FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Understand and Define Key Substantive Contract Provisions

March 23, 2020 — Phillip L. Sampson Jr. & Richard F. Whiteley, Construction Executive
The following contract provisions should be clearly understood before undertaking any construction project commences. Force Majeure Often referred to as an “Act of God,” a force majeure is an event, typically beyond the parties’ control, that prevents performance under a contract. To determine if a contractor need a force majeure clause in its contract, it should ask whether there may be instances where events beyond the contractor’s control could impact its contractual performance? If so, it will want this clause. Courts currently treat force majeure as an issue of contractual interpretation, focusing on the express language in the contract. Consequently, the scope and applicability of a force majeure clause depends on the contract’s terms. Using broad language in a force majeure clause may help protect against unforeseen events. But to the extent possible, parties should describe with particularity the circumstances intended to constitute a force majeure. The law relating to force majeure also fairly consistently provides that parties cannot avoid contractual obligations because performance has become economically burdensome. Courts have refused to apply force majeure clauses where an event only affects profitability. Recent attempts to categorize tariffs on construction materials as a force majeure have failed. Unless a tariff or tax is specifically listed as a force majeure event, it is unlikely to constitute a force majeure because it only affects profitability. Reprinted courtesy of Phillip L. Sampson Jr. & Richard F. Whiteley, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Pandemic Magnifies Financial Risk in Construction: What Executives Can Do to Speed up Customer Payments

August 23, 2021 — Lori J. Drake - Construction Executive
Construction businesses are waiting longer for payment in 2021, according to the newly released 2021 Construction Cash Flow and Payment Report conducted by Levelset. According to respondents, only 10% of construction businesses get paid in full, which is a 75% drop from 2020, and only 9% get paid on time, which is a drop of 60% over last year. The report, based on a survey of 764 construction professionals, illustrates that financial risk in the industry flowed down the payment chain. General contractors were four times more likely to get paid in 30 days, and 50% more likely to get paid in full. However, 20% of subcontractors, suppliers and other second-tier companies were kept waiting more than 60 days to collect payment. Reprinted courtesy of Lori J. Drake, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Formal Opinion No. 2020-203: How A Lawyer Is to Handle Access to Client Confidential Information and Anticipation of Potential Security Issues

December 07, 2020 — Bremer Whyte Brown & O'Meara LLP
Recently, the California Bar Association (“CBA”) published Formal Opinion No. 2020-203[1] concerning a lawyer’s ethical obligations with respect to unauthorized access to electronically stored client information. The onset of the COVID-19 pandemic greatly accelerated the growing trend of storing and maintaining data and information online so that employees and clients can access the data from anywhere in the world at any time. Now, in today’s working world, the reality is nearly all information and data is stored and shared digitally online for ease of access, use, and dissemination. Unfortunately, a major draw-back of this switch to a cyber paradigm is serious exposure to data breaches as a result of hacking, inadvertence, or theft. Formal Opinion No. 2020-203 outlines how a lawyer is to handle access to client confidential information and anticipation of potential security issues. This article will briefly cover the key aspects addressed in Formal Opinion No. 2020-203. What is the duty owed by a lawyer to his or her client regarding the use of technology? At the outset, the CBA reminds lawyers of the ongoing duty of competence (Rule 1.1) and the duty to safeguard clients’ confidences and secrets (Rule 1.6; Cal. Bus. & Prof. Code, § 6068(e)) which impose the requirement that a lawyer must have a basic understanding of the risks posed when using a given technology and (if necessary) obtain help from appropriate experts to assess those risks and take reasonable steps to prevent data breaches. Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

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How New York City Plans to Soak Up the Rain

May 02, 2022 — Linda Poon - Bloomberg
When the remnants of Hurricane Ida pummeled New York City with more than 3 inches of rain in just one hour, the city struggled to soak it up. Instead, streets and subways flooded as storm drains were overwhelmed, basement apartments were inundated, and more than a dozen people died. That September 2021 storm and the ones before it, including a cloudburst downpour during Tropical Storm Elsa in July, have forced New York to take a hard look at becoming a “spongier” city — one that combines nature-based green infrastructure like street-side rain gardens with gray infrastructure like storm drains to divert or absorb water and prevent catastrophic flooding. “New York City is preparing for both chronic storm events — these cloudburst events that we see occurring more and more frequently — as well as extreme storm events like Ida,” says Jennifer Cherrier, a professor of earth and environmental sciences at Brooklyn College. On top of that, the city also faces mounting risks from storm surges, like during Hurricane Sandy in 2012. Read the court decision
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Reprinted courtesy of Linda Poon, Bloomberg

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Development in CBF Green Building Case in Maryland

