FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Owners Bound by Arbitration Clause on Roofing Shingles Packaging

December 04, 2018 — David Adelstein - Florida Construction Legal Updates
In today’s age, you are probably familiar with terms such as a shrinkwrap contract (terms and conditions), which is a boilerplate contract included with a retained product, or a clickwrap contract (terms and conditions), which is generally a boilerplate contract that is digitally accepted when purchasing software or an electronic product. These are are boilerplate terms from manufacturers or vendors of products or software. Arbitration provisions in these types of agreements have generally found to be enforceable. In the recent ruling by the Eleventh Circuit Court of Appeals in Dye v. Tamko Building Products, Inc., 2018 WL 5729085 (11th Cir. 2018), the court held that an arbitration provision included in a product-purchase limited warranty agreement on the package of every roofing shingles binds a homeowner to arbitrating disputes over the opened and retained product with the manufacturer, irrespective of whether the shingles were purchased by an owner’s roofer. The shingles do not have to be purchased and opened by the owner for the arbitration provision to apply. If the roofer uses or retained the shingles for purposes of the owner’s home, such knowledge of the product-purchase limited warranty agreement on the packaging of the shingles is imputed to the owner (end-user of the shingles). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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New Washington Law Nixes Unfair Indemnification in Construction Contracts

April 25, 2012 — Douglas Reiser, Builders Council Blog

Contractual fairness ? it is part of my mantra. If you read the blog, you probably know that I preach brevity, balance and clarity in contracting. The State of Washington did well to finally eliminate something that has angered me for quite some time ? unfair indemnification.



One of my favorite construction contract revisions is mutual indemnification. Many “up the chain” contractors and owners are going to stick you with a unilateral indemnification clause that protects them for just about everything, including their own fumbling of a project. Adding mutual indemnification provides some balance, and keeps parties reliant upon each other for success on the job site.



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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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Challenging and Defending a California Public Works Stop Payment Notice: Affidavit vs. Counter-Affidavit Process

October 21, 2019 — William L. Porter - Porter Law Group
One of the most effective collection procedures available to subcontractors and suppliers to California Construction projects is the “stop payment notice” procedure found under California Civil Code sections 9350 – 9364. Under this procedure, the unpaid subcontractor or supplier may serve the stop payment notice on the public entity and the direct or “prime” contractor and cause the public entity to withhold from the direct contractor 125% of the funds identified in the stop payment notice. Thereafter, funds will not generally be released unless the parties reach a settlement agreement or the issue is decided through litigation, arbitration or mediation. There is however an alternative procedure available to direct contractors to expedite the determination of whether a stop payment notice is valid and to possibly obtain an early release of the funds withheld by the public entity. This “summary proceeding” process could result in release of funds to the direct contractor in less than 30 days. The summary proceeding can also be challenged by the unpaid subcontractor or supplier. All public works contractors, subcontractors and suppliers should be aware of the process. The process for direct contractors to release a stop payment notice and for subcontractors and suppliers to challenge the process works as follows: After a California stop payment notice has been served and the public entity has withheld funds accordingly, the direct contractor may challenge the stop payment notice by serving an “affidavit” (basically a sworn statement showing why the stop notice is not valid) on the public entity, demanding that the public entity release all funds withheld. Upon receipt of such an affidavit, the public entity will serve the subcontractor or supplier who served the stop payment notice with a copy of the affidavit, along with a “demand for release of funds”. If the stop payment notice claimant does not respond with a “counter-affidavit” by the date stated on the notice sent by the public entity (“not less than 10 days nor more than 20 days after service on the claimant of a copy of the affidavit”), then the public entity will be within its rights to release the withheld funds to the direct contractor, and the stop payment notice claimant will relinquish its stop payment notice rights. Read the court decision
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Reprinted courtesy of William L. Porter, Porter Law Group
Mr. Porter may be contacted at bporter@porterlaw.com

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The G2G Year in Review: 2021

January 24, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
With 2021 now behind us, we wanted to share our top five most-read articles of 2021 from Gravel2Gavel. The most-read blog posts covered real estate and construction industry trends ranging from Proptech, smart construction, COVID-eviction moratoriums, and blockchain tokenization. Throughout the year, G2G posts provided deep industry insight and summarized hot topics addressing the legal implications and disruptions that affected the market, and we will continue to expand on these insights in 2022. Our 2021 roundup:

