FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

MTA Implements Revised Contractors Debarment Regulations

July 06, 2020 — Steven M. Charney, Gregory H. Chertoff & Paul Monte - Peckar & Abramson, P.C.
On June 3, 2020, the Metropolitan Transit Authority (“MTA”) published and implemented revised regulations pertaining to the debarment of contractors. The revised regulations address many of the deep concerns raised by the contracting community. Under relevant administrative procedure, the MTA publication of the revised regulations starts a 45 day notice period before the regulations can be adopted as final. The prior regulations essentially required that debarment occur upon a purely formulaic calculation establishing that a contractor: 1) was more than 10% late, or 2) had submitted invalid claims that exceeded the adjusted contract price by a measure of 10%. The revised regulations represent improvements over the prior regulations. Critically, the revised regulations address the primary concern raised by the contracting community, that being the mandate of purely formulaic debarment. Instead, the revised regulations establish a process that includes greater flexibility and discretion before debarment may ensue. Reprinted courtesy of Peckar & Abramson, P.C. attorneys Steven M. Charney, Gregory H. Chertoff and Paul Monte Mr. Charney may be contacted at scharney@pecklaw.com Mr. Chertoff may be contacted at gchertoff@pecklaw.com Mr. Monte may be contacted at pmonte@pecklaw.com Read the court decision
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Consider Short-Term Lease Workouts For Commercial Tenants

August 17, 2020 — Steven Ostrow, C. Jason Kim & Patrick Haggerty - White and Williams
The COVID-19 pandemic is adversely affecting commercial real estate as it continues to wreak havoc in industries throughout the economy. For many years, the primary declining CRE sector has been brick and mortar retail stores. However, the retail sector is no longer suffering alone, as the COVID-19 outbreak is hurting most other CRE sectors: office, hospitality, multifamily, restaurant, personal services, entertainment and construction. Federal, state and local governments have ordered business shutdowns and social and travel restrictions limiting most social and commercial activities. As a result, commercial tenants throughout the country are going out of business, temporarily closing, curtailing operations, laying off employees and suffering sharply declining revenues. Short-Term Leasing Workouts of Tenant Defaults Thousands of tenants are partially operating or temporarily closed and lack sufficient cash flow or access to additional working capital to pay some or all of their rent. How should a landlord address a distressed tenant's default and request for rent relief, taking into account the landlord's own responsibilities to pay maintenance costs, real estate taxes and debt service on the property? Reprinted courtesy of White and Williams attorneys Steven Ostrow, C. Jason Kim and Patrick Haggerty Mr. Ostrow may be contacted at ostrows@whiteandwilliams.com Mr. Kim may be contacted at kimcj@whiteandwilliams.com Mr. Haggerty may be contacted at haggertyp@whiteandwilliams.com Read the court decision
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Public Policy Prevails: Homebuilders and Homebuyers Cannot Agree to Disclaim Implied Warranty of Habitability in Arizona

November 01, 2022 — Ryan Bennett - The Subrogation Strategist
In Zambrano v. M & RC II LLC, et al., 2022 Ariz. LEXIS 309, the Supreme Court of Arizona held that a homebuilder and homebuyer could not waive or disclaim the implied warranty of workmanship and habitability. While the court would normally enforce a contract between two parties – even if one side made a “bad deal” – they will not do so if the contract’s terms are against public policy. In this case, Tina Zambrano (Zambrano) signed a purchase agreement with the homebuilder to buy a newly built home. The agreement included provisions which expressly disclaimed any implied warranties, including the warranty of habitability and workmanship. After the purchase, Zambrano claimed that there were construction defects within the home, including popped nails in the drywall and issues with the home’s foundation. Zambrano sued the homebuilder for breach of the implied warranty of workmanship and habitability. The homebuilder moved for summary judgment based on the waivers within the contract and the trial court, agreeing that the waivers applied, dismissed the case. Zambrano appealed and the appellate court reversed the trial court’s decision. The appellate court specifically explained that Arizona has a public policy interest in protecting consumers. Read the court decision
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Reprinted courtesy of Ryan Bennett, White and Williams LLP
Mr. Bennett may be contacted at bennettr@whiteandwilliams.com

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What You Need to Know About Notices of Completion, Cessation and Non-Responsibility

June 30, 2016 — Garret Murai – California Construction Law Blog
We talk a lot about contractors on the California Construction Law Blog. Owners? Not so much. So this one’s for you. Why are Notices of Completion, Cessation and Non-Responsibility Important to Owners? California recognizes three types of statutory notices on construction projects available to owners:

• Notices of completion;
• Notices of cessation; and
• Notices of non-responsibility.
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Construction Feb. Jobs Jump by 61,000, Jobless Rate Up from Jan.

March 22, 2018 — Tom Ichniowski – ENR
Construction jobs soared by 61,000 in February, and the industry's unemployment rate improved year over year, but last month's rate did rise from January's level, the federal Bureau of Labor Statistics reported. Read the court decision
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Reprinted courtesy of Tom Ichniowski, ENR
Mr. Ichniowski may be contacted at ichniowskit@enr.com

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California Trial Court Clarifies Application of SB800 Roofing Standards and Expert’s Opinions

February 18, 2020 — Scott Calkins & Anthony Gaeta - Collinsworth, Specht, Calkins & Giampaoli; Mark Chapman - Bert L. Howe & Associates, Inc.
Collinsworth, Specht, Calkins & Giampaoli partners Scott Calkins and Anthony Gaeta obtained a trial victory when the jury returned a 12-0 defense verdict against one plaintiff homeowner, and awarded the other homeowner less than $2,000, an amount well below the defendant’s pre-trial CCP 998 Offers to Compromise. One of the main issues in the case was the application of SB800 roofing standards. Plaintiffs’ roofing expert testified in deposition no water entered the structure or passed through a moisture barrier [Civ. Code §896(a)(4)], and no materials had fallen off the roof [§896(g)(11)]. In an attempt to circumvent the applicable performance standards, Plaintiffs argued Civ. Code §869(g)(3)(A), also known as the ‘useful life’ exception, applied because the various components of the roof (nailing pattern, tiles, vents, etc.) were installed in such a manner so as to reduce the useful life of the roof. Following pre-trial motions and objections made during Plaintiffs’ direct examination, the Court ruled Section 896(g)(3)(A) did not apply to a conventional roof, as it is not a “manufactured product” as defined in §896(g)(3)(C). Plaintiffs’ roofing claims were summarily dismissed and Plaintiffs’ expert was prevented from testifying. In contrast, the defense expert, Mark Chapman, was allowed to testify regarding his expert opinions as to the appropriate SB800 standard relative to each alleged defect and whether the standards were violated. The SB800 performance standards were included on the jury verdict form, and the jury found Mr. Chapman’s testimony compelling, which was a substantial factor in awarding only minor damages to one Plaintiff. For more information, contact Scott Calkins (scalkins@cslawoffices.com), Anthony Gaeta (ageta@cslawoffices.com) or Mark Chapman (mchapman@berthowe.com). Read the court decision
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California Supreme Court Declines Request to Expand Exceptions to Privette Doctrine for Known Hazards

January 17, 2022 — Garret Murai - California Construction Law Blog
First things first. Happy New Year! Hope you had a good one. To start things off in the new year we’ve got an employment-related case for you – Gonzalez v. Mathis, 12 Cal.5th 29 (2021) – a California Supreme Court case involving the Privette Doctrine. For those not familiar with the Privette Doctrine, the Privette Doctrine is named after the case Privette v. Superior Court, 5 Cal.4th 689 (1993), which held that project owners and higher-tiered contractors are not liable for workplace injuries sustained by employees of lower-tiered contractors. Since then, courts have carved out a few exceptions to the Privette Doctrine including the “retained control exception” (also known as the Hooker exception – that’s the name of the case not the occupation of the injured worker) whereby a “hirer,” that is, the higher-tiered party who hired the lower-tiered party whose employee is injured, can be held liable if the hirer: (1) retains control over any part of the lower-tiered party’s work; and (2) negligently exercises that control in a manner that affirmatively contributes to the worker’s injury. Another exception is the “concealed hazard exception” (also known as the Kinsman exception) whereby a hirer can be held liable if: (1) the hirer knew, or should have known, of a concealed hazard on the property that the lower-tiered contractor did not know of and could not have reasonably discovered; and (2) the hirer railed to warn the lower-tiered contractor of that hazard. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Garlock Five Years Later: Recent Decisions Illustrate Ongoing Obstacles to Asbestos Trust Transparency

September 03, 2019 — Amy E. Vulpio - Complex Insurance Coverage Reporter
In In re Garlock Sealing Technologies, LLC, 504 B.R. 71 (Bankr. W.D.N.C. 2014), the court confirmed what many asbestos defendants and their insurers long suspected: that “the withholding of exposure evidence by plaintiffs and their lawyers was significant and had the effect of unfairly inflating the recoveries against Garlock” and other defendants. This “startling pattern of misrepresentation” included plaintiffs’ attorneys who, out of “perverted ethical duty,” counseled their clients to file claims against multiple trusts without valid factual grounds for so doing. Such “double dipping” and other abuse not only harms asbestos defendants and insurers, but also dilutes recoveries for legitimate claims. Now – five years after Garlock – the Department of Justice (DOJ) has launched a coordinated initiative to fight asbestos trust fraud and mismanagement. However, a series of recent bankruptcy court rulings suggests that this initiative stumbled out of the gate by focusing on the wrong issues. Asbestos defendants and their insurers can learn from the DOJ’s missteps. In November 2017, invoking Garlock, 20 state attorneys general wrote to then-Attorney General Jeff Sessions asking him to devote DOJ resources to fighting asbestos trust abuse. A September 13, 2018 DOJ press release announced an initiative to increase the transparency and accountability of asbestos trusts. Through its United States Trustee Program (UST), the DOJ objected to the debtors’ proposed legal representative for future claims (FCR) in several Chapter 11 cases involving asbestos liabilities: Lawrence Fitzpatrick in Duro Dyne and James L. Patton, Jr. in Maremont, Fairbanks and Imerys Talc. Read the court decision
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Reprinted courtesy of Amy E. Vulpio, White and Williams LLP
Ms. Vulpio may be contacted at vulpioa@whiteandwilliams.com

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