August 19, 2015 — Christopher G. Hill – Construction Law Musings
Remember that case I discussed a while back relating to the Chesapeake Bay Foundation (CBF) building in Annapolis, Maryland? Remember how it was a lawsuit over parallams and failure of those parallams? Do you even remember what a parallam is? Well, that case was initially dismissed upon the Defendant’s Motion for Summary Judgment because the trial court determined that CBF did not file its lawsuit within the proper time frame after notice of the potential failure of the building materials. Of course, CBF appealed to the Fourth Circuit Court of Appeals under the caption The Chesapeake Bay Foundation, Inc., et. al. v. Weyerhaeuser Company (4th Circuit). After a great review of the facts of the case, the engineering inspections and reports at issue and the trial court’s ruling, the Fourth Circuit vacated the dismissal and remanded the case for further proceedings. The Court of Appeals reasoned that the district court jumped the gun in dismissing the lawsuit so early in the process because:

a genuine dispute exists as to whether knowledge of the water infiltration problem would have put a reasonable person on notice that the Parallams were susceptible to premature deterioration and that their PolyClear 2000 treatment would not preserve them.

In short, the court ruled that the engineering reports relating to moisture issues would have put CBF on notice of the particular issue of deterioration that was at issue in the litigation. Read the court decision
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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

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Allegations Versus “True Facts”: Which Govern the Duty to Defend? Bonus! A Georgia Court Clears Up What the Meaning of “Is” Is

December 11, 2023 — Rachel E. Hudgins & Syed S. Ahmad - Hunton Insurance Recovery Blog
Courts scrutinize a complaint’s factual allegations to decide whether the allegations trigger a duty to defend. [1] If the facts unambiguously exclude coverage, there is no duty to defend. [2] But what if the factual allegations fall within a policy exclusion, but the allegations are untrue or questionable? What if the true facts would mean the exclusion doesn’t apply? In that case, many courts have found that the insurer should base its decision on the policyholder’s version of the “true facts.” [3] An insurer can’t rely on the complaint’s allegations to deny coverage when the facts that the insurer knows or can ascertain show that the claim is covered. [4] A recent case, United Minerals & Properties Inc. v. Phoenix Insurance Co., No. 4:23-cv-00050 (N.D. Ga.), illustrates these policy interpretation principles. Reprinted courtesy of Rachel E. Hudgins, Hunton Andrews Kurth and Syed S. Ahmad, Hunton Andrews Kurth Ms. Hudgins may be contacted at rhudgins@HuntonAK.com Mr. Ahmad may be contacted at sahmad@HuntonAK.com Read the court decision
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U.S. Supreme Court Halts Enforcement of the OSHA Vaccine or Test Mandate

January 17, 2022 — Stephen E. Irving, Kevin J. O’Connor, Aaron C. Schlesinger & Lauren Rayner Davis - Peckar & Abramson
The United States Supreme Court today stayed enforcement of the OSHA emergency temporary standard (ETS) requiring employers with 100 or more employees to require employees either be “fully vaccinated” against COVID-19 or submit to weekly testing. The ruling immediately stops enforcement of the rule which had gone into effect on January 10, 2022. Today’s order raises significant doubt as to whether the ETS requirement will ever take effect in its current form. A 6 to 3 majority of the Supreme Court justices issued the profound statement that the parties opposed to the rule “are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.” The Court went on to state that the OSH Act does not authorize the agency to “set . . . broad public health measures,” such as the found in the current emergency standard. Reprinted courtesy of Stephen E. Irving, Peckar & Abramson, Kevin J. O’Connor, Peckar & Abramson, Aaron C. Schlesinger, Peckar & Abramson and Lauren Rayner Davis, Peckar & Abramson Mr. Irving may be contacted at sirving@pecklaw.com Mr. O'Connor may be contacted at koconnor@pecklaw.com Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com Ms. Davis may be contacted at ldavis@pecklaw.com Read the court decision
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World Cup May Pull Out of Brazil because of Construction Delays

January 28, 2014 — Beverley BevenFlorez-CDJ STAFF
Back in October of last year, CNN reported that a judge suspended construction at one of the stadiums being built for this summer’s World Cup in Brazil. The judge stated that the dangers for construction workers included "being buried, run over, falling from heights and being hit by material, among other serious risks,” according to CNN. Recently, the Los Angeles Times reported that FIFA is threatening to pull out of Brazil because of construction delays: “We cannot organize a match without a stadium,” Jerome Valcke, FIFA’s secretary general, as quoted in the Los Angeles Times. “This has reached a critical point.” The deadline for completion of the 12 World Cup stadiums was January 1st, but various delays—including “fatal construction accidents at stadiums in Sao Paulo, Brasilia, and Manaus” as well as worker walk offs over pay—forced FIFA to “relax” the deadline. Read the full story at CNN... Read the full story at the Los Angeles Times... Read the court decision
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