FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Effective October 1, 2019, Florida General Contractors Have a Statutory Right to Recovery of Attorney Fees Against a Defaulted Subcontractor’s Surety

July 01, 2019 — Warren E. Friedman - Peckar & Abramson, P.C.
Florida contractors will soon have a level playing field, at least related to the right to recovery of attorney fees in certain circumstances. Effective October 1, 2019, the Florida statute by which legal fees may be recovered from insurers and sureties was amended to expressly afford that right to contractors. Florida’s Insurance statute, Chapter 627, affords a right to recovery of attorney fees when a judgment is obtained against an insurer and in favor of any insured pursuant to a policy or contract executed by the insurer. See Fla. Stat. § 627.428. In the construction context, the Florida Legislature has also applied this right to the recovery of attorney fees from sureties, for example in circumstances where suit is brought against a surety under a payment or performance bond. See Fla. Stat. § 627.756. But there was an oddity to this statute – it specifically provided this right for “owners” and “subcontractors”, but “contractors” were skipped over. For as long as Section 627.756, Florida Statutes has been on the books, the right to recovery of attorney fees against a surety under a payment or performance bond was only afforded to owners, subcontractors, laborers, and materialmen. Specifically, since at least 1977, Section 627.756, Florida Statutes substantially provided as follows (emphasis added): Section 627.428 applies to suits brought by owners, subcontractors, laborers, and materialmen against a surety insurer under payment or performance bonds written by the insurer under the laws of this state to indemnify against pecuniary loss by breach of a building or construction contract. Owners, subcontractors, laborers, and materialmen shall be deemed to be insureds or beneficiaries for the purposes of this section. Read the court decision
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Reprinted courtesy of Warren E. Friedman - Peckar & Abramson, P.C.
Mr. Friedman may be contacted at wfriedman@pecklaw.com

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“License and Registration, Please.” The Big Risk of Getting Busted for Working without a Proper Contractor’s License

July 25, 2021 — Christopher A. Henry & Mia Hughes - ConsensusDocs
The need for contractors to maintain the proper contracting license may seem like a mundane, clerical detail, and generally is just that. If, however, the contractor ignores or mishandles paperwork and the proper license is not in hand, licensing may go from a mundane, clerical detail to a financial catastrophe. An unlicensed contractor may be barred from asserting claims or collecting payments for work already performed; the contractor may even be required to return payments for unlicensed work performed. A recent case in Georgia, a state that had no state-wide general contractor’s license requirement in effect until 2008 illustrates the risk of unlicensed work.[1] In Saks Management and Associates, LLC v. Sung General Contracting, Inc.,[2] the court ruled that without a license the general contractor did not have the right to enforce a contract. The contractor’s claims for payment failed, and the mundane, clerical error led a major financial loss. This disastrous result for the Georgia contractor is far from an outlier, and is a real risk in many states. Reprinted courtesy of Christopher A. Henry, Jones Walker LLP and Mia Hughes, Jones Walker LLP Mr. Henry may be contacted at chenry@joneswalker.com Read the court decision
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Revisiting OSHA’s Controlling Employer Policy

December 21, 2017 — Wally Zimolong - Zimolong LLC
The United States Court of Appeals for the 5th Circuit has been asked to review OSHA’s twenty year old “controlling employer” policy. As many contractors are surprised to learn, under OSHA’s controlling employer policy, you can be given an OSHA citation even when your own employee is not exposed to the alleged hazard. A. The Controlling Employer Policy OSHA’s current controlling employer policy has been effective since 1999. That policy applies to multi-employer worksites, which means virtually all construction sites. Under the policy, OSHA can cite the creating, exposing, correcting, or controlling employer. A creating employer is one who creates the hazard to which workers are exposed. The exposing employer is one who permits his employees to be exposed to the hazard, whether it created the hazard or not. The correcting employer is one who is responsible with correcting known hazards. Finally, the controlling employer is one “who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.” Most general contractors and CM’s are controlling employers. Under OSHA’s policy, a contractor’s OSHA safety obligations hinges on whether it is a creating, exposing, correcting, or controlling employer. The creating, exposing, and correcting contractors obligations are fairly straightforward. However, the controlling contractors obligations are more nuisanced. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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White House Hopefuls Make Pitches to Construction Unions

