FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Forethought Is Key to Overcoming Construction Calamities

February 10, 2020 — Mitch Cohen - Construction Executive
Without warning, an under-construction structure in the southern United States suffered a catastrophic collapse. The tragedy resulted in the death of several people. As a result, engineering and construction post-collapse forensics experts engaged in an 18-month investigation. Those involved in the design and build project included the general contractor hired by the owner, a prime engineer, a consulting peer-review engineer and a prime structural design firm supported by a sub-consulting structural engineer. Although significant cracking was noticed several weeks before the failure, no one sounded the alarm or deemed the cracking worthy of corrective action. In their findings, forensic experts found the collapse resulted from the combined failure of the general contractor, engineers and even the owner, who all failed to shut down the work once the cracking reached unacceptable levels and/or take the appropriate actions needed to secure the public safety and mitigate the risk. This was even after the general contractor requested that the engineer-of-record and design manager assess the structure’s extreme cracking. Consequently, the choice to not seriously investigate the crack or seek an independent peer review to design a rectification plan contributed directly to the tragedy. This is typically referred to within the industry as a “negligent professional design error.” Reprinted courtesy of Mitch Cohen, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Cohen may be contacted at mitch.cohen@rtspecialty.com

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A Closer Look at an HOA Board Member’s Duty to Homeowners

August 27, 2013 — Derek Lindenschmidt — Higgings, Hopkins, McLain & Roswell, LLC
Whenever a homeowner association (HOA) starts thinking in terms of a construction defect lawsuit against its developer and/or builder, its board members will inevitably be confronted with the purported risk and liability to their homeowners if they do not pursue the alleged defects and deficiencies brought to their attention. Not surprisingly, the board members are on occasion led to believe that pursuing such claims is synonymous with acting in the homeowners’ “best interests.” Further—and unfortunately—board members often feel as though they will breach their obligation to the homeowners if theydon’t agree to proceed with such claims. Nevertheless, how well do we really know what the board members’ duty actually consists of, when it applies, and what potential liability exists for a board member’s breach of same? The answers might surprise you. Read the court decision
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Reprinted courtesy of Derek Lindenschmidt
Derek Lindenschmidt can be contacted at lindenschmidt@hhmrlaw.com

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Traub Lieberman Partner Gregory S. Pennington and Associate Emily A. Velcamp Obtain Summary Judgment in Favor of Residential Property Owners

December 13, 2022 — Gregory S. Pennington & Emily A. Velcamp - Traub Lieberman
Traub Lieberman Partner Gregory S. Pennington and Associate Emily A. Velcamp obtained summary judgment in favor of their clients, owners of a residential property [the “Owners” or “Defendants”] used as a short-term rental in Beach Haven, New Jersey. Plaintiff alleged injuries resulting from a fall into an open water meter pit, located in the public sidewalk abutting the Owners’ property during the time within which the property was rented to plaintiff and his family. According to plaintiff, defendants breached their duty owed to him, relying on a Borough of Beach Haven Ordinance, thereby allowing the water meter pit to be raised in an unsafe manner, which resulted in plaintiff’s fall and subsequent injuries.  After the Court denied defendants’ initial Motion for Summary Judgment on the grounds that issues of material fact existed regarding defendants’ duty and the alleged breach of that duty, a Motion for Reconsideration was filed. Mr. Pennington and Ms. Velcamp argued that their clients, as residential landowners, owed no duty of care to plaintiff for the raised condition of the water meter pit lid, located in the abutting sidewalk, as they did not cause or contribute to the alleged condition. Defendants further argued that even if a duty of care existed, no breach occurred given the lack of notice to defendants, either actual or constructive. Plaintiff attempted to argue that defendants had constructive notice of the lid’s raised condition, relying on his expert report and the fact that defendants had 3.5 months from the date the property was purchased, to the date of the subject accident to discover the lid’s raised condition. Mr. Pennington and Ms. Velcamp successfully argued that despite plaintiff’s allegations and the findings contained in plaintiff’s expert report, authored 2 months after the alleged accident, there was still no credible, material evidence to say how long the water meter pit lid was in that raised condition to allow defendants a reasonable time to discover it, remedy it, or report it to the Borough. Reprinted courtesy of Gregory S. Pennington, Traub Lieberman and Emily A. Velcamp, Traub Lieberman Mr. Pennington may be contacted at gpennington@tlsslaw.com Ms. Velcamp may be contacted at evelcamp@tlsslaw.com Read the court decision
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Colorado Nearly Triples Damages Caps for Cases Filed in 2025, Allows Siblings to File Wrongful Death Claims

July 22, 2024 — Amy Johnson - Lewis Brisbois
Denver, Colo. (June 13, 2024) - On June 3, 2024, Colorado Governor Jared Polis signed HB24-1472 to increase the damages caps for personal injury and wrongful death claims. The law nearly triples the amounts available to plaintiffs, which will continue to increase for inflationary adjustments beginning in 2028 and every two years thereafter. These new damages caps affect not only claims that accrue in 2025 and beyond, but they also change the caps for any civil cases filed on or after January 1, 2025. This law was enacted as a compromise to a ballot measure that would have removed any cap on damages. The new caps are as follows:

• The cap on noneconomic damages for personal injuries will be $1.5 million.
• The cap on noneconomic damages for wrongful death will be $2.125 million.

Plaintiffs are likely to delay filing new actions through the rest of 2024 as long as they are not up against a statute of limitations deadline. Read the court decision
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Reprinted courtesy of Amy Johnson, Lewis Brisbois
Ms. Johnson may be contacted at Amy.Johnson@lewisbrisbois.com

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Substitutions On a Construction Project — A Specification Writer Responds

July 03, 2022 — Melissa Dewey Brumback - Construction Law in North Carolina
In response to the post about Substitute Materials on a construction project, Phil Kabza explains how his company, SpecGuy, handles tracking of all such materials on a project. Phil writes: Excellent and important topic, about which there is much confusion among design professionals and contractors. We try to maintain definitions for:

• Pre-bid requests for prior approval of proposed comparable products where products are named in the specifications
• True pre-bid substitution requests that present an alternate type of product from that specified (ie., not “comparable” but perhaps suitable)
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

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East Coast Evaluates Damage After Fast-Moving 'Bomb Cyclone'

March 06, 2022 — Scott Van Voorhis - Engineering News-Record
Coastal areas in the northeast US are assessing damage from a fast-moving “bomb cyclone” that caused temperatures to plummet, triggered heavy flooding and high winds, and dumped 2 ft of snow in some New England areas. Reprinted courtesy of Scott Van Voorhis, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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PA Supreme Court to Rule on Scope of Judges' Credibility Determinations

April 20, 2016 — Max Kimbrough – White and Williams LLP
In IA Construction v. WCAB (Rhodes), the Commonwealth Court reversed the WCJ’s decision to deny the employer’s Modification Petition on the basis that the employer’s medical expert was not credible. In the underlying case, the claimant was determined to have sustained compensable work injuries to his head, neck and back. The employer subsequently filed a Modification Petition, seeking to modify benefits to Partial Disability based on an Impairment Rating Evaluation (IRE) which found that the claimant had a 34% whole body impairment. The WCJ ultimately denied the employer’s Modification Petition, finding that the IRE physician's categorization of the claimant's injuries and interpretation of the claimant's impairment level from his brain injury was not credible. Read the court decision
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Reprinted courtesy of Max Kimbrough, White and Williams LLP
Mr. Kimbrough may be contacted at kimbroughm@whiteandwilliams.com

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Yet Another Reminder that Tort and Contract Don’t Mix

January 25, 2021 — Christopher G. Hill - Construction Law Musings
I have stated on numerous occasions here at Musings that in Virginia, contract claims and tort claims (read fraud) don’t mix. A recent case from the Federal District Court for the Eastern District of Virginia presents another example of this principle. In Itility LLC v. The Staffing Resource Group, Judge Ellis of the Alexandria Division, considered ITility’s claims of fraud and breach of contract against SRG and one of its officers based upon SRG’s alleged violation of its duties under a teaming agreement. The claim by ITility was that TSRG provided false and misleading resumes and thus damaged ITility. SRG filed a Motion to Dismiss and the Court was therefore required to resolve the following issues: (1) whether plaintiff’s fraud claim is barred by Virginia’s “source of duty” rule; (2) whether plaintiff’s claim for tortious interference with a business expectancy is barred by SRG’s participation in the business expectancy, and (3) whether the teaming agreement between the parties bars plaintiff’s claims for consequential and punitive damages. Reprinted courtesy of The Law Office of Christopher G. Hill Mr. Hill may be contacted at chrisghill@constructionlawva.com Read the full story... Read the court decision
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