Fairfield Connecticut Building Expert Directory

New York Regulator Issues Cyber Insurance Guidelines

March 29, 2021 — Anne Kelley - Newmeyer Dillion
From the rise of ransomware attacks to the recent SolarWinds-based cyber espionage campaign that struck at the very heart of the U.S. Government, it is apparent that cybersecurity is more critical than ever. COVID-19 and the remote workplace has only served to embolden cyber criminals, and cyber risk now permeates nearly every aspect of modern life from health care data to national security. Cyber insurance plays a critical role in managing cyber risk, and businesses increasingly rely on such coverage to minimize cyber losses. Because of surging cybercrime, it is estimated that the cyber insurance market will increase from $3.15 billion in 2019 to $20 billion by 2025. Having a robust cyber insurance market and ample available coverage is vital to U.S. businesses. In recognition of this reality, the New York Department of Financial Services recently issued the first guidance by a U.S. regulator on cyber insurance—a Cyber Insurance Risk Framework. A key premise of the Framework is to drive improved cybersecurity and cyber risk management, thereby reducing cyberattacks and ensuring that cyber insurance premiums do not spiral out of control. The Framework recognizes the importance of ensuring a healthy cyber insurance market, and applies to all property/casualty insurers that write cyber insurance. Read the court decision
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Reprinted courtesy of Anne Kelley, Newmeyer Dillion
Ms. Kelley may be contacted at anne.kelley@ndlf.com

Subcontractors Have Remedies, Even if “Pay-if-Paid” Provisions are Enforced

February 19, 2019 — John P. Ahlers - Ahlers Cressman & Sleight PLLC
In a recent case in Kentucky[1], a sub-tier subcontractor sued the general contractor and owner for failure to pay for extra work. At the trial, the court held the subcontractor was entitled to recover under the theories of implied contracts and unjust enrichment, even though the subcontract contained a “pay-if-paid” clause. All parties appealed. In particular, the general contractor asserted that the pay-if-paid provision in the subcontract precluded recovery by the subcontractor. The issue was petitioned to the Supreme Court of Kentucky. The question to be resolved by the Supreme Court of Kentucky was whether a pay-if-paid provision was enforceable as between a general contractor and subcontractor, and if so, whether the subcontractor could nevertheless pursue the owner directly for payment notwithstanding a lack of privity between the owner and subcontractor. Read the court decision
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Reprinted courtesy of John P. Ahlers, Ahlers Cressman & Sleight PLLC
Mr. Ahlers may be contacted at john.ahlers@acslawyers.com

Fourth Circuit Clarifies What Qualifies As “Labor” Under The Miller Act

May 08, 2023 — Jeffrey Hummel - The Construction Seyt
Under the Miller Act, 40 U.S.C. §§ 3131 et seq., contractors hired to work on federal construction projects are required to furnish payment bonds in order to ensure payment to certain persons that provide labor for the project. The United States Court of Appeals for the Fourth Circuit recently issued a published decision clarifying the type of work that qualifies as “labor” under the Miller Act. Elliot Dickson v. Fidelity and Deposit Company (issued April 26, 2023). In that case, the U.S. Department of Defense hired Forney Enterprises (Forney) as the prime contractor on a renovation project at the Pentagon. Forney retained Fidelity and Deposit Company of Maryland (Fidelity) to provide the required Miller Act payment bond. Forney then entered into a subcontract with Elliott Dickson (Dickson), a professional engineer, to work as a project manager on the contract. Dickson primarily supervised labor on the site, but also performed other tasks, including logistical and clerical duties, taking various field measurements, cleaning the worksite, moving tools and materials, and sometimes even watering the concrete himself. Dickson’s work required him to be onsite on a daily basis. Read the court decision
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Reprinted courtesy of Jeffrey Hummel, Seyfarth
Mr. Hummel may be contacted at jhummel@seyfarth.com

District Court of Missouri Limits Whining About the Scope of Waiver of Subrogation Clauses in Wine Storage Agreements

May 01, 2019 — Gus Sara - The Subrogation Strategist
In Netherlands Ins. Co. v. Cellar Advisors, LLC, 2019 U.S. Dist. Lexis 10655 (E.D. Mo.), the United States District Court for the Eastern District of Missouri considered the scope of a waiver of subrogation clause in two wine storage agreements. The court held that the subrogation waivers were limited in scope and, potentially, did not apply to the damages alleged in the pleadings. This case establishes that, in Missouri, waivers of subrogation are narrowly construed and cannot be enforced beyond the scope of the specific context in which they appear. In 2005, Krista and Reid Buerger (the Buergers) contracted Marc Lazar (Lazar) to assist with purchasing, transporting and storing their wine. In 2006, the Buergers entered into a contract with Lazar’s company, Domaine StL, for the storage of their wine in St. Louis. In 2012, the Buergers contracted with Lazar’s other company, Domaine NY, for storage of their wine in New Jersey. The 2006 and 2012 contracts included subrogation waivers. Pursuant to the contracts, Lazar and the Domaine companies (collectively, Defendants) would buy wine for the Buergers by either using the Buergers’ credit card or invoicing them after a purchase. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams LLP
Mr. Sara may be contacted at sarag@whiteandwilliams.com

When Is Mandatory Arbitration Not Mandatory?

