Fairfield Connecticut Building Expert Directory

Constructive Changes – A Primer

October 02, 2018 — Jonathan R. Mayo - Smith Currie
A “constructive change” occurs when an owner action or omission not formally acknowledged by the owner to be a change in the contact’s scope of work forces the contractor to perform additional work. Constructive changes are not formal change orders, but informal changes that could have been ordered under a contract’s changes clause if the change had been recognized by the owner. The constructive change doctrine recognizes that being informally required to do extra work is similar to a formal change order and should be governed by similar principles. Thus, if it is found that a constructive change order did occur, the contractor may be entitled to payment for additional costs incurred, and an extension to the contract performance period. Constructive changes most often arise where there is a dispute regarding contract interpretation, defective plans and specifications, acceleration or suspension of work, interference or failure to cooperate with the contractor, misrepresentation or nondisclosure of superior knowledge or technical information, over inspection, or a delay in providing requested information crucial to the contractor’s ability to continue work. Read the court decision
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Reprinted courtesy of Jonathan R. Mayo, Smith Currie
Mr. Mayo may be contacted at jrmayo@smithcurrie.com

Condo Developers Buy in Washington despite Construction Defect Litigation

October 22, 2014 — Beverley BevenFlorez-CDJ STAFF
Marc Stiles writing for Puget Sound Business Journal stated that “[t]he belief that contractors have been scared off by the legal liabilities that come with [condo] projects doesn't seem to hold water.” He interviewed Suzi Morris, of Lowe Enterprises, who plans on building a new condo tower in Seattle this November. Morris stated that they didn’t have any problems getting construction bids for the 24-story tower. According to the Puget Sound Business Journal, “The development team is trying to head off construction defect claims by planning and documenting with photos their work.” Stiles did admit that an unnamed “source in Seattle who consults on condo projects knows of two large general contracting companies that won't bid on condo projects because of” potential construction defect litigation. Read the court decision
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Update: Where Did That Punch List Term Come From Anyway?

December 21, 2016 — Duane Craig – Construction Informer
I’ve often wondered just where the term “punch list” came from, and I’ve found a few sources that seem to make sense, while others not so much. Enter the Realm of Conjecture and Opinion One person claims it came from the telephone installer process of “punching down” terminals on a block. That seems a bit of a stretch though. A blog writer said it had to do with the term ‘punch’ since it means to “punch something up” as in fix it. Another blog writer thought it had something to do with a long forgotten practice. Apparently subcontractors used to each have their own hole punches that would punch a hole with a shape unique to them. They would use these punches to indicate they had corrected the deficiency that was their responsibility. Read the court decision
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Reprinted courtesy of Duane Craig, Construction Informer
Mr. Craig may be contacted at dtcraig@constructioninformer.com

A Lot of Cheap Housing Is About to Get Very Expensive

October 21, 2015 — Patrick Clark – Bloomberg
Urban Institute fellow Erika Poethig has a poster in her office showing 22 apartment buildings along Chicago's Lake Shore Drive. They were all built with U.S. government dollars to provide affordable housing to thousands of low-income households—and have since been converted to market-rate apartments and condominiums. For Poethig, a former official at the Department of Housing and Urban Development, those apartments are a warning. There are currently about 1.34 million units of affordable housing created by a HUD program known as Section 8 project-based rental assistance, according to a blog post published on Wednesday by Poethig and her Urban Institute colleague Reed Jordan. More than 30 percent of those units are kept affordable by contracts that are set to expire by the end of 2017. Read the court decision
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Reprinted courtesy of Patrick Clark, Bloomberg

Reinsurer Must Reimburse Health Care Organization for Settlement Costs

June 17, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Indiana Supreme Court reversed summary judgment issued to reinsurer Continental Casualty Company (CNA) and determined it must reimburse the insured for settlement costs under the E & O policy. Wellpoint, Inc., et al. v. National Union Fire Ins. Co. of Pittsburgh, PA, et al., 2015 Ind. LEXIS 316 (Ind. April 22, 2015). Anthem, Inc. was a large managed health care organization. Anthem was its own primary and excess insurer for E&O liability. It had numerous excess reinsurers. Beginning in 1998, anthem was confronted by various lawsuits alleging it and other managed care organizations failed to pay claims in a full and timely manner, thereby breaching state and federal statutes. The various lawsuits alleged substantially the same wrongful conduct, namely that after promising to pay doctors in a timely manner for their services, Anthem sought to improperly deny, delay and diminish payments due. The cases were consolidated into a federal multi-district litigation proceeding in the Southern District of Florida. Claims for breach of contract, unjust enrichment, and violations of state prompt pay statutes were dismissed or dropped. Anthem then settled the underlying litigation in July 2005 without admitting and instead denying any wrongdoing or liability. The settlement called for both cash payments and implementation of specific business practices consistent with requested injunctive relief. 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

Client Alert: Release of Liability Agreement Extinguishes Duty of Ordinary Care

February 05, 2015 — R. Bryan Martin and Whitney L. Stefko – Haight Brown & Bonesteel LLP
On January 27, 2015, the California Court of Appeal, Fourth Appellate District, in Eriksson v. Nunnink (Case No. E057158), held a release of liability between Decedent and Defendant was enforceable as a defense to the Decedent's Parents' wrongful death and negligent infliction of emotional distress ("NIED") claims. In Eriksson, the Court concluded that on the basis of the signed release agreement, Defendant did not owe a duty of care to Decedent and thus could only be liable for Decedent's death if caused by the Defendant's gross negligence. The Court held that Plaintiffs failed to establish gross negligence and affirmed the lower court's judgment. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys R. Bryan Martin and Whitney L. Stefko Mr. Martin may be contacted at bmartin@hbblaw.com; Ms. Stefko may be contacted at wstefko@hbblaw.com Read the court decision
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Did the Court of Appeals Just Raise the Bar for California Contractors to Self-Report Construction-Related Judgments?

June 10, 2015 — Garret Murai – California Construction Law Blog
An interesting construction case just came out from the California Court of Appeals for the Second District this past month – Pacific Caisson & Shoring, Inc. v. Bernards Bros., Inc., California Court of Appeals for the Second District, Case No. B248320 (May 19, 2015) – which discusses a number of intertwining issues that can be faced by contractors in California and concludes with a result that I’m not sure I quite agree with. Among the issues discussed by the Court of Appeal were:

The application of the dreaded Business and Professions Code section 7031 which: (1) precludes a contractor from making a claim for payment for work performed; and (2) requires a contractor to disgorge all monies received for work performed, if the contractor was not properly licensed at all times that work was performed;
The impact of an unsatisfied judgment against one contractor on the license of another “related” contractor; and
Whether a stipulated judgment providing for payments over time is an unsatisfied final judgment under the Licensing Law.

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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Construction Defects Survey Results Show that Warranty Laws Should be Strengthened for Homeowners & Condominium Associations

March 29, 2017 — Nicholas D. Cowie - Maryland Condo Construction Defect Law Blog
The Community Associations Institute (“CAI”) recently partnered with its members and industry stakeholders to create a survey about construction deficiencies to learn how they impact homeowners and condominium associations. Click here to view the Construction Defects Report containing the details of the responses to the survey. Click here to see a video presentation summarizing the results of the Construction Defects Survey. This Community Associations Institute (“CAI”) Construction Defects Report demonstrates that many community associations do not discover construction deficiencies until after warranties have expired and/or fail to take the necessary actions to preserve their claims before the statutes of limitations runs. As a result, many homeowners and Condominium associations ended up using association funds to correct builder construction defects and damages caused thereby. Read the court decision
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Reprinted courtesy of Nicholas D. Cowie, Cowie & Mott
Mr. Cowie may be contacted at ndc@cowiemott.com

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