FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Contractor’s Claim for Interest on Subcontractor’s Defective Work Claim Gains Mixed Results

April 27, 2020 — John J. Gazzola, Associate, Pepper Hamilton LLP - ConsensusDocs
This case concerns calculation of a damages award to a general contractor, Skanska USA Building, Inc., on its claim for breach of contract against its masonry subcontractor, J.D. Long Masonry, Inc., arising from Long’s faulty construction of a masonry façade at a medical research facility in Baltimore. When the façade collapsed and Long failed to repair it, Skanska hired a replacement subcontractor, C.A. Lindman, to remediate Long’s defective work and filed suit against Long to recover the resulting damages. After the court granted Skanska’s motion for summary judgment as to liability, Skanska moved for summary judgment on the issue of damages, relying on the indemnification provision of the subcontract to seek compensatory damages, pre- and post-judgment interest, and litigation fees. In the subcontract, Long agreed to indemnify and hold Skanska harmless from all claims, losses, costs and expenses, including attorneys’ fees, arising before or after completion of Long’s work, caused by, arising out of, resulting from, or occurring in connection with Long’s performance of the work or breach of the subcontract. The court first applied the terms of this provision to award Skanska compensatory damages, holding that Skanska was, as a matter of law, entitled to recover the amount of the Lindman subcontract and general conditions incurred to supervise remediation of Long’s work. The court, however, denied Skanska’s claim for pre-judgment interest on the entirety of these damages. Skanska asserted that it was entitled to pre-judgment interest on the full award, calculated from the date on which it first paid Lindman. The court disagreed, explaining that, under Maryland law, a claimant is entitled to an award of pre-judgment interest as of right only when the amount due is certain, definite and liquidated by a specific date prior to judgment. The court reasoned that, because much of the Lindman subcontract value was composed of later-executed change orders, an award of pre-judgment interest could not be uniformly calculated back to the date of Skanska’s first payment to Lindman. And moreover, because Skanska continued to withhold sums due to Lindman pending resolution of certain issues, awarding Skanska pre-judgment interest on amounts it had not yet paid would result in a “windfall” to Skanska because there was no “use of income” loss to be compensated. Read the court decision
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Reprinted courtesy of John J. Gazzola, Pepper Hamilton LLP
Mr. Gazzola may be contacted at gazzolaj@pepperlaw.com

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Court of Appeals Discusses Implied Duty of Good Faith and Fair Dealing in Public Works Contracting

August 17, 2017 — Lindsay K. Taft - Ahlers & Cressman PLLC
The implied duty of good faith and fair dealing is implied in every contract, including construction contracts. Generally speaking, this implied duty requires parties cooperate with one another so that they each obtain the full benefit of their contracted bargain. Recently, the Court of Appeals (Division II) in Nova Contracting, Inc. v. City of Olympia discussed this duty’s application to a public works contract. Read the court decision
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Reprinted courtesy of Lindsay K. Taft, Ahlers & Cressman PLLC
Ms. Taft may be contacted at ltaft@ac-lawyers.com

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Labor Under the Miller Act And Estoppel of Statute of Limitations

May 08, 2023 — David Adelstein - Florida Construction Legal Updates
If you want a case that goes into history of the federal Miller Act, check out the Fourth Circuit Court of Appeal’s opinion in U.S. ex rel. Dickson v. Fidelity and Deposit Company of Maryland, 2023 WL 3083440 (4th Cir. 2023). While I am not going to delve into this history, it’s a worthwhile read. It is also a worthwhile read for two other points. First, it discusses what constitutes “labor” under the Miller Act. Second, it discusses doctrine of estoppel to prevent a surety from raising the statute of limitations to bar a Miller Act payment bond claim, which is a doctrine you do NOT want to rely on, as this case reinforces. Both of these points applicable to Miller Act claims are discussed below. This case dealt with a prime contractor renovating staircases that was terminated by the federal government. The prime contractor hired a professional engineer as its subcontractor to serve as its project manager and supervise labor on the project. The engineer/subcontractor also had “logistical and clerical duties, taking various field measurements, cleaning the worksite, moving tools and materials, and sometimes even watering the concrete himself.” Dickson, supra, at *1. Read the court decision
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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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Louisiana Couple Claims Hurricane Revealed Construction Defects

January 22, 2013 — CDJ STAFF
A Louisiana couple has sued the company that raised their home, claiming that faults with the work were revealed after Hurricane Isaac hit the home. Crescent City Construction raised the Marcev’s home in 2006. They were satisfied with the work until the 2012 hurricane. The Marcevs claim in their suit that the work is covered by a ten-year warranty. They are suing for a full refund of their payments to Crescent City Construction, as well as architectural fees, damages, interest, and attorney costs. Their claim is that as a result of the work, their home now has structural defects and fails to meet building codes. Read the court decision
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Supreme Court Opens Door for Challenges to Older Federal Regulations

