Fairfield Connecticut Building Expert Directory

Courts Take Another Swipe at the Implied Warranty of the Plans and Specifications

December 15, 2016 — John P. Ahlers – Ahlers & Cressman PLLC
Implied warranties are warranties created by law, legislation, or courts. In the construction industry, one of the most prominent implied warranties is that owners who provide plans and specifications to their contractors impliedly warrant the adequacy of their plans and specifications.[i] That implied warranty had its beginning in the 1918 US Supreme Court decision of U.S. v. Spearin[ii] and is, therefore, popularly known as the Spearin Doctrine. Under the Spearin Doctrine, if the contractor completes the work in accordance with the owner’s plans and specifications, but there is a deficiency or failure, the owner, not the contractor, is responsible. When the owner breaches its implied warranty, in most instances, the contractor is entitled to additional compensation for extra work performed, delays experienced, and other additional expense or loss occasioned by the warranty breach. A recent case demonstrates that this implied warranty is not “immunity.” The contractor must still act reasonably and diligently, particularly when the contract provisions so require. In the recent Fifth Circuit case of Dallas/Ft. Worth International Airport v. INet Airport Systems,[iii] the court, despite the implied warranty that existed, did not grant the contractor summary judgment on claims involving admitted plan deficiencies, since factual issues existed regarding the contractor’s cooperation and participation in the solution to the defects. Read the court decision
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Reprinted courtesy of John P. Ahlers, Ahlers & Cressman, PLLC
Mr. Ahlers may be contacted at jahlers@ac-lawyers.com

The New “White Collar” Exemption Regulations

August 19, 2015 — Craig Martin – Construction Contractor Advisor
This summer the Department of Labor’s Wage and Hour Division issued proposed changes to the white-collar overtime regulations under the Fair Labor Standards Act (FLSA). The white collar exemptions include the executive, administrative, professional, outside sales and computer employee exemptions. The focus of the proposed regulations is to increase the salary level required to qualify for the exemption from $23,660 per year to $50,440 per year. The DOL predicts this will cause employers to change the exempt status of nearly 5 million workers who are currently exempt from overtime requirements to non-exempt status – requiring the payment of overtime. Current Regulations Under today’s regulations, the white collar exemption applies to employees who are paid at least $455 per week ($23,660 per year) and who customarily and regularly perform any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee. Proposed Changes The most significant change is the sizeable increase in the minimum salary requirements for the exemptions. The proposed regulations more than double the current minimum salary of $455 per week to $921. This corresponds to the 40th percentile of weekly earnings projected for the first quarter of 2016, based on the Bureau of Labor Statistics. The DOL also proposes annual adjustments to the minimum salary requirements. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Celebrating Excellence: Lisa Bondy Dunn named by Law Week Colorado as the 2024 Barrister’s Best Construction Defects Lawyer for Defendants

October 28, 2024 — David M. McLain – Colorado Construction Litigation
We are thrilled to announce that our very own Lisa Bondy Dunn has been recognized by Law Week Colorado as the 2024 Barrister’s Best Construction Defects Lawyer for Defendants. This prestigious accolade is a testament to Lisa’s dedication, expertise, and unwavering commitment to achieving the best outcomes for our clients. Lisa, a Partner at Higgins, Hopkins, McLain & Roswell (“HHMR”), has long been a leader in construction defect litigation, defending builders, contractors, developers, and design professionals in Colorado’s complex legal landscape. Her deep understanding of the industry and her relentless pursuit of practical, cost-effective solutions have earned her the respect of peers, clients, insurers, mediators, arbitrators, and courts alike. As noted by Law Week Colorado: “For over two decades, Lisa Dunn has represented developers, contractors and subcontractors in construction-related disputes. Dunn has spoken across the country on construction and insurance matters, and she’s worked on several appellate cases during her career. She’s admitted in four states, and has consulted and represented some of the nation’s largest builders.” Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

Government’s Termination of Contractor for Default for Failure-To-Make Progress

July 10, 2023 — David Adelstein - Florida Construction Legal Updates
Whenever you elect to terminate the other party for cause or for default, you need to JUSTIFY the basis of the cause or default. The reason being is that a termination for default or cause is the harshest contractual remedy. This is why the other party will typically either (i) convert the termination for default into one for convenience, or (ii) if there is no termination for convenience provision in the contract, argue the terminating party breached the contract by terminating the contract without rightful justification. The key is if you are going to terminate a party for cause of default, make sure you have memorialized the persuasive reasons for exercising the termination, and can otherwise reasonably support the justification. Do not, and I repeat, do not haphazardly exercise a termination for default and think you do not have to justify the basis for the termination. 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

