW 60.04.031 for more info). If the owner fails to take care to ensure that your business is paid the law mandates that the owner may have to pay twice.



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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com

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Flying Solo: How it Helps My Construction Clients

February 18, 2015 — Christopher G. Hill – Construction Law Musings
Two and a half years ago, on July 1, 2010, I opened my solo practice. At the time, I really had no insight into how big this change would be from a positive, customer service, perspective. When I made the decision to go solo with my construction law practice, I knew I wanted to have flexibility to serve my client base of contractors and subcontractors in Virginia. I started some flat rate billing and had the ability to take cases that were below the dollar value of those that my old firm was willing to take. I also knew that I would be a master of my own destiny for better or worse (and it has been much more of the former than the latter). What I did not realize is the impact that owning my own business would have on my perspective. I have always believed that, in most cases where construction disputes occur, mediation is a great option. However mediation only occurs with conflict. For any business, whether construction or otherwise, conflict creates expenses that were not likely to have been anticipated or built in to the budget. Litigation is not something that most businesses can, or should, build into their operating budgets. 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

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Additional Insured Coverage Confirmed

February 23, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Texas Court of Appeals found that Exxon Mobil Corporation was an additional insured under the CGL policy for Exxon's service provider. Liberty Surplus Ins. Corp. v. Exxon Mobil Corporation, 2015 Tex. App. LEXIS 12757 (Tex. Ct. App. Dec. 17, 2015). Exxon contracted with Wyatt Field Service Company to perform "services" as set forth in various work orders from Exxon's affiliates. The contract also required Wyatt to maintain $5 million of commercial general liability insurance. The contract provided that the policies must cover Exxon and its affiliates "as additional insureds in connection with the performance of Services." In 2008, Wyatt was assigned to work on a flexicoker unit at Exxon's refinery. Wyatt was to reinstall dummy nozzles and chains. It completed this service in October 2008. Three years later, one of the dummy nozzles pulled free, and the escaping steam and coke burned three individuals who were working on the unit. After the accident, it was discovered that the safety chain had been installed in the wrong location so that it did not properly secure the dummy nozzle. 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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Fire Damages Unfinished Hospital Tower at NYU Langone Medical Center

December 15, 2016 — Jeff Rubenstone – Engineering News-Record
A fire broke out Dec. 14 at a hospital tower under construction at NYU Langone Medical Center in New York City. The blaze sent a column of thick black smoke up through the Manhattan skyline. Read the court decision
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Reprinted courtesy of Jeff Rubenstone, Engineering News-Record
Mr. Rubenstone may be contacted at rubenstonej@enr.com

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Coverage Doomed for Failing Obtain Insurer's Consent for Settlement

January 22, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Fourth Circuit affirmed the district court's determination that there was no duty to indemnify after the insured settled without consent of the insurer. Perini/Tompkins Joint Venture v. ACE American Ins. Co., 2013 U.S. App. LEXIS 24865 (4th Cir. Dec. 16, 2013). The insured, a joint venture, was hired as manager for the construction of a $900 million hotel and convention center. OCIP and excess policies were obtained through ACE. The project was also insured by a Builders Risk Policy through Factory Mutual Insurance Company. During construction, a rod eroded, causing the atrium to collapse. Substantial property damage occurred and the completion of the project was delayed for several months. 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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Construction Defect Claim Did Not Harm Homeowner, Court Rules

September 30, 2011 — CDJ STAFF

The Minnesota Court of Appeals has ruled in Creswell v. Estate of Howe, a case in which a woman bought a home and then sued the seller’s estate, both sets of real estate agents, and the homeowner’s association over construction defects. A district court ruled against her, granting summary judgment to the other parties.

After buying a townhome “as is,” Catherine Creswell claims to have shared a thought with her agent that the homeowners association was, in the words of her agent, “trying to hide something.” Later, Creswell found that a few days before her closing, the board had discussed problems with “roofs, siding and soundproofing of the townhomes.” The court noted that “it was clear from the documents that appellant [Creswell] received that the association had known about various construction defects for many years, some of which affected [her] unit.”

Creswell initially sued the estate, the man who negotiated the sale for his mother’s estate, the real estate companies and the agents involved, the homeowners association, and four board members. Later she sued for punitive damages, dropped a claim for interference with contractual relations, and dismissed her claims against the individual board members. The court dismissed all of Creswell’s claims awarding costs to those she sued.

The appeals court has affirmed the decision of lower court, noting that Creswell “did not provide us with any argument why the district court erred in dismissing her unjust-enrichment, breach of contract, or rescission claims against the various respondents.” Nor did she provide evidence to support her claims of “breach of duty, fraud, and violation of consumer protection statutes.”

The court noted that Creswell could not sue the homeowners association over the construction defects because she “failed to prove that she was damaged by the association’s nondisclosure.” The court noted that “there are no damages in this case,” as Creswell “was never assessed for any repairs, she had not paid anything out-of-pocket for repairs, and she has presented no evidence that the value of her individual unit has declined because of the alleged undisclosed construction defects.”

The court granted the other parties motion to dismiss and denied Creswell’s motion to supplement the record. Costs were awarded to the respondents.

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CSLB Begins Processing Applications for New B-2 License

June 21, 2021 — Garret Murai - California Construction Law Blog
As we wrote about in our 2021 Construction Law Update, one of the new laws to take effect on January 1, 2021 was the enactment of SB 1189 which created a new B-2 Residential Remodeling Contractor’s license. The new license is available to contractors working on existing homes with residential wood frame structures requiring at least three (3) unrelated trades or crafts under a single contract. Beginning June 1, 2021, the Contractors State License Board began accepting applications for the B-2 Residential Remodeling Contractor’s license. According to a press release from the CSLB:

The B-2 classification provides a pathway to licensure for many unlicensed people who are currently working on remodeling and small home improvement projects that don’t qualify for a B-General Building License because the contracted work does not include framing or rough carpentry. Consumers employing a licensed contractor have reduced liability and greater consumer protection. Licensees benefit from licensure as they have opportunities to lawfully advertise, and compete on a level playing field for jobs.

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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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