1. Blockchain Innovations and Real Estate: NFTs, DeFis and dApps by Craig A. de Ridder

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Maui Wildfire Cleanup Advances to Debris Removal Phase

February 05, 2024 — James Leggate - Engineering News-Record
Contractors hauled the first truckload of debris from homes destroyed by last year’s wildfires in Lahaina, Hawaii, on Jan. 16. The move marked the beginning of the second phase of debris removal efforts coordinated by federal, state and local officials. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Property Insurance Exclusion for Constant or Repeated Leakage of Water

March 14, 2018 — David Adelstein – Florida Construction Legal Updates
A property insurance policy, no different than any insurance policy, contains exclusions for events that are NOT covered under the terms of the policy. One such common exclusion in a property insurance policy is an exclusion for damages caused by "constant or repeated seepage or leakage of water…over a period of 14 or more days." The application of this exclusion was discussed in the recent opinion of Hicks v. American Integrity Ins. Co. of Florida, 43 Fla. L. Weekly D446a (Fla. 5th DCA 2018). In this case, while the insured was out of town, the water line to his refrigerator started to leak. When the insured return home over a month later, the supply line was discharging almost a thousand gallons of water per day. The insured submitted a property insurance claim. The property insurer engaged a consultant that opined (likely, correctly) that the water line had been leaking for at least five weeks. Based on the above-mentioned exclusion, i.e., that water had been constantly leaking for over a period of 14 days, the insurer denied coverage. This denial led to the inevitable coverage dispute. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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Of Pavement and Pandemic: Liability and Regulatory Hurdles for Taking It Outside

September 21, 2020 — Jeff Clare - Gravel2Gavel Construction & Real Estate Law Blog
As the COVID-19 pandemic continues to ravage the U.S. economy, restaurateurs and bar owners are feeling the brunt of business closures and adaptations necessary to combat the disease. Where cozy and intimate dining was once de rigueur for the restaurant industry, these businesses must now shift to outdoor dining with adequate space and airflow between parties. In response to these concerns, many cities across the country who once fought against the loss of any parking have turned to a post-automobile tactic: outdoor dining in thoroughfares and parking lots. While at first glance it might seem a simple enough prospect—throw some chairs and a table out front, and voilà—property owners and restaurateurs must remain cognizant of various liability and regulatory hurdles for operating outside. With Great Space Comes Great … Potential Liability. One of the largest concerns for landowners in operating in a new space for business is liability. Who is on the hook if someone gets hurt dining in an impromptu dining space in a parking lot? Prior to beginning new outdoor dining operations, landowners and restaurateurs should contact their insurance providers to ensure that the new space is included in their insurance coverage. This is a particular concern for larger commercial landowners who may have various businesses vying to use their parking lot for business. Many leases have carefully crafted clauses limiting where a business may operate and where their liability ceases. Landowners and business owners should review their leases for any such clauses and negotiate with one another to ensure that liability in these new spaces is clearly defined. Read the court decision
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Reprinted courtesy of Jeff Clare, Pillsbury
Mr. Clare may be contacted at jeff.clare@pillsburylaw.com

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Conflicts of Laws, Deficiency Actions, and Statutes of Limitations – Oh My!

May 10, 2017 — Ben Reeves - Snell & Wilmer Real Estate Litigation Blog
What law governs a deficiency action if the choice-of-law provisions in the note and deed of trust conflict? The Arizona Court of Appeals answered that very question in ZB, N.A. v. Hoeller, No. 1 CA-CV 16-0071 (Ct. App. April 15, 2017). It turns out, the note controls. The Facts In ZB, ZB, N.A. (ZB), a Utah bank, lent money to the Hoellers to purchase a commercial property in Missouri. The note included a choice-of-law provision stating that Utah law governed the debt. The deed of trust securing the commercial property, however, provided that Missouri law controlled “procedural matters related to the perfection and enforcement of [ZB’s] rights and remedies against the [p]roperty.” In 2012, the Hoellers defaulted, and the bank recovered the property through a trustee’s sale. Read the court decision
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Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

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