Fairfield Connecticut Building Expert Directory

Pacing in Construction Scheduling Disputes

September 14, 2017 — Luke Mecklenburg - Snell & Wilmer Real Estate Litigation Blog
On a high level, construction delay litigation involves sorting out the impacts to the critical project path and determining which party is responsible for those impacts. One of the more difficult elements of this process is determining whether a delay would have occurred regardless of one party’s critical path impact due to a separate, independent impact to the critical path by the other party. For example, a contractor cannot collect delay damages for delays caused by the owner if the contractor itself was causing independent impacts that would have pushed off the completion date anyway. However, the concept of “pacing” provides a potential defense for a party who is not on pace with the as-planned schedule for noncritical activities, even where those activities are still ongoing after the planned completion date. “Pacing delays” are a type of concurrent delay that occur when one party makes a conscious decision to decelerate or slow down the pace of noncritical activities to keep pace with the critical delays of another party. A more formal definition would be “deceleration of the work of the project, by one of the parties to a contract, due to a delay caused by the other party, so as to maintain steady progress with the revised overall project schedule.” Zack, Pacing Delays–The Practical Effect, Construction Specifier 47, 48 (Jan. 2000). A party to the construction process may decide to slow down its performance of noncritical activities to keep pace with the delayed progress. For example, contractors may adjust the pace of their work in light of delays in owner-furnished equipment, delays by other multiple prime contractors, delays in permits, limited access, or differing site conditions. Owners may slow down their response time to requests for information or submittals, or postpone the delivery of owner-furnished equipment or the processing of change orders. Id. at 48. Read the court decision
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Reprinted courtesy of Luke Mecklenburg, Snell & Wilmer
Mr. Mecklenburg may be contacted at lmecklenburg@swlaw.com

Houston’s High Housing Demand due to Employment Growth

August 27, 2014 — Beverley BevenFlorez-CDJ STAFF
According to a Metrostudy survey, as published in Builder, “The quarterly starts rate in Houston rose 16% to 7,977, and was up 3.5% when compared to the second quarter of 2013. The annual starts rate increased 1%, to 28,990 over the previous quarter, and up 10% from the second quarter of 2013.” “Houston’s housing market continues to outperform. We are seeing strong pricing appreciation and low levels of inventory of finished product and vacant developed lots,” Scott Davis, Regional Director for Metrostudy’s Houston Market, told Builder. “After five and half years of strong job growth, the real challenge for builders in Houston’s new housing market is finding affordable lots in desirable locations.” Read the court decision
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Manhattan Home Prices Jump to a Record as Buyers Compete

April 02, 2014 — Oshrat Carmiel – Bloomberg
Manhattan apartment sales surged in the busiest start to a year since 2007, setting price records as buyers vied for a limited supply of homes for sale and deals were completed at new high-end developments. Sales of co-ops and condominiums in the first quarter jumped 35 percent from a year earlier to 3,307, according to a report today from appraiser Miller Samuel Inc. and brokerage Douglas Elliman Real Estate. The median price climbed 19 percent to $972,428, while the the average price per square foot rose 24 percent to $1,363, the highest in 25 years of record-keeping. Price gains are accelerating in a market where the inventory of homes for sale plummeted to record lows three times in the past year as buyer demand increased. Of the deals completed in the first quarter, 38 percent were at or above the asking price, up from 17 percent a year earlier, according to Jonathan Miller, president of New York-based Miller Samuel. Read the court decision
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Reprinted courtesy of Oshrat Carmiel, Bloomberg
Ms. Carmiel may be contacted at ocarmiel1@bloomberg.net

Indemnity Payment to Insured Satisfies SIR

March 11, 2014 — Tred Eyerly – Insurance Law Hawaii
In response to certified questions from the Eleventh Circuit, the Florida Supreme Court found that a contractual indemnity payment to the insured satisfied the policy's SIR requirement. Intervest Constr. of Jax v. Gen. Fid. Ins. Co., 2014 Fl. LEXIS 568 (Fla. Feb. 6, 2014). ICI Homes, Inc. a general contractor, hired Custom Cutting, Inc. to provide trim work, including installation of attic stairs in a residence ICI was building. Under the contract, Custom Cutting agreed to indemnify ICI for any damages resulting from Custom Cutting's negligence. The owner of the residence fell while using the attic stairs installed by Custom Cutting, injurying herself. The owner sued ICI, who sought indemnification from Custom Cutting. ICI's policy with General Fidelity had a $1 million SIR. The policy also had a transfer of rights clause granting the insurer some subrogation rights. The case was mediated. The parties agreed to a settlement of $1.6 million. Custom Cutting's insurer proposed paying $1 million to ICI to settle the indemnification claim. ICI, in turn, would pay that $1 million to the residence owner. A dispute arose over wither ICI or General Fidelity was responsible for paying the remaining $600,000. 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

