FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

PSA: New COVID Vaccine ETS Issued by OSHA

November 08, 2021 — Christopher G. Hill - Construction Law Musings
Back in September, Joe Biden announced that his administration would mandate vaccinations for employers with over 100 employees. Today, the Occupational Safety and Health Administration (OSHA) issued the emergency temporary standard implementing that mandate. While I have not had a chance to thoroughly review the standard and how it will impact the clients of my firm or those in the Virginia construction industry, OSHA provided a fact sheet outlining the basics that I recommend you review as soon as possible. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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D.R. Horton Profit Beats Estimates as Home Sales Jumped

January 28, 2015 — John Gittelsohn and Prashant Gopal – Bloomberg
(Bloomberg) -- D.R. Horton Inc., the largest U.S. homebuilder by revenue, reported fiscal first-quarter earnings that beat estimates as sales jumped. The shares rose the most since October. Net income was $142.5 million, or 39 cents a share, for the three months ended Dec. 31, compared with $123.2 million, or 36 cents, a year earlier, the Fort Worth, Texas-based company said Monday in a statement. The average of 14 analyst estimates was 35 cents a share, according to data compiled by Bloomberg. Results for the quarter included $6 million in inventory and land option charges, according to the statement. Reprinted courtesy of Bloomberg reporters Prashant Gopal and John Gittelsohn Mr. Gittlesohn may be contacted at johngitt@bloomberg.net; Mr. Gopal may be contacted at pgopal2@bloomberg.net Read the court decision
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Applying Mighty Midgets, NY Court Awards Legal Expenses to Insureds Which Defeated Insurer’s Coverage Claims

February 10, 2020 — Anthony L. Miscioscia & Timothy A. Carroll - White and Williams LLP
Is an insured (or putative insured) entitled to recover its legal expenses if it is successful in coverage litigation? In some states, no. In many other states, yes – based on either a statute or the common law. In New York, an insured may recover such expenses if it was “cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations,” and, while forced into that posture, the insured defeats the insurer’s claim. Mighty Midgets, Inc. v. Centennial Ins. Co., 389 N.E.2d 1080, 1085 (N.Y. 1979). As a corollary to that rule, the insured is not entitled to its expenses “in an affirmative action brought by [the insured] to settle its rights. . . .” Id. at 1085. Earlier this week, the New York federal court in United Specialty Ins. Co. v. Lux Maint. & Ren. Corp., 2019 U.S. Dist. LEXIS 201805 (S.D.N.Y. Nov. 20, 2019) became the latest to apply the Mighty Midgets rule, awarding several insureds their legal expenses after defeating the insurer’s declaratory judgment action. In Lux, the CGL insurer of a façade-renovation contractor sued the contractor (its named insured) and several owners of a hospital (putative additional insureds) at which the façade-renovation work took place, claiming that the insurer did not owe a defense or indemnity to any of those companies in connection with an underlying bodily injury action brought by an employee of the contractor who was injured while performing the work. The insurer and the putative additional insureds filed cross-motions for summary judgment on the coverage issues, with the putative additional insureds also seeking to recover their legal expenses for defending against the insurer’s action. The U.S. District Court for the Southern District of New York concluded that, based on the contractor’s agreement to provide coverage for the hospital owners, and a comparison between the underlying allegations and the policy, the insurer owed the hospital owners coverage as additional insureds to the contractor’s policy; the court also concluded that the insurer owed coverage for the contractor’s contractual defense and indemnity obligations to the hospital owners. After concluding that the insurer’s claim that it did not owe coverage lacked merit, the court turned to the additional insureds’ request for their legal expenses. The court examined the “well settled” rule under New York law “that an insured cannot recover his legal expenditure in a dispute with an insurer over coverage, even if the insurer loses and is obligated to provide coverage,” but also New York’s “limited exception” to that rule, “under which an insured who is ‘cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations, and who prevails on the merits, may recover attorneys’ fees incurred in defending against the insurer’s action.’ ” Lux, 2019 U.S. Dist. LEXIS 201805, at *18 (quoting Mighty Midgets, 389 N.E.2d at 1085). Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Timothy A. Carroll, White and Williams Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Mr. Carroll may be contacted at carrollt@whiteandwilliams.com Read the court decision
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General Contractors Must Plan to Limit Liability for Subcontractor Injury

May 18, 2011 — Douglas Reiser in the Builders Counsel Blog

It takes more than a hard hat, but safety checks, a good policy and a smart contract might save you some problems.If you are a general contractor, you will want to pay close attention to this article. A new Washington appellate decision showcases a general contractor’s liability to subcontractors who are injured on the job, when security barriers fail. But can a general limit this liability? Will its contract help?



