FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

A Lawyer's Perspective on Current Issues Dominating the Construction Industry

March 28, 2022 — Melanie A. McDonald - Saxe Doernberger & Vita
Some of the hot topics dominating the construction industry today include the impacts of COVID-19, government testing and vaccine mandates, cyber security, and the evolving role of general counsel. This article provides a summary review of those topics. a. The Economic Impact of COVID-19 for Project Owners Project owners have been placed in a precarious position because courts across the country have almost unanimously ruled that insurance carriers are not liable for COVID-19-related business income losses.1 While project owners have sought alternative ways to mitigate losses resulting from COVID-19, many of these efforts have been negated by the exponential increase in materials costs.2 Thus, it remains unclear what, if any, solutions project owners have at their disposal. Read the court decision
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Reprinted courtesy of Melanie A. McDonald, Saxe Doernberger & Vita
Ms. McDonald may be contacted at MMcDonald@sdvlaw.com

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State Farm Too Quick To Deny Coverage, Court Rules

July 22, 2011 — CDJ STAFF

On July 13, 2011, Judge Sarah S. Vance of the US District Court issued a rule in the case of Travelers Cas. & Surety Co. of Am. v. Univ. Facilities, Inc. (E.D. La., 2011). In this case, Stanley Smith Drywall was contracted by Capstone Building Corporation to “perform undisclosed work at the facility believed to involve the installation of drywall.” The project involved the design and construction of student residences for the Southeastern Louisiana University in Hammond, Louisiana. In May, 2009, University Facilities, Inc. (UFI) sued Capstone Development Corporation and Capstone On-Campus Management.



State Farm insured Stanley Smith Drywall and they sought a declaration that they have no duty: “(1) to insure Stanley Smith or CBC, or (2) to defend or indemnify any party against UFI's claims in the pending arbitration.” State Farm contends “(1) there is no "occurrence" to trigger coverage under the policy; (2) only breach of contract claims are asserted; (3) there is no property damage alleged; and (4) various coverage limitations and exclusions apply to prevent coverage.’



The court concluded that “whether State Farm has a duty to defend in the arbitration must be determined by considering the claims asserted in the arbitration.” However, the arbitration claims were not made part of the record. There, “, the Court cannot determine as a matter of law State Farm's duty to defend on the present record.” The same was true of State Farm’s duty to indemnify. “Stanley Smith and CBC assert that State Farm's motion for summary judgment was filed before any discovery was conducted in the arbitration proceeding or in this case. The Court finds that State Farm has failed to develop the record sufficiently to establish that there is no genuine issue of material fact as to its duty to indemnify Stanley Smith or CBC in the arbitration.’



The court denied State Farm’s motion for a summary judgment on its duty to defend and indemnify.



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Creating a Custom Home Feature in the Great Outdoors

July 09, 2014 — Beverley BevenFlorez-CDJ STAFF
When a resort designer and a spa director join together to create a custom home, what do you get? An outdoor tub that resides on a balcony overlooking the San Francisco Bay. According to Custom Home, Scott Lee, president of SB Architects, and his wife had the “custom cast concrete tub…craned into place on the third-story deck while avoiding an established oak tree.” A radiant heat lamp makes the outdoor bathing area practical, while the curved backrest, remote controlled dimmable lights, and music make the experience luxurious. “Tubs are more about relaxing then getting clean,” Lee told Custom Home. “Being out here among the branches with views of San Francisco, it really is like a resort.” Read the court decision
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The Hidden Dangers of Construction Defect Litigation

March 28, 2012 — David M. McLain, Colorado Construction Litigation

David M. McLain, writing at Colorado Construction Litigation, has an interesting blog post republishing his article in Common Interests magazine, the monthly periodical of the Rocky Mountain Chapter of the Community Associations Institute. In his article, he touches on a number of pitfalls in construction defect litigation, including the potential conflicts of interests facing HOAs. He also considers the problems homeowners can face, including both “strong-arm tactics” taken by attorneys to compel homeowners to join the lawsuit, or situations in which the interests of the HOA do not match those of the homeowners. He writes:



There is also a conflict of interest with individual owners who attempt to opt out of the case. This can lead to shocking strong-arm tactics on the part of plaintiffs’ attorneys. In one instance, a plaintiffs’ attorney sent a letter to an individual homeowner that stated that as a 1/58th owner of the common elements, if he refused to go along with the suit, and there was ultimately a finding in favor of the HOA which was in any way limited by his refusal to participate, he would be personally liable for 1/58th of the HOA’s total damages. In another instance, a different plaintiffs’ attorney sent a letter to a homeowner who wanted the builder to perform warranty repairs, informing the owner that if he let the builder perform any repairs, the attorney would bill the HOA according to the fee agreement entered by the HOA board (without knowledge or consent of non-board members) and that the HOA would assess the homeowner for that expense. These are just two examples of conflicts which may arise between the HOA board and individual homeowners when the HOA pursues CD cases.