Alert: AAA Construction Industry Rules Update

August 26, 2015 — Christopher G. Hill – Construction Law Musings
The American Arbitration Association has made some needed updates to their Construction Industry Arbitration and Mediation Rules, effective July 1, 2015. Among the changes listed at their website are:

A mediation step for all cases with claims of $100,000 or more (subject to the ability of any party to opt out).
Consolidation and joinder time frames and filing requirements to streamline these increasingly involved issues in construction arbitrations.
New preliminary hearing rules to provide more structure and organization to get the arbitration process on the right track from the beginning.
Information exchange measures to give arbitrators a greater degree of control to limit the exchange of information, including electronic documents.

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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Construction in Indian Country – What You Need To Know About Sovereign Immunity

July 22, 2019 — Edward J. Hermes - Snell & Wilmer Under Construction Blog
There are many legal issues to consider when bidding on and building projects in American Indian Country. Which labor and employment laws apply? Are there contracting or hiring preferences that apply? Do the Prompt Pay Act and other state laws apply? Can I bring a lawsuit to enforce the contract and, if so, where would I file suit? This article addresses the final question, which is often the most important question when contracting with a tribal entity. Many of the construction projects in American Indian Country are with tribes or entities wholly owned or by a tribe, such as housing authorities, casinos, hospitals, schools or other economic enterprises. Like the state and federal government, tribes (and their tribally—owned enterprises) enjoy sovereign immunity from any lawsuit, meaning they cannot be sued unless the tribe expressly agrees to waive its sovereign immunity. Sovereign immunity poses a unique issue for contractors that does not typically arise in other projects, but it need not be a deterrent to doing business with tribes. It is usually in the best interest of both the contractor and tribe to negotiate an acceptable waiver of sovereign immunity. Absent such a waiver, the tribe or tribal entity cannot be sued and the resulting forfeiture of remedies can be devastating for the contractor. To waive sovereign immunity, the tribe must make it clear in the contract that it can be sued in a specific jurisdiction. Oklahoma Tax Comm'n v. Citizen Band Potawatomi tribe of Okla., 498 U.S. 505, 509 (1991). It does not matter whether the tribe is operating on or off its lands—if there is no express contractual waiver of sovereign immunity, a contractor will have no recourse in the event of non-payment or other breach of contract. See Kiowa tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). Read the court decision
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Reprinted courtesy of Edward J. Hermes, Snell & Wilmer
Mr. Hermes may be contacted at ehermes@swlaw.com

Like Water For Chocolate: Insurer Prevails Over Chocolatier In Hurricane Sandy Claim

November 08, 2017 — Afua S. Akoto - Saxe Doernberger & Vita, P.C.
Recently, a New Jersey Magistrate ruled that an insurer did not have to provide coverage for a chocolatier’s property damage and business interruption losses due to Hurricane Sandy. Madeline Chocolate Novelties Inc. (Madeline), a family-owned chocolatier in Queens Rockaway Beach, held a one-year all-risk policy with Great Northern Insurance (Great Northern). The policy contained a flood exclusion and a windstorm endorsement. When Hurricane Sandy hit in October 2012, Madeline suffered extensive damage and ceased operations during the ensuing holiday season. The chocolatier claimed $40 million in property damage and $13.5 million in business interruption losses and sought coverage under its policy. Great Northern paid just under $4 million and denied the remainder of the claim, citing the policy’s flood exclusion. Read the court decision
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Reprinted courtesy of Afua S. Akoto, Saxe Doernberger & Vita, P.C.
Ms. Akoto may be contacted at asa@sdvlaw.com

Unpunished Racist Taunts: A Pennsylvania Harassment Case With No True 'Winner'

December 04, 2023 — Richard Korman - Engineering News-Record
The taunts started in the first days of Andre Pryce’s new job, camouflaged as joking. During the nine months of 2019 spent working as a drill rig hand, mostly in the woods in western Pennsylvania, for a contractor that also performs much construction-related drilling, he said coworkers filled his ears with racist insults. Reprinted courtesy of Richard Korman, Engineering News-Record Mr. Korman may be contacted at kormanr@enr.com Read the full story... Read the court decision
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