In Wrought Corporation, Inc., Appellant V. Mario Interiano (quick note: this opinion is unpublished, but we are here to talk about an issue that was not determined on appeal – WISHA compliance), a subcontractor was injured when a security barrier failed and he fell into an elevator shaft.



A jury awarded a $1.56 million verdict against the general contractor, and the court of appeals affirmed on the basis that the general contractor has a non-delegable duty to ensure compliance with the Washington Industrial Safety and Health Act of 1973, codified under RCW 49.17 (WISHA).

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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com

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Colorado Construction-Defects Reform Law Attempt Expected in 2015

January 14, 2015 — Beverley BevenFlorez-CDJ STAFF
According to the Denver Post, another attempt to change Colorado’s construction defect laws to spur condo development is likely this term. Reform supporters are encouraged by the city of Lakewood’s ordinance, Denver Post reported: “"A patchwork around the state on this issue is not the way to go," Rep. Brian DelGrosso, R-Loveland, said. "Hopefully, the Lakewood measure will spur the conversation this year." Lakewood’s “measure gives builders a ‘right to repair’ faulty work before facing legal action and requires that a majority of home owners approve legal action before it is taken.” However, “Nancy Stockton, president of the homeowners association at the Vallagio at Inverness in Arapahoe County, said following Lakewood's example statewide would only make it that much harder to hold builders accountable for the quality of their work.” Read the court decision
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New York’s Highest Court Weighs in on N.Y. Labor Law

September 23, 2024 — Bill Wilson - Construction Law Zone
N.Y. Labor Law § 241(6) requires owners and contractors to provide reasonable and adequate protection and safety to persons employed at or lawfully frequenting a construction site. If a worker is injured on a construction site and establishes a violation of a specific and applicable Industrial Code regulation, both the owner and contractor will be held vicariously liable for the worker’s injury, without regard to their fault and even in the absence of control or supervision of the worksite. The Court of Appeals of New York recently addressed the broad scope of the Labor Law in the context of slipping hazards. In Bazdaric v. Almah Partners, LLC, 41 N.Y.3d 310 (2024), the plaintiff, an injured painter, slipped and fell on a plastic covering placed over an escalator in an area he was assigned to paint. The plaintiff claimed that the plastic covering was a foreign substance for purposes of Industrial Code 12 NYCRR 23-1.7(d) because it was not part of the escalator. Industrial Code 12 NYCRR 23-1.7(d) states:

Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

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Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

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Crumbling Roadways Add Costs to Economy, White House Says

July 16, 2014 — Roger Runningen – Bloomberg
More than two-thirds of U.S. roadways are in need of repair and the poor condition of the nation’s transportation network results in billions in extra costs, according to a White House report. The report was released today in conjunction with President Barack Obama’s campaign to pressure Congress for a deal to replenish the Highway Trust Fund. The fund, supplied by fuel taxes, is heading toward insolvency as early as next month, jeopardizing jobs and projects during the peak construction season. Crumbling roads and bridges cut into economic growth, by increasing transportation costs and delaying shipments, according to the report. “A well-performing transportation network keeps jobs in America, allows businesses to expand, and lowers prices on household goods to American families,” said a 27-page report by the Council of Economic Advisers and National Economic Council. Read the court decision
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Reprinted courtesy of Roger Runningen, Bloomberg
Mr. Runningen may be contacted at rrunningen@bloomberg.net

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Miller Act CLAIMS: Finding Protections and Preserving Your Rights

November 29, 2021 — Diana Lyn Curtis McGraw - ConsensusDocs
The Miller Act (the “Act”), which requires the prime contractor to furnish a performance bond and a payment bond to the government, protects “all persons supplying labor and materials carrying out the work provided for in the contract.”[1] Despite its broad language, courts have limited the parties who may actually assert a claim under the Act. This article introduces general background of the Act, identifies subcontractors who may qualify for protections under the Act, and suggests ways to preserve the rights as prime contractors. Brief Background of the Miller Act Under the Miller Act, there are two types of bonds the prime contractor furnishes to the government in a federal construction contract of more than $100,000[2] 1. Performance Bond A performance bond protects the United States and guarantees the completion of the project in accordance with the contract’s terms and conditions.[3] This bond must be with a surety that is satisfactory to the officer awarding the contract and in the amount the officer considers adequate for government protection.[4] If a contractor abandons a project or fails to perform, the bond itself will cover the government’s cost of substitute performance. Thus, the performance bond disincentivizes contractors from abandoning projects and provides the government with reassurance that an abandonment will not create delays or additional expenses. Read the court decision
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Reprinted courtesy of Diana Lyn Curtis McGraw, Fox Rothschild LLP
Ms. McGraw may be contacted at dmcgraw@foxrothschild.com

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