Another example of a conflict which will arise as a result of CD litigation occurs post-settlement. When an HOA settles for less than 100% of the amount necessary to fund all repairs outlined by its experts, plus attorneys’ fees and litigation costs, there will obviously be a shortfall in the amount necessary to fix the development. The HOA board must then choose to impose a special assessment to cover the shortfall or to make some, but not all, of the repairs outlined by its experts. In choosing the latter, the conflict arises with respect to which homes get fixed and which do not. In this situation, the HOA board has acted as the attorney-in-fact for the individual owners by bringing claims on their behalf, and has compromised those claims without their knowledge or consent.

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Reprinted courtesy of David M. McLain of Higgins, Hopkins, McClain & Roswell, LLC. Mr. McClain can be contacted at mclain@hhmrlaw.com.

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Get Construction Defects in Writing

December 11, 2013 — CDJ STAFF
Sometimes, even if a developer is willing to make a repair, sometimes the repair doesn’t get to the actual problem, according to Nicholas D. Cowie of Cowie & Mott, writing on his blog. He notes that “getting it ‘right’ the first time is important and written documentation is key.” He gives the example of “when a developer agrees to informally repair a window or roof leak, the ‘repair,’ as far as the developer is concerned, may consist merely of sending out a worker with a caulk gun to seal gaps that should have been protected with a solid flashing material during the original installation.” As a better course, he says that homeowner associations should “request a written description of the proposed repair” in order that it can be evaluated. This also allows follow-up to determine if the agreed-upon repair was done properly. And, although some homeowners associations would rather not have the original subcontractor repair their own work, here warranties often come into play. Read the court decision
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Insurer Not Entitled to Summary Judgment on Construction Defect Claims

February 10, 2012 — Tred R. Eyerly - Insurance Law Hawaii

The insurer unsuccessfully moved for summary judgment, contending it had no obligation to defend two related underlying construction defect cases. Amerisure Ins. Co. v. R.L.Lantana Boatyard, Ltd., 2012 U.S. Dist. LEXIS 2466 (S.D. Fla. Jan. 9, 2012).



An engineering report noted design construction defects and deficiencies in visible, physical improvements at The Moorings at Lantana Condominium. In two lawsuits, The Moorings sued the developer, R.L. Lantana Boatyard ("RLLB"), and the contractor, Current Builders of Florida.



Current Builders was insured by Amerisure. RLLB was named as an additional insured under the Amerisure policy.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Stick to Your Guns on Price and Pricing with Construction Contracts

December 20, 2021 — Christopher G. Hill - Construction Law Musings
In recent posts here at Construction Law Musings, I have discussed the need for clarity of contract, trusting your gut, and assuring that your contract has the necessities. All of these bits of advice (along with my usual advice of working with an experienced construction attorney) are true with regard to commercial construction contracts and apply ten fold in a residential construction (read working for a single/family owner on their house). With a residential project, you, as a construction contractor, are likely to be dealing with the difficult combination of an owner with little or no experience relating to how a construction project is supposed to work and an owner that is emotionally invested in the project because it is their home. Because of the above, and the fact that your project is likely the biggest single investment that the owner has made outside of possibly a prior house, the residential owner will likely be looking over your shoulder and may very well attempt to negotiate down some of the costs that they perceive as the project moves forward. In short, the average person 1. does not know how much the project truly costs the contractor, and 2. feels that because they hold the cash, they can and should have some control over the individual costs of the construction thus making those costs, and by extension, their contract, negotiable right up until the end. 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

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Architects Group Lowers U.S. Construction Forecast

July 30, 2014 — Nadja Brandt – Bloomberg
Spending on non-residential construction in the U.S. will be less than initially projected as state and local governments scale back investments in such properties as schools and health-care buildings, the American Institute of Architects said. Total spending on commercial and institutional development probably will increase 4.9 percent this year, down from an earlier estimate of 5.8 percent, according to a semi-annual survey by the Washington-based group. A slowdown in funding for institutional projects, which include education, health-care, religious and public-safety facilities, has been a drag on the recovery of the wider industry, according to Kermit Baker, the AIA’s chief economist. The group expects institutional-construction spending to fall 0.1 percent this year, compared with January’s projection for an increase of 3.4 percent, Baker said. Read the court decision
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Reprinted courtesy of Nadja Brandt, Bloomberg
Ms. Brandt may be contacted at nbrandt@bloomberg.net

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