FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Pennsylvania Homeowner Blames Cracks on Chipolte Construction

October 14, 2013 — CDJ STAFF
“Everything was shaking, like a big bomb went off.” That’s how Hersey, Pennsylvania resident Maria Yi described the situation during construction of a Chipolte restaurant next to her home. She and other people thought it was an earthquake, but then found it came from the construction site. She told the operator of the machine to stop. Yi and her husband later found cracks in their home which they attribute to the construction activity. Township supervisors were sympathetic to Yi, with Kelly Fedeli, the Supervisor Vice Chairwoman, told Yi that she feels “very badly about what happened to you.” And Chuck Emerick, the township code officer told Yi that “we’re doing everything we can to help you.” This is not Yi’s first conflict with the proposed restaurant. Yi was involved in a lawsuit that sought to stop the restaurant from being built at all. That suit is being appealed, but even if Yi were to win at the appeal, the restaurant would go forward. Said Yi of the supervisors, “they told me there would be no problem.” Read the court decision
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Congratulations to Jonathan Kaplan on his Promotion to Partner!

February 10, 2020 — Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is proud to announce the promotion of Jonathan Kaplan to Partner! Jonathan has been with the firm for nearly eight years out of our Newport Beach office. He focuses his practice on general liability defense and construction litigation matters, in addition to handling high-profile plaintiff defect cases. Jonathan earned his law degree from Chapman University School of Law, obtaining a certificate in Environmental, Real Estate and Land Use Law, and went to undergrad at the University of Washington. Jonathan is an active participant within the firm’s Hiring Committee and assists with legal recruitment at the prominent Orange County law schools. Jonathan is also an avid hiker and has coordinated several hiking events for our Southern California offices. Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

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Recovering Unabsorbed Home Office Overhead Due to Delay

May 30, 2022 — David Adelstein - Florida Construction Legal Updates
In the preceding article, I discussed the use of a retrospective as-built delay analysis in a case before the Civilian Board of Contract Appeals (CBCA). This case also discussed a damages component in certain delay claims known as unabsorbed home office overhead—a challenging damages component to recover because this deals with indirect costs as opposed to direct costs. Unabsorbed home office overhead is a damages component when the contractor is on standby, but this is NOT as easy as just claiming standby thereby you are automatically entitled to unabsorbed home office overhead. There are requirements that MUST be met.

To obtain an equitable adjustment for unabsorbed home office overhead as compensation for being on standby, [the contractor] must initially show “[1] a government-caused delay of uncertain duration,” that “[2] the delay extended the original time for performance” or precluded the contractor from finishing earlier than scheduled, and that “[3] the contractor [was] on standby and unable to take on other work during the delay period. CTA I, LLC v. Department of Veteran Affairs, CBCA 5826, 2022 WL 884710 (CBCA 2022) quoting Nicon, Inc. v. U.S., 331 F.3d 878, 883 (Fed. Cir. 2003).

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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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Legal Matters Escalate in Aspen Condo Case

January 28, 2014 — Beverley BevenFlorez-CDJ STAFF
On January 3rd of this year, Chad Abraham reported in the Aspen Daily News that the Ute City building—a condominium on Hopkins Avenue in Aspen, Colorado—“lacks proper entryways to apartments and a basement-level nightclub space for both tenants and the disabled.” The owners, Michael Sedoy and Natalia Shvachko, have been sued by the city after refusing “to allow access to an eastside staircase and elevator for other building residents and disabled patrons of a basement restaurant,” according to the Aspen Daily News. “Their stance has forced the other tenants and the disabled to use a westside, alleyway service entrance, according to the city.” Sedoy and Schvachko’s attorney retorts in court documents “that the city approved of a building map and declarations that allow access through the westside entry in the alley.” Furthermore, in another article by Abraham published in the Aspen Daily News on January 25th, he relates that the owners had filed more than “more than 30 noise complaints with the police and the city’s environmental health department about eateries and bars around their home on Restaurant Row. That led to a trial for the Aspen Brewing Co., which a jury acquitted in about 10 minutes last week.” In addition, the couple is being sued by Mountain Home Window Fashions, the Ute City building general contractor. According to the lawsuit as reported by the Daily Aspen News, Mountain Home claims they are owed $12,332. The owners have counter-sued, alleging “that there were defects in Mountain Home Window Fashions’ work” and that one of the employees “made unauthorized charges on Sedoy’s credit card.” Read the full story, January 3rd article ... Read the full story, January 25th article ... Read the court decision
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New York Appellate Court Expands Policyholders’ Ability to Plead and Seek Consequential Damages

February 27, 2019 — Michael S. Levine & Joshua S. Paster - Hunton Andrews Kurth
In a huge win for policyholders, a New York appellate court, in D.K. Property, Inc. v National Union Fire Insurance Company of Pittsburgh, Pa., held that an insured need not provide a detailed factual description or explanation for why consequential damages are recoverable at the pleading stage. Rather, an insured’s complaint must only (i) specify the types of consequential damages claimed; and (ii) allege that those damages reasonably were contemplated by the parties prior to contracting. Here, D.K. Property’s building was damaged as a result of construction on an adjoining building, and it timely filed a claim with National Union under a policy that covers “direct physical loss or damage to” the building. National Union neither paid the claim nor disclaimed coverage. Instead, according to D.K. Property, National Union made unreasonable and increasingly burdensome information demands over a three-year period, which it alleges was a “tactic” to make pursuing the claim so expensive that D.K. Property would abandon the claim. As a result of the delay, D.K. Property alleges the structural damage to its building has worsened. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Joshua S. Paster, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Paster may be contacted at jpaster@HuntonAK.com Read the court decision
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DC District Court Follows Ninth Circuit’s Lead Dismissing NABA’s Border Wall Case

April 10, 2019 — Anthony B. Cavender - Gravel2Gavel
On February 14, the U.S. District Court for the District of Columbia dismissed the complaint of the National American Butterfly Association (NABA) alleging that the U.S. Government’s border wall preparation and law enforcement activities at NABA’s National Butterfly Center, located in South Texas along the Rio Grande River, violated federal environmental laws (National Environmental Policy Act (NEPA)) and the Endangered Species Act (ESA)) as well as NABA’s constitutional rights. The case is National American Butterfly Association v. Nielsen, et al. On January 25, 2017, the President issued an Executive Order to the Secretary of the Department of Homeland Security (Secretary) to “take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border” with Mexico. A few weeks later, the Secretary issued a memorandum to the U.S. Customs and Border Enforcement to implement the Executive Order. The land occupied by the NABA has been affected by these actions, as well as other actions taken by the Secretary pursuant to her authority under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), located at 8 U.S.C. § 1103. 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

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Toolbox Talk Series Recap - Guided Choice Mediation

November 05, 2024 — Douglas J. Mackin - The Dispute Resolver
In the September 26, 2024 edition of Division 1's Toolbox Talk Series, Clifford Shapiro presented on Guided Choice Mediation (“GCM”) and how it can lead to better outcomes in construction disputes. GCM is an approach to mediation that focuses on early and efficient dispute resolution, which prominent mediators created as a public interest project. Shapiro described his particular variant of GCM based on his experience while acknowledging that other Guided Choice Mediators’ processes may differ from his in various ways. Shapiro’s brand of GCM focuses on ensuring that parties have reasonable expectations and appropriate settlement authority prior to arriving at a mediation. Some of the strategies to help accomplish these noble goals are (i) early mediator engagement, (ii) mediator facilitation of information exchange, (iii) mediator involvement with insurance issues (particularly important in construction defect cases, especially those with multiple defendants), (iii) pre-mediation ex parte meetings, and (iv) mediator participation in risk analysis. These strategies are not typical in the more traditional/historic approach to mediation in which mediation is scheduled based on a scheduling order, mediation statements are sent to the mediator roughly a week before the scheduled mediation (and sometimes not even shared with anyone other than the mediator), and the parties speak with the mediator for the first time on the day of the mediation. Read the court decision
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Reprinted courtesy of Douglas J. Mackin, Cozen O’Connor
Mr. Mackin may be contacted at dmackin@cozen.com

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Appellate Court of Maryland Construes Notice Conditions of A312 Performance Bond in Favor of Surety

January 02, 2024 — Joel P. Williams - White and Williams LLP
The Appellate Court of Maryland issued a reported opinion in a case construing an American Institute of Architects (“AIA”) A312 performance bond. In Wildewood Operating Company, LLC v. WRV Holdings, LLC, et al. 2023 Md. App. LEXIS 720 (Oct. 30, 2023), the Appellate Court of Maryland held that a performance bond surety was discharged from liability where the owner/obligee failed to give the surety notice of the contractor’s default termination until after a third party had completed the work. The project concerned the construction of an assisted living facility in St. Mary’s County, Maryland. The owner, Wildewood Operating Company, LLC, entered into an A312-2010 performance bond with Clark Turner Construction, LLC, as contractor, and First Indemnity of America Insurance Company, as surety. When Clark Turner failed to complete certain stormwater management work adjacent to the site, Wildewood, Clark Turner, and other parties entered into a Work Agreement to address completion of the work. The surety was not a party to the Work Agreement. Read the court decision
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Reprinted courtesy of Joel P. Williams, White and Williams LLP
Mr. Williams may be contacted at williamsj@whiteandwilliams.com

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