May 20, 2019 — Bruce Buckley - Engineering News-Record
As the 2020 presidential election draws nearer, many Democratic hopefuls are beginning to seek construction unions’ support. Eight declared candidates made their pitches to members of the North America’s Building Trades Unions at the group’s legislative conference April 9-10 in Washington, D.C. Several promised a major infrastructure package of $1 trillion or more, which aligns with the trades’ legislative agenda. But many seeking endorsement will wrestle with balancing calls for a green economy and unions’ demand for traditional oil and gas sector jobs. Read the court decision
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Reprinted courtesy of Bruce Buckley, ENR
ENR may be contacted at ENR.com@bnpmedia.com

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Use It or Lose It: California Court of Appeal Addresses Statutes of Limitations for Latent Construction Defects and Damage to Real Property

August 02, 2017 — Omar Parra & Jesse M. Sullivan - Haight Brown & Bonesteel LLP
The First Appellate District of the California Court of Appeal recently confirmed California’s latent defect statute of limitations, codified in California Code of Civil Procedure section 337.15, bars only claims based on construction defects. Estuary Owners Association v. Shell Oil Company, No. A145516, (Cal. Ct. App. July 26, 2017). The Court also reemphasized that under California’s three-year statute of limitations for damage to real property, delineated in California Code of Civil Procedure section 338(b), the actual and constructive knowledge of the prior landowner is imputed to the current landowner. Estuary Owners Association concerned the development and construction of a 100-unit condominium by Signature at the Estuary, LLC (“Signature”) on land Shell Oil Company (“Shell”) previously used as a fuel distribution terminal. Construction of the condominiums was completed in 2006. In 2008, it was discovered that residual concentrations of petroleum related chemicals remained in the soil, soil gas, and groundwater beneath the development. Later that year, Signature revealed that the condominiums had been constructed with moisture barriers beneath the building slabs instead of the vapor/gas barriers called for in the corrective action plan. Reprinted courtesy of Omar Parra, Haight Brown & Bonesteel LLP and Jesse M. Sullivan, Haight Brown & Bonesteel LLP Mr. Parra may be contacted at oparra@hbblaw.com Mr. Sullivan may be contacted at jsullivan@hbblaw.com Read the court decision
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Employee Screening and Testing in the Covid-19 Era: Getting Back to Work

August 10, 2020 — Aaron C. Schlesinger & Shannon D. Azzaro - Peckar & Abramson
Currently Available Workplace Protocols for Employers Employers seeking to minimize the risk of COVID-19 transmission in the workplace should consider from among the three currently available protocols: Written Questionnaires; Temperature Checks; and Viral or Diagnostic Testing. When implementing a screening or testing protocol, employers should explain the following in writing to employees: (1) the specific screening process or test utilized by the employer; (2) employee compliance expectations and any consequences for a refusal to participate; (3) how employee privacy will be protected; (4) if screening, the general benchmarks that indicate the employee has “passed” (e.g., temperature below 100.4ºF, per CDC guidelines); and (5) the outcome of an unsuccessful screen or test (e.g., being sent home from the workplace). Employers must also ensure that those administering the screening and/or testing are properly trained, and that appropriate written acknowledgements are obtained from employees consenting to the applicable protocol. Reprinted courtesy of Aaron C. Schlesinger, Peckar & Abramson and Shannon D. Azzaro, Peckar & Abramson Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com Ms. Azzaro may be contacted at sazzaro@pecklaw.com Read the court decision
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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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Calling Hurricanes a Category 6 Risks Creating Deadly Confusion

March 25, 2024 — Brian K Sullivan - Bloomberg
Category 5 has become part of the world’s lexicon to describe a disaster of monumental proportion. Now, thanks to climate change, a pair of scientists don’t think that is a dire enough level to describe hurricanes. They raise the possibility, on a “hypothetical” basis, for a Category 6. Global warming has increased the energy available for storms to grow stronger, according to a paper by Michael Wehner, senior scientist at the Lawrence Berkeley National Lab, and James Kossin, climate and atmospheric professor at the University of Wisconsin. Their work was published in Proceedings of the National Academy of Sciences of the US. The scientists make a case for adjusting the five-step, Saffir-Simpson Hurricane Wind Scale, which is used to describe hurricane power. A Category 5 is assigned when storm winds reach 157 miles per hour, and today that goes up to the limit of physics. Wehner and Kossin suggest considering anything over 192 mph a Category 6. Read the court decision
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Reprinted courtesy of Brian K Sullivan, Bloomberg

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