Fairfield Connecticut Building Expert Directory

Four Key Steps for a Successful Construction Audit Process

May 03, 2021 — Ronald L. Williams, Fox Rothschild LLP - ConsensusDocs
The implications of the audit provisions contained in construction agreements between owners and contractors owners extend far beyond post-completion bean counting, and can affect multiple aspects of a project, from project administration to relationships with key subcontractors. It is critically important that contractors give audits the attention they deserve by taking the following four steps. First, invest the time to negotiate the audit provisions that ultimately appear in contracts with the owner. Second, ensure that the project team and the owner’s project auditors engage in timely communication during construction. Third, make certain that post-completion audit administration is prompt and complete. And finally, carefully draft adequate “flow-down” provisions with subcontractors and vendors so that they understand and comply with their contractual obligations, as well as the expectations of the contractor and owner. All four aspects are critical, and if not addressed effectively can undermine the profitability of the contract, and contractors’ business relationships with both upstream and downstream parties. Negotiations At the outset of contract negotiations, a contractor must completely understand the owner’s audit process expectations. An owner’s understanding of the audit process and its potential pitfalls depends on their own experience, as well as the knowledge of their personnel, including internal audit members and external auditors. Negotiations, which like the audit itself need not be adversarial, can be educational for both the owner and any representatives involved. Read the court decision
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Reprinted courtesy of Ronald L. Williams, Fox Rothschild LLP
Mr. Williams may be contacted at rwilliams@foxrothschild.com

Excess Must Defend After Primary Improperly Refuses to Do So

August 13, 2014 — Tred R. Eyerly - Insurance Law Hawaii
The excess insurer had a duty to defend after the primary carrier improperly refused its defense obligations. IMG Worldwide, Inc. v. Westchester Fire Ins. Co., 2014 U.S. App. LEXIS 13703 (6th Cir. July 15, 2014). IMG was sued for over $300,000,000 for alleged fraud, conversion, civil theft and violations of the Florida Deceptive and Unfair Trade Practice Act (FDUTPA). The lawsuit stemmed from a real estate development project. The plaintiffs had invested in the project and alleged that the developer had sold them undeveloped properties with the promise they would be developed. IMG was a consultant on the project and also licensed to the developer the use of the IMG name and logo in marketing materials. IMG had no contractual obligation to actually develop the property or finance the project. IMG sought coverage from its primary carrier, Great Divide, and from its excess carrier, Westchester. Both denied coverage and refused to defend. 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

Coronavirus, Force Majeure, and Delay and Time-Impact Claims

March 30, 2020 — Garret Murai - California Construction Law Blog
It’s scary, uncertain times as the world grasps with how to deal with the coronavirus pandemic that has now spread to every continent on the globe with the exception of Antarctica. Although this is a global crisis, it has, and for the immediately future will continue to have, a direct impact on us individually as well our industry. While the impact of the coronavirus on the construction industry is uncertain, what is certain, is that it will have an impact, whether on the construction labor market, on construction supply chains, on the ability of contractors to deliver projects on time and within budget, and on decisions by owners whether to move forward with projects altogether. According to Ken Simonson, chief economist with the Associated General Contractors of America, during an interview at the ConExpo conference this past week in Las Vegas, while the coronavirus crises “is a story evolving by the hour . . . the impacts on construction are going to happen, but it’s hard to say how extensive, how long they’ll last, [and] how soon they’ll show up.” From a legal perspective, the coronavirus, and really any natural disaster, from the “Campfire Fire” in Northern California in 2018 to the “Big One” which can happen anytime, has the potential to adversely impact a construction project or shut it down completely. This in turn raises two different, but interrelated legal concepts: (1) force majeure; and (2) delay and time-impact claims. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Enhanced Geothermal Energy Could Be the Next Zero-Carbon Hero

June 10, 2024 — Sidney L. Fowler, Robert A. James & Clarence H. Tolliver - Gravel2Gavel Construction & Real Estate Law Blog
Hydrogen, solar, wind—and even microwave beams from outer space—are a few of the alternative energies being explored as the world strives to cut the cord on carbon emissions. Recently, advancements in geothermal energy technologies appear poised to significantly expand geothermal’s reach. These new methods, varyingly referred to as enhanced, engineered or advanced geothermal systems (collectively referred to here as EGS), have recently made strides in scalability and grabbed the attention of changemakers. If successful, EGS may play a major role in the clean energy transition. The technique creates no emissions and is virtually limitless (it pulls from heat generated by the Earth’s core), and can provide constant baseload power, making it appealing to green-minded investors. This article calls attention to the progress and variety of EGS projects and proposals that Pillsbury sees as part of the ongoing energy transition. People have long been drawn to geothermal energy, with Paleo-Americans settling at hot springs some 10,000 years ago. In 1892, Boise, Idaho, became the first town to establish a district heating system that piped naturally occurring hot water from underground and into homes. It would take another 70 years for other cities to replicate the feat, but now 17 U.S. districts use such systems, along with dozens more worldwide. Reprinted courtesy of Sidney L. Fowler, Pillsbury, Robert A. James, Pillsbury and Clarence H. Tolliver, Pillsbury Mr. Fowler may be contacted at sidney.fowler@pillsburylaw.com Mr. James may be contacted at rob.james@pillsburylaw.com Mr. Tolliver may be contacted at clarence.tolliver@pillsburylaw.com Read the court decision
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Court Agrees to Stay Coverage Matter While Underlying State Action is Pending