August 19, 2015 — Christopher G. Hill – Construction Law Musings
I have discussed my views on mandatory mediation in construction contracts at other places here at Musings and also discussed how the contract is king here in Virginia. A recent Charlottesville, Virginia Circuit Court case combined these two concepts to allow a subcontractor to proceed straight to litigation despite various ADR provisions in the contract between it and the general contractor. In ProBuild v. DPR & Continental Casualty, the Court looked at a series of ADR steps that were to be followed in the contract between the parties in order to allow DPR, the general contractor to require arbitration as opposed to litigation. The Court considered the surety’s motion to stay the litigation against it pending arbitration between ProBuild and DPR. In ProBuild, the Court looked at a contractual provision that provided certain steps to be followed in the event of a dispute, starting with a notice of dispute, followed by negotiation, followed by mediation should the disputing party request it, and in the event that mediation was tried and failed, the disputing party or general contractor could require arbitration. The Court determined that ProBuild, the subcontractor, was the disputing party under the contract, had pursued unsuccessful formal negotiations and that neither ProBuild nor DPR requested mediation. The Court then held that because unsuccessful mediation was a prerequisite to required arbitration and because mediation was never pursued, the mandatory arbitration clause did not apply. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

New Zealand Using Plywood Banned Elsewhere

October 30, 2013 — CDJ STAFF
Copper chromium arsenate helps protect wood against insect damage and fungal growth. Unfortunately, its use leads to arsenic exposure. The safety concerns over CCA for both construction workers and the people who later use the buildings have led to the CCA-treated plywood being banned or restricted in most countries, including the United States, Canada, France, the United Kingdom, and Germany. New Zealand is not on the list of countries restricting or banning CCA-treated wood. Dr. Merial Watts, a science coordinator for Pesticide Action Network NZ described the product as an “unacceptable public health risk,” and said that “wrapping homes in CCA-treated plywood is a very bad idea.” One construction official, speaking anonymously, noted that “workers have to handle it with gloves and full body suits,” but those guidelines may not be followed. A foreman on a building site said “I know about the treatment but I don’t take many precautions.” Read the court decision
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Hydrogen—A Key Element in the EU’s Green Planning

December 07, 2020 — Matthew Oresman & Henrietta Worthington - Gravel2Gavel Construction & Real Estate Law Blog
GettyImages-1150744671-300x225Hydrogen is gaining global recognition for its potential as a key player in the energy transition. Investors and businesses are exploring opportunities across multiple sectors, including energy, manufacturing, transport and finance. According to a report by Bloomberg, the current pipeline for global hydrogen projects is worth an estimated $90 billion. The EU is not going to be left behind, with a focal point of its Green Deal being on hydrogen. The EU’s executive branch (the European Commission or EC) has confirmed its commitment to increasing hydrogen projects across the bloc, with a priority on green hydrogen. Its Hydrogen Strategy, released in March, states that hydrogen is “essential to support the EU’s commitment to reach carbon neutrality by 2050 and for the global effort to implement the Paris Agreement while working towards zero pollution.” The EU’s executive branch (the European Commission or EC) has confirmed its commitment to increasing hydrogen projects across the bloc, with a priority on green hydrogen. Its Hydrogen Strategy, released in March, states that hydrogen is “essential to support the EU’s commitment to reach carbon neutrality by 2050 and for the global effort to implement the Paris Agreement while working towards zero pollution.” Reprinted courtesy of Matthew Oresman, Pillsbury and Henrietta Worthington, Pillsbury Mr. Oresman may be contacted at matthew.oresman@pillsburylaw.com Ms. Worthington may be contacted at henrietta.worthington@pillsburylaw.com Read the court decision
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Avoiding 'E-trouble' in Construction Litigation

September 10, 2018 — Judah Lifschitz - Construction Executive
During the 2016 presidential election, the FBI subpoenaed Hillary Clinton's emails after she used a private email server during her time as Secretary of State. Separately, the more recent investigation into Donald Trump’s campaign policy adviser, George Papadopoulos, resulted in scrutiny over both his email and social media. As shown the above examples, there are damaging effects of electronically stored information in politics, but how does it impact the construction industry? If not used carefully and properly, emails will serve as “truth serum” in court. Attorneys can simply read an email to know employees’ thoughts or actions, meaning an impulsive email or social media post will most likely come back to haunt the company. Requests for ESI are inevitable in litigation today and the production of inappropriate emails and other ESI open the door for an opposing attorney to argue that a company fosters a culture of uncouth, unprofessional and unfocused project management. Reprinted courtesy of Judah Lifschitz, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Lifschitz may be contacted at lifschitz@slslaw.com

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