Fairfield Connecticut Building Expert Directory

Contractual Fee-Shifting in Litigation: Who Pays the Price?

December 31, 2024 — Caitlin Kicklighter - ConsensusDocs
When disputes on a construction project escalate to litigation, general contractors may find themselves entangled in a costly and time-consuming legal battle. One important concept to understand is contractual fee-shifting under a “prevailing party” provision, which can significantly impact damages recovered in litigation. The general rule, known as the “American Rule,” requires each party to pay its own legal costs, including attorney’s fees, expert witness expenses, and other court-related costs. This differs from other legal systems where the losing party typically pays the winning party’s fees. One exception to the American Rule is contractual fee-shifting, specifically through “prevailing party” provisions, which allows for the award of attorney’s fees and costs when explicitly provided for in a contract. This article explores this exception to the American Rule, delves into the challenges posed by prevailing party provisions, and shares tips to consider for drafting these clauses to improve clarity and minimize uncertainty in the face of litigation. Read the court decision
Read the full story...
Reprinted courtesy of Caitlin Kicklighter, Jones Walker LLP
Ms. Kicklighter may be contacted at ckicklighter@joneswalker.com

National Lobbying Firm Opens Colorado Office, Strengthening Construction Defect Efforts

January 05, 2017 — Beverley BevenFlorez-CDJ STAFF
Michael Best Strategies, a national law and lobbying firm, has recently opened an office in Colorado. According to the Denver Business Journal, the firm “has recruited several big-name associates — a move that could give business leaders even more clout with the Legislature on issues such as construction-defects reform.” One of the firm’s recruits, Jeff Thormodsgaard, the lead lobbyist in the recent movement to make it harder to sue condominium builders, told the Denver Business Journal, “The only change [in the construction-defects reform effort] is that we’re going to be adding more feet and more boots on the ground and more gravitas.” Read the court decision
Read the full story...
Reprinted courtesy of

Withholding Payment or Having Your Payment Withheld Due to Disputes on Other Projects: Know Your Rights to Offset

January 04, 2021 — Christopher C. Broughton, Jones Walker LLP - ConsensusDocs
Introduction The right to offset refers to the common sense ability to reduce or eliminate your payment obligations to a party who owes you money on another contract. With offsets, common law largely tracks common sense. The right of offset is recognized by statute and court decisions in many states as well as under federal law and the U.S. Bankruptcy Code. The right to offset can also be established in the contract or subcontract. But like many things that may seem simple, the right to offset can easily become complex. This article provides an overview of the extent and limits of the right to offset varies from state to state and with federal government contracts about the extent and limits of the right of offset. Construction trust fund statutes add another layer of complications. These variations may not be obvious or intuitive, but they have a tremendous impact on your right to get paid or your right to withhold payment. Because of the variations, you must always confirm the law applicable to your contract or subcontract, which may not be where the project or you are located. Read the court decision
Read the full story...
Reprinted courtesy of Christopher C. Broughton, Jones Walker LLP
Mr. Broughton may be contacted at cbroughton@joneswalker.com

Embracing Generative Risk Mitigation in Construction

February 12, 2024 — Georgia Stillwell - Construction Executive
Project delays have long plagued the construction industry, with risk often identified as the primary culprit. However, finding effective solutions to mitigate risk on complex projects has remained daunting. Traditional methods for simulating risk primarily focus on extending project timelines, overlooking the diverse range of opportunities available for risk mitigation. With the construction industry’s digital transformation, generative methodologies have emerged to handle complex decision-making in uncertain situations. This article aims to shed light on the limitations of existing risk modeling and introduce a novel approach known as generative risk mitigation to enhance decision-making under deep uncertainty. According to McKinsey, 98% of megaprojects experience cost overruns exceeding 30%. Project delays have become so pervasive that the industry has grown accustomed to them. For example, in 2022, the UK government issued ‘The Green Book,’ which requires contingency funds in projects, such as a 44% contingency budget for standard civil projects. This implies that for a $100 million project, you should allocate $144 million to manage expected risks. There is no denying significant academic literature on the root cause of these delays: it is ‘risk,’ and there is an entire industry based on it. Conversations with project directors and risk experts reveal the same issue, different project. And that issue is that we cannot easily forecast risk, qualify the impacts or fully understand the opportunities that exist to mitigate risks and make timely decisions. A method that will finally help us overcome this has emerged within the industry. Reprinted courtesy of Georgia Stillwell, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
Read the full story...
Reprinted courtesy of

Connecticut Supreme Court Further Refines Meaning of "Collapse"