October 29, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The federal district court granted the insured's motion to stay the coverage action while the construction defect case was pending in state court. Auto Owners Ins. Co. v. Essex Homes Southeast, Inc., 2014 U.S. Dist. LEXIS 133120 (D. S.C., Sept. 23, 2014). The homeowners sued Essex Homes in state court for construction defects in a home built and sold to them by Essex Homes. The suit sought damages for property damage based on negligence, breach of implied warranty, and breach of express warranties arising out of the alleged construction defects. The complaint alleged that a water leak in the house caused water damage and resulted in mold growth that was not discovered for several years. 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

New Case Law Alert: Licensed General Contractors Cannot Sue Owners to Recover Funds for Work Performed by An Unlicensed Subcontractor

May 30, 2022 — Michele A. Ellison & Samantha R. Riggen - Gibbs Giden
The opinion in Kim v. TWA Construction, Inc. (2022 Cal. App. LEXIS 412) issued by the Court of Appeal of California Sixth Appellate District, on May 13, 2022, makes it clear that a properly licensed general contractor cannot bring an action for compensation from an owner for work performed by an unlicensed subcontractor. California licensing law has long made explicit that an unlicensed contractor cannot bring or maintain any action to collect or recover compensation for work that contractor performed unless they were duly licensed at all times during the performance of that work. This new ruling extends the scope of this restriction to licensed contractors who hired unlicensed subcontractors. The Underlying Dispute The case involved a dispute between property owners and their former general contractor and its principal (collectively “TWA”). The property owners hired TWA to construct a home, and during the early stages of the project, TWA hired an unlicensed subcontractor to perform tree trimming services and to remove a large eucalyptus tree. The subcontractor partially removed the eucalyptus tree, but was stopped by a neighbor, and it was discovered that the tree was partly located on the neighbor’s property. The neighbor brought suit against the property owners, and eventually TWA, for the damage. The property owners subsequently filed a cross-complaint against TWA, and TWA in turn filed a cross-complaint against the property owners. Reprinted courtesy of Michele A. Ellison, Gibbs Giden and Samantha R. Riggen, Gibbs Giden Ms. Ellison may be contacted at mellison@gibbsgiden.com Ms. Riggen may be contacted at sriggen@gibbsgiden.com Read the court decision
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Potential Pitfalls Under the Contract Disputes Act for Federal Government Contractors

February 28, 2018 — Sarah K. Carpenter – Smith Currie Publications
The Contract Disputes Act (CDA) governs monetary and non-monetary disputes arising out of contracts or implied-in-fact contracts between the federal government and contractors. Because the CDA is an exclusive remedy, it is important that contractors be wary of the many pitfalls that may be encountered by a contractor seeking to assert a claim against the government under the CDA. The pitfalls faced by a contractor under the CDA can arise before a contractor becomes aware of a potential claim. Pursuant to the Federal Acquisition Regulation (FAR) § 43.204(c), a contracting officer should include in any supplemental agreement, including any change order, a Contractor’s Statement of Release which requires a contractor to execute a broad release of the government from any and all liability under the contract. As a result of this FAR provision, in executing a routine change order, a contractor may inadvertently release its right to pursue a potential claim under the CDA. A contractor should always review any release language prior to executing a supplemental agreement or change order with the government. Read the court decision
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Reprinted courtesy of Sarah K. Carpenter, Smith Currie
Ms. Carpenter may be contacted at skcarpenter@smithcurrie.com

Insurer's Quote on Coverage for Theft by Hacker Creates Issue of Fact

December 16, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The appellate court found that the insurer's quote created an issue of fact on whether loss caused by a computer hacker would be covered. Metal Pro Roofing, LLC v. Cincinnati Ins. Co., 2019 Ind. App. LEXIS 355 (Ind. Ct. App. Aug. 9, 2019). The insureds, Metal Pro Roofing, LLC and Cornett Restoration, LLC ("LLC's") discovered that their bank accounts had been hacked and over $78,000 stolen. They submitted claims to their insurer, Cincinnati. Coverage was denied, and the LLCs filed suit. Cross-motions for summary judgment were filed, and the court granted summary judgment to Cincinnati. The "Forgery or Alternation" coverage applied to losses resulting directly from the "'forgery' or alteration of checks, drafts, promissory notes, or similar written promises, order or directions to pay a sum of money." "Forgery" was defined as "the signing of the name of another person or organization with the intent to deceive." The LLCs did not cite any evidence that the hacker "signed" anything, let alone that they signed "the name of another person or organization." Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES