Fairfield Connecticut Building Expert Directory

DC Circuit Issues Two Important Clean Air Act and Administrative Law Decisions

December 16, 2019 — Anthony B. Cavender - Gravel2Gavel
The U.S. Court of Appeals or the District of Columbia has recently issued two important rulings on the Clean Air Act in particular and administrative law in general: California Communities Against Toxics, et al., v. EPA and Murray Energy Corporation v. EPA. The Battle of the Memos: Seitz Makes Way for Wehrum In the California Communities case, decided on August 20, 2019, the court held, in a 2 to 1 decision, that a petition to review a change in EPA policy announced in an agency memorandum which reversed an agency policy announced nearly 25 years ago in another agency memo must be rejected because the memo at issue was not a “final agency action” subject to the Administrative Procedure Act (APA). In 1995, the “Seitz Memo,” which interpreted Section 112 of the Clean Air Act and addresses the regulation and control of hazardous air pollutants from stationary sources, stated that once a source of toxic emissions is classified as “major,” the facility remains subject to regulation as a major source even if the facility makes changes to the facility to limit its potential to emit such toxics below the major source threshold. Then, in 2018 under a new administration, the “Wehrum Memorandum” was issued which reversed this policy and its interpretation of the law. (Both memos were issued without any kind of advance notice or opportunity to comment.) If a source takes steps to limit its potential to emit, then it may be regulated as an area source, and subject to less rigid regulation. The court majority held that the Wehrum Memo was not a final agency action and was not subject to judicial review when it was measured against both prongs of the “finality test” devised by the Supreme Court in the cases of Bennet v. Spear, 520 US 154 (1997) and US Army Corps of Engineers v. Hawkes, 136 S. Ct. 1807 (2016). While the memo undoubtedly represented the consummation of the agency’s decision-making process, the memo had no direct and appreciable legal consequences, and not therefore being a final action, the case must be dismissed. Judge Rogers filed a strong dissenting opinion. 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

Subcontractors Eye 2022 with Guarded Optimism

October 11, 2021 — Louise Poirier - Engineering News-Record
While work continues to be plentiful for specialty contractors across the five-state region of Arkansas, Louisiana, Mississippi, Oklahoma and Texas, concerns remain for how the project landscape will continue to evolve as the impacts of the COVID-19 pandemic continue to weigh on the world. Reprinted courtesy of Louise Poirier, Engineering News-Record Ms. Poirier may be contacted at poirierl@enr.com Read the full story... Read the court decision
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Continuity and Disaster Recovery Plans for Contractors: Lessons From the Past

November 28, 2022 — Rich Sghiatti - Construction Executive
There is no shortage of natural disasters to illustrate the importance of being prepared. Wildfires, hurricanes, winter storms and floods can hit a construction job site hard. Appropriate property-casualty insurance and surety bonds are necessary protections for a contractor and project owner. But the addition of well-thought-out continuity and disaster recovery plans will better position the contractor to deal with whatever Mother Nature brings. Consider Hurricane Katrina, the costliest hurricane to hit the United States. Pummeling Florida, Louisiana and Mississippi in August 2005, the storm led to 1,833 fatalities and an estimated $108 billion in damages. Levees meant to protect New Orleans from Lake Pontchartrain did not hold, flooding 80% of the city. Utilities including power, water and sanitary sewers were severely damaged. Homes were destroyed. Roadways were closed. Communications systems were down. Contractors who had good business continuity and disaster recovery plans fared better than those who did not. Reprinted courtesy of Rich Sghiatti, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Yet Another Reminder that Tort and Contract Don’t Mix

January 25, 2021 — Christopher G. Hill - Construction Law Musings
I have stated on numerous occasions here at Musings that in Virginia, contract claims and tort claims (read fraud) don’t mix. A recent case from the Federal District Court for the Eastern District of Virginia presents another example of this principle. In Itility LLC v. The Staffing Resource Group, Judge Ellis of the Alexandria Division, considered ITility’s claims of fraud and breach of contract against SRG and one of its officers based upon SRG’s alleged violation of its duties under a teaming agreement. The claim by ITility was that TSRG provided false and misleading resumes and thus damaged ITility. SRG filed a Motion to Dismiss and the Court was therefore required to resolve the following issues: (1) whether plaintiff’s fraud claim is barred by Virginia’s “source of duty” rule; (2) whether plaintiff’s claim for tortious interference with a business expectancy is barred by SRG’s participation in the business expectancy, and (3) whether the teaming agreement between the parties bars plaintiff’s claims for consequential and punitive damages. Reprinted courtesy of The Law Office of Christopher G. Hill Mr. Hill may be contacted at chrisghill@constructionlawva.com Read the full story... Read the court decision
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Judgment Proof: Reducing Litigation Exposure with Litigation Risk Insurance

March 04, 2024 — Latosha M. Ellis & Charlotte Leszinske - Hunton Insurance Recovery Blog
It is not just your imagination: verdicts are getting bigger. So-called “nuclear verdicts” have increased in size and frequency over the past decade, particularly after the COVID-19 pandemic. Litigation risk insurance is a little known, but highly effective, option meant to compliment traditional insurance products and provide additional protection for policyholders nervous about litigation exposure. Unfortunately, it is difficult to predict the exposure presented by any particular case. Between 2020 and 2022, the median verdict increased 95%—from $21.5 million to $41.1 million. In 2022, a jury handed down a verdict worth $7.3 billion for injury to a single plaintiff. Even if an injury or loss is minor, juries have shown that they are willing to penalize corporate defendants with punitive damages that significantly exceed the award of compensatory damages. With such uncertainty and millions (if not billions) at stake, companies can reduce risk with litigation risk insurance. Three key types of litigation risk insurance include: (1) punitive wrap insurance, (2) adverse judgment insurance, and (3) judgment preservation insurance. Reprinted courtesy of Latosha M. Ellis, Hunton Andrews Kurth and Charlotte Leszinske, Hunton Andrews Kurth Ms. Ellis may be contacted at lellis@HuntonAK.com Ms. Leszinske may be contacted at cleszinske@HuntonAK.com Read the court decision
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Insurer's Attempt to Limit Additional Insured Status Fails

December 01, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The court disagreed with the insurer's attempt to limit additional insured status based upon the contract between the parties. Mays v. In re All C-Dive LLC, 2017 U.S. Dist. LEXIS 185874 (E.D. La. Nov. 9, 2017). Five employees of C-Dive LLC filed a lawsuit after belng injured in a pipeline explosion aboard a vessel servicing a pipeline owned by Gulf South Pipeline Company. During the work, there was a release of gas that caused an explosion and injured the employees. 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

Killer Subcontract Provisions

January 20, 2020 — Patrick McNamara - Porter Law Group
We are frequently requested by subcontractor clients to review the subcontract that has been prepared by the prime contractor, before our client signs it. While no two agreements are identical, there are a number of problematic contract provisions that appear in many agreements. Here is a list of ten such provisions (and their variations) that are potential “deal breakers”:

PAY IF/WHEN PAID (e.g. “Contractor shall have the right to exhaust all legal remedies, including appeals, prior to having an obligation to pay Subcontractor.”) “Pay-if-paid” provisions (“Receipt of payment from Owner shall be a condition precedent to Contractor’s duty to pay Subcontractor”) are illegal in California. However, the only legal limit on “Pay-When-Paid” provisions is that payment must be made “within a reasonable time.” The example above, as written, essentially affords the prime contractor a period of several years following completion of the project before that contractor has an independent duty to pay its subcontractors – not a “reasonable” amount of time, to those waiting to be paid. A compromise is to provide a time limit, such as 6 months or one year following substantial completion of the project.
CROSS-PROJECT SET-OFF (e.g. “In the event of disputes or default by Subcontractor, Contractor shall have the right to withhold sums due Subcontractor on this Project and on any other project on which Subcontractor is performing work for Contractor.”) Such provisions are problematic and likely unenforceable, as they potentially bar subcontractors’ lien rights. Such provisions should be deleted.
CONTRACTOR/SUBCONTRACTOR RESPONSIBILITY FOR DESIGN QUALITY (e.g. “Subcontractor warrants that the Work shall comply with all applicable laws, codes, statutes, standards, and ordinances.”) Unless a subcontractor’s scope of work expressly includes design work, this provision should either be deleted or modified, with the addition of the following phrase: “Subcontractor shall not be responsible for conformance of the design of its work to applicable laws, codes, statutes, standards, and ordinances.”

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Reprinted courtesy of Patrick McNamara, Porter Law Group
Mr. McNamara may be contacted at pmcnamara@porterlaw.com

Warning! Danger Ahead for Public Entities

July 30, 2019 — Michael J. Baker - Snell & Wilmer Under Construction Blog
Public entities are known to assert False Claims actions “to up the ante” to intimidate and aggressively address contractor construction claims. This strategy in the case of John Ross of Industrial Sheet Metal, Inc. (JRI) V. City of Los Angeles Department of Airports (LAWA), 29 Cal. App. 5th 378 (2018), backfired on the public entity, LAWA, in a big way and should serve as a warning to public entities about expanding claims to include False Claim actions. In this case, LAWA was awarded $1 in contract damages, its California False Claims Act (CFCA) claim was rejected by the jury as were JRI’s claims against LAWA. Despite losing on the substantive contract claims, the trial court found that JRI “prevailed in the action” under the relevant CFCA fee provision, Government Code 12652, subd. (g)(9)(B), regardless of JRI’s failure to prevail in the action as a whole. The California Appellate Court (hereinafter “Court”) affirmed the trial court’s finding. The CFCA is analogous to the federal False Claims Act (FFCA; 31 U.S.C. 3729 et seq.). Since the CFCA is patterned on similar federal legislation, it was appropriate for the Court to look to precedent construing this similar federal act in interpreting the CFCA provisions. Accordingly, the Court looked at the False Claims Act cases for guidance in upholding the trial court’s decision in its determination that JRI was the “prevailing party” for determining an attorney’s fees award against LAWA. Read the court decision
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Reprinted courtesy of Michael J. Baker, Snell & Wilmer
Mr. Baker may be contacted at mjbaker@swlaw.com

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