August 05, 2024 — Jane C. Luxton - Lewis Brisbois
Washington, D.C. (July 1, 2024) – On July 1, 2024, the U.S. Supreme Court issued another end-of-term major decision limiting the scope of federal agency actions in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. Adding to the tectonic shift in the regulatory landscape created by the Court’s June 27 and 28 rulings constraining the role of administrative law judges and overturning longstanding “Chevron deference” by courts to federal agency expertise, the decision in Corner Post establishes a newly expanded time frame for affected entities to challenge final agency action. Instead of confirming that final agency action is subject to a default six-year statute of limitations, the Court held that under the Administrative Procedure Act (APA), the time limit for appeal begins to run when a plaintiff is injured by the agency's action, not when the action becomes final. This decision has important implications for businesses and others affected by federal regulations. The case arose when Corner Post, a truck stop and convenience store in North Dakota that opened in 2018, challenged a 2011 Federal Reserve Board regulation (Regulation II) that set maximum interchange fees for debit card transactions. Corner Post filed suit in 2021, arguing that Regulation II allowed higher fees than permitted by statute. The lower courts dismissed the suit as time-barred under 28 U.S.C. § 2401(a), which effectively requires APA claims to be filed "within six years after the right of action first accrues." Read the court decision
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Reprinted courtesy of Jane C. Luxton, Lewis Brisbois
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com

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Construction Law Advisory: Mechanical Contractor Scores Victory in Prevailing Wage Dispute

September 03, 2014 — Steven M. Cvitanovic & Jessica M. Lassere Ryland - Haight Brown & Bonesteel LLP
On August 27, 2014, the First District Court of Appeal weighed in on whether prevailing wages are required for public contracts in situations where work is performed in furtherance of the project but at a permanent offsite manufacturing facility that is not exclusively dedicated to the project. In Sheet Metal Workers' International Association, Local 401 v. John C. Duncan and Russ Will Mechanical, the project at issue was for a community college district where Russ Will was the HVAC subcontractor. The contract documents required contractors to pay prevailing wages but they did not limit where or how Russ Will would fabricate sheet metal required for the job. Russ Will used its existing fabrication facility to form the sheet metal. An employee of Russ Will filed a complaint with the DIR alleging he should have been paid prevailing wages for work related to the project. The worker fabricated sheet metal for the project but at Russ Will’s Hayward facility, not at the site. The DIR issued a coverage determination in which it concluded that Russ Will was required to pay prevailing wages for the offsite fabrication work associated with the project. The DIR's determination turned on whether Russ Will was exempt from the prevailing wage law as a material supplier. To qualify for the material supplier exemption, the employer must sell supplies to the general public and its fabrication or manufacturing facility must not be established for the particular public works contract or be located at the site of the public work. Following the DIR determination, Rush Will filed an administrative appeal. The department reversed its initial coverage determination, concluding that the offsite fabrication performed by Russ Will was not subject to the prevailing wage law. Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and Jessica M. Lassere Ryland, Haight Brown & Bonesteel LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com; Ms. Ryland may be contacted at jlassere@hbblaw.com Read the court decision
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Truck Hits Warning Beam That Falls, Kills Motorist at Las Vegas Bridge Project

July 11, 2022 — Doug Puppel - Engineering News-Record
A truck carrying an oversized load in northwest Las Vegas on Friday struck a steel beam near a bridge construction site, sending the beam crashing onto a following vehicle and killing its driver, according to the Nevada Dept. of Transportation. Reprinted courtesy of Doug Puppel, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Another Reminder that Contracts are Powerful in Virginia

February 08, 2021 — Christopher G. Hill - Construction Law Musings
Regular readers of this construction law blog are likely tired of my refrain that the contract is king here in Virginia. With few exceptions, some of which have been passed in the last few years, the contract can and does essentially set the “law” for the transaction. A recent opinion from the 4th Circuit Court of Appeals confirms this principle. In Bracey v. Lancaster Foods, LLC, the Court looked at the question as to whether parties can contractually limit the statute of limitations in which a plaintiff or arbitration claimant can file its claim for relief. In Bracey, Michael Bracey, a truck driver, sued his former employer, Lancaster Foods, asserting various employment law claims. Lancaster moved to dismiss and compel arbitration based on the terms of an alternative dispute resolution agreement Bracey signed when he was hired, under which he consented to arbitration of any employment-related claim and waived all rights he may otherwise have had to a trial. Bracey challenged the arbitration clause, one that also included a 1-year limitation on the time in which Bracey was allowed to file any claim, as unconscionable. A federal judge in Maryland agreed and granted the motion to dismiss. 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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