The American Rescue Plan Act: What Restaurants Need to Act on NOW

March 22, 2021 — Michael Krueger - Newmeyer Dillion
The American Rescue Plan Act (“Act”) was passed by the Senate over the weekend and passed by the House today. President Biden is set to sign the Act into law on Friday, March 12th. The Act has $1.9 Trillion in relief funds with $28.6 Billion set aside for the restaurant industry in the Restaurant Revitalization Fund (“Fund”). The Fund has apportioned funds into two funding groups; $5 Billion for restaurants with annual gross revenue under $500,000 and $23.6 Billion for restaurants over $500,000 in annual gross revenue. Differences from the Paycheck Protection Program (“PPP”) This is a grant program with no loan documents or forgiveness applications. Instead, each restaurant entity can apply for and receive up to $10M in grant funds through the Act. The amount a restaurant receives is based on the sum of the restaurant’s gross revenue in 2019 minus the gross revenue in 2020 minus PPP and EIDL money received. For example, Restaurant A made $7M gross revenue in 2019, made $3M gross revenue in 2020 and received $1M in PPP and EIDL combined. ($7M - $3M -$1M =$3M) The restaurant will receive $3M in grant funds directly from the SBA (as long as funds are available). Read the court decision
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Reprinted courtesy of Michael Krueger, Newmeyer Dillion
Mr. Krueger may be contacted at michael.krueger@ndlf.com

Practical Advice: Indemnification and Additional Insured Issues Revisited

September 08, 2016 — John P. Ahlers – Ahlers & Cressman PLLC Construction Blog
Lawyers love writing about indemnification. There are seventeen blog articles on our website alone that deal with the subject. Before you click out of this email in disgust that we are rehashing a stale topic, this post contains some practical advice for contractors and subcontractors dealing with the perplexing issues of indemnification and additional insured provisions. The concept of indemnity is based on a contractual agreement made between two parties, in which one party agrees to pay for the potential losses or damages caused by the other party. To indemnify someone means to protect that person or entity by promising to pay the cost of possible future damage, loss, or injury. When signing a contract, you should identify the indemnity obligations that could cost your business money. Finding the words “hold harmless” or “indemnify” in a proposed contract is not enough. The terms “hold harmless,” “save harmless,” or “indemnify” are a big part of the indemnification obligation. Although insurance requirements (“additional insured” clauses) accomplish virtually the same thing as very broad, unfair, or unlimited indemnity terms do, they result in an “end run” around the effort to limit the indemnification obligation. Read the court decision
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Reprinted courtesy of John P. Ahlers, Ahlers & Cressman PLLC
Mr. Ahlers may be contacted at jahlers@ac-lawyers.com

Construction Termination Part 3: When the Contractor Is Firing the Owner

August 07, 2023 — Melissa Dewey Brumback - Construction Law in North Carolina
Last week we discussed an Owner terminating a Contractor “for cause.” Today, it’s time for a 180: what is your role as the architect when the Contractor is quitting? First, be aware that there are valid reasons for a contractor to quit within the contract itself. Most of these have to do with either (a) time delays/stand stills or (b) failure of the Owner to make payments as required. The Contractor can suspend or terminate a contract with the Owner for cause, provided a 7 day written notice is given to Owner and Architect. See A201§14.1.3. (This can be an email notice as all AIA notice clauses now allow). Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

Washington Supreme Court Upholds King County Ordinance Requiring Utility Providers to Pay for Access to County’s Right-of-Way and Signals Approval for Other Counties to Follow Suit

March 02, 2020 — Kristina Southwell - Ahlers Cressman & Sleight PLLC
On December 5, 2019, the Washington State Supreme Court released its opinion in King County v. King County Water Districts, et al.,[1] upholding King County’s Ordinance 18403, which requires utility companies who are franchise grantees to pay “franchise compensation” for their use of the County rights-of-way. Generally, utility companies must apply for and obtain from the County a franchise permitting it to do necessary work in the County rights-of-way. [2] Previously, King County only charged an administrative fee associated with issuing such a franchise. But with the new franchise compensation charges, King County estimates that it will raise approximately $10 million dollars per year for its general fund. Ordinance 18403 passed in November 2016 and was the first of its kind in the state. The ordinance created a rule, set forth in RCW 6.27.080, requiring electric, gas, water, and sewer utilities who are granted a franchise by King County to pay “franchise compensation” in exchange for the right to use the County’s rights-of-way. The rule provides that franchise compensation is in the nature of an annual rent payment to the County for using the County roads. King County decides an initial estimate of the charge by considering various factors such as the value of the land used, the size of the area that will be used, and the density of the households served. But utility companies can negotiate with the County over the final amount of franchise compensation. Read the court decision
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Reprinted courtesy of Kristina Southwell, Ahlers Cressman & Sleight PLLC
Ms. Southwell may be contacted at kristina.southwell@acslawyers.com

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