January 13, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Connecticut courts have been inundated with collapse cases the past couple of years due to insureds' living in homes that were constructed with defective concrete manufactured by J.J. Mottes Concrete Company. In a duo of cases, the Connecticut Supreme Court responded to a certified question from the U.S. District Court, holding that collapse required that the building be in imminent danger of falling down. Vera v. Liberty Mut. Fire Ins. Co., 2019 Conn. LEXIS 339 (Conn. Nov. 12, 2019). Plaintiffs had resided in their home since 2009. The home was built in 1993. In August 2015, after learning about the problem of crumbling basement walls affecting homes in their community due to cement manufactured by Mottes, they retained a structural engineer to evaluate their basement walls. The engineer found spider web cracking approximately 1/16 of an inch wide in the basement walls and three small vertical cracks. There were no visible signs of bowing. The engineer did not find that the walls were in imminent danger of falling down, but recommended that the basement walls be replaced. Plaintiffs submitted a claim under their homeowners policy to Liberty Mutual. The claim was denied. The policy did not define collapse, but stated that collapse did not include "settling, cracking, shrinking, bulging or expansion." Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Your Construction Contract

April 08, 2024 — David Adelstein - Florida Construction Legal Updates
Your construction contract is an important topic. What’s even more important is YOUR process for reviewing and negotiating construction contracts. Are you simply acting as a riverboat gambler willing to assume undue risk because you don’t value the investment in understanding what you are signing? If so, it becomes hard to complain about what you agreed to and signed when you chose NOT to invest in the process. Investing in the process means you are working with a construction attorney, you have an insurance broker that understands your industry, you have resources in place to ensure risk is negotiated and allocated, and you understand what risk you are assuming to make sure you are properly protecting and perfecting your rights, and transferring risk downstream. When it comes to construction contracts, there are really three approaches: 1. Riverboat Gambler. This is the “I’ll sign whatever you give me because I don’t want to lose the contract / revenue.” Under this approach, you are not worried about undue risk because you don’t value the investment in the next two approaches. Your thought process is that you’ll care about the risk when an issue pops up, i.e., the riverboat gambler. This is not an approach I’d recommend because it is contrary to the adage, “an ounce of prevention is worth a pound of cure.” This is simply a reactive approach to issues and risks. The other two approaches are more proactive and better suited to understand and manage risk. Read the court decision
Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Two Lawyers From Hunton’s Insurance Recovery Group, Andrea DeField and Latosha Ellis, Selected for American Bar Association’s 2022 “On The Rise” Award

August 15, 2022 — Kevin V. Small - Hunton Insurance Recovery Blog
Partner, Andrea DeField, and counsel, Latosha Ellis, were each recently awarded “On the Rise – Top 40 Young Lawyers” honors by the American Bar Association’s Young Lawyers Division. The award honors 40 of the nation’s most promising lawyers under the age of 40 or who have been licensed for 10 years or less. Recipients demonstrate high achievement, innovation, vision, leadership, and service to the profession and their communities, including extensive knowledge in litigation or transactional work and commitment to pro bono, charitable, or professional volunteer work, all while making a lasting impact in their respective fields. More information may be found here. Reprinted courtesy of Kevin V. Small, Hunton Andrews Kurth Mr. Small may be contacted at ksmall@HuntonAK.com Read the full story... Read the court decision
Read the full story...
Reprinted courtesy of

Statutory Time Limits for Construction Defects in Massachusetts

November 27, 2013 — CDJ STAFF
Construction defect claims are governed by a section of the Massachusetts laws and allow for three years after the work was completed, unless the defect is “inherently unknowable,” according to a post by John Shaffer on the web site of his firm, Marcus, Errico, Emmer & Brooks, a New England law firm that specializes in condominium law. Those “inherently unknowable” defects fall into the six-year statute of repose. If, for example, a roof doesn’t show “significant water leakage” until after the end of the statutory period, “the association is out of luck and the responsible parties are off the hook,” writes Mr. Shaffer. “Even if the association could prove conclusively that the roof was improperly constructed and caused significant damage, the association’s claim will be barred.” One problem condominium associations can face is that defects in the earliest phases of building can sometimes become apparent while the developer still controls the board. “While a developer in control of a board has the same fiduciary obligation as owner-elected trustees to protect the association’s interests, it is probably safe to assume that few developers will be inclined to sue themselves.” Here, Mr. Shaffer notes that owners can join together and either “hasten the transition to owner control of the association” or “convince them to correct the identified deficiencies.” Mr. Shaffer notes that some questions concerning the statute of repose haven’t been answered by the Massachusetts courts. He does assure readers that “developers will no doubt argue that the statute of limitations has expired on defects because the association discovered or ‘should have discovered’ their existence more than three years before the lawsuit was started.” He advises condominium associations to calculate “their filing deadlines as conservatively as possible.” Read the court decision
Read the full story...
Reprinted courtesy of

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES