Fairfield Connecticut Building Expert Directory

Leftover Equipment and Materials When a Contractor Is Abruptly Terminated

November 06, 2023 — Brian Perlberg - ConsensusDocs
Termination for cause is costly and adversarial and has been covered in this article. But can a terminating party use equipment and tools left behind on the worksite (i.e., a crane)? The answer depends on what is in your contract. Under ConsensusDocs, a constructor must give its permission to use any equipment or supplies left at the worksite, such as a crane.[i] Moreover, the owner must indemnify the constructor for using their equipment. This makes sense because even if a constructor were appropriately terminated for cause, using their equipment and materials they no longer possess or control unfairly creates additional liability exposure. At a minimum, the owner should take on the risk of using the equipment and materials since they benefit from such use. Read the court decision
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Reprinted courtesy of Brian Perlberg, ConsensusDocs Coalition
Mr. Perlberg may be contacted at bperlberg@ConsensusDocs.org

The Double-Breasted Dilemma

July 18, 2022 — Lauren E. Rankins & Saloni Shah - ConsensusDocs
What Is A Double-Breasted Operation? A double-breasted operation is when a firm has two entities, and one entity performs work under collective bargaining agreements and the other does not. While this type of operation is not outright prohibited, it is often subject to a variety of challenges and scrutiny. To legally run a double-breasted operation, the two companies must remain separate and distinct. If the companies are not sufficiently separate and distinct from one another, the National Labor Relations Board (“NLRB”) or a court may find that the two companies are operating as a single entity or that the non-union company, or also known as the open shop, is merely an alter ego of the union company and, therefore, bound by the terms of the collective bargaining agreement. In order to determine whether the companies are sufficiently separate and distinct, the two entities must pass either the single employer test or the alter ego test depending on the nature of the double-breasted operation. Typically, the single employer test is used when the two entities run parallel operations, and the alter ego test is used when the open shop replaces the union company. Under the single employer test, the NLRB or courts will generally consider four factors: (1) the interrelation of operations; (2) common management; (3) common control of labor relations; and (4) common ownership. The alter ego test does not require a finding that the companies are a single bargaining unit, but analyzes to what extent the two entities have substantially identical management, business operation and purpose, business equipment, customers, and ownership. While common ownership is a factor considered under both the single employer and alter ego tests, common ownership alone is not dispositive of whether the companies are sufficiently separate and distinct. In other words, the NLRB and courts do not simply look for common ownership to determine whether the double-breasted operation is lawful. It is merely one of many factors to consider. Read the court decision
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Reprinted courtesy of Lauren E. Rankins, Watt, Tieder, Hoffar & Fitzgerald, LLP (ConsensusDocs)
Ms. Rankins may be contacted at lrankins@watttieder.com

Vallagio v. Metropolitan Homes: Colorado Supreme Court Upholds Declarant Consent Provision to Amend Arbitration Out of Declarations

June 15, 2017 — Jean Meyer - Colorado Construction Litigation
On June 5, 2017, the Colorado Supreme Court announced the Vallagio at Inverness Residential Con. Ass’n v. Metro. Homes, Inc., No. 15SC508, 2017 CO 69 (Colo. June 5, 2017) decision. In short, the Colorado Supreme Court upheld the validity of declarant “consent-to-amend” provisions and expressly held that claims under the Colorado Consumer Protection Act are arbitrable. By way of background, the Vallagio at Inverness Residential Condominiums were developed by Metro Inverness, LLC, (“Declarant”) which also served as the declarant for its homeowners association. Metropolitan Homes was Metro Inverness’ manager and the general contractor on the project. Greg Krause and Peter Kudla served as declarant-appointed members of the Association’s board during the period of declarant control. When it set up the Association, the Declarant included within the Association’s declaration a mandatory arbitration provision specifically for construction defect claims. This provision stated that it “shall not ever be amended without the written consent of Declarant and without regard to whether Declarant owns any portion of the Real Estate at the time of the amendment.” Read the court decision
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Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Meyer may be contacted at meyer@hhmrlaw.com

NIBS Consultative Council Issues Moving Forward Report on Healthy Buildings

July 25, 2021 — National Institute of Building Sciences
(WASHINGTON, DC, July 13, 2021) – The National Institute of Building Sciences Consultative Council has issued its 2020 Moving Forward Report, looking closely at the importance of healthy buildings. The report examines how buildings can protect and promote public health, providing recommendations for President Biden and policymakers on three components of healthy buildings: indoor environmental quality, the importance of design in promoting health, and promoting knowledge transfer between building owners and public health officials. “Ensuring that the spaces where we live and work are healthy and safe for continued occupancy is critical to overcoming the pandemic,” said Lakisha A. Woods, CAE, President and CEO of NIBS. “This is a fundamental pillar of public health and community resilience. The concept of healthy buildings goes well beyond continual sanitation of a building’s indoor environment to eliminate pathogens.” About NIBS National Institute of Building Sciences brings together labor and consumer interests, government representatives, regulatory agencies, and members of the building industry to identify and resolve problems and potential problems around the construction of housing and commercial buildings. NIBS is a nonprofit, non-governmental organization. It was established by Congress in 1974. For more information, visit nibs.org or follow @bldgsciences on Twitter and Facebook. Read the court decision
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2017 Construction Outlook: Slow, Mature Growth, but No Decline, Expected

December 21, 2016 — Garret Murai – California Construction Law Blog
As we count down the remaining days of 2016 (thank God) it’s time to think about what the new year will bring (I’m good with pretty much anything at this point). The economists at Dodge Data & Analytics have a few predictions. According to their 2017 Dodge Construction Outlook, they predict that U.S. construction starts will increase modestly in 2017, up 5% to $713 billion, after rather anemic growth in 2016 following several years of steady growth. According to Robert Murray, chief economist for Dodge Data & Analytics, while the first half of 2016 lagged behind construction activity in 2015, that shortfall grew smaller as the year progressed, easing concern that the construction industry might be in the early stage of a cyclical decline. Rather, according to Murray, it appears that the construction industry has now entered a more mature phase of expansion, one characterized by slower rates of growth than during the 2012-2015 period and that construction spending can be expected to see moderate gains through 2017 and beyond[.] Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Limited Number of Insurance-Related Bills Passed by 2014 Hawaii Legislature

June 11, 2014 — Tred R. Eyerly – Insurance Law Hawaii
Very few insurance-related bills survived the 2014 Hawaii Legislative session, with several consumer-friendly bills failing to make it out of committee. Here is a summary of the bills that passed: SB2365: Limits reimbursement of prescription medications in order to prevent drug prices from becoming an unreasonable cost driver of health care in workers' compensation and motor vehicle insurance claims. SB2470: Appropriates general funds to provide for the sustainability of the Hawaii Health Connector, but provides for greater transparency, stakeholder engagement, and legislative involvement in the activities of the Hawaii Health Connector. 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

Housing Gains Not Leading to Hiring

October 25, 2013 — CDJ STAFF
Although construction spending has been rising steadily, the Labor Department noted that most of the 20,000 jobs added by the construction industry in September were for nonresidential construction. In a year that saw an 18% gain in residential construction spending, there was only an increase of 4.8% in employment. The lack of hiring seems to indicate a lingering lack of confidence in the homebuilding market. Employers are having workers do overtime, rather than employ additional people. Read the court decision
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Three's a Trend: Second, Fourth and Ninth Circuits Uphold Broad "Related Claims" Language

February 23, 2016 — Greg Steinberg – White and Williams LLP
The hallmark of a claims-made insurance policy is that the policy only provides coverage for claims that are “first made” during the policy period. As noted by the Texas Supreme Court, “for the insurer, the inherent benefit of a claims-made policy is the insurer's ability to close its books on a policy at its expiration and thus to attain a level of predictability unattainable under standard occurrence policies.”[1] To ensure this “level of predictability,” claims-made insurance policies contain provisions stating that all “Related Claims” will be treated as a single claim deemed first made at the time the earliest of such claims was made. The “Related Claims” provision is an issue that comes up time and again – claims can span years, especially in the context of regulatory investigations, which often culminate in enforcement proceedings and litigation. This inevitably leads to disputes regarding whether later claims can be related back to the earlier claim, an issue that becomes even thornier when different insurers participate on different policy years. Over time, case law on “Related Claims” has been mixed and somewhat inconsistent, with each case tending to hinge on its own unique set of facts, making it difficult to identify a clear standard for determining whether claims are related. However, three recent decisions out of the Second, Fourth and Ninth Circuits show that courts are increasingly deferring to the plain language of the policy and applying these provisions broadly. Read the court decision
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Reprinted courtesy of Greg Steinberg, White and Williams LLP
Mr. Steinberg may be contacted at steinbergg@whiteandwilliams.com

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES