Fairfield Connecticut Building Expert Directory

Do We Really Want Courts Deciding if Our Construction Contracts are Fair?

March 19, 2015 — Christopher G. Hill – Construction Law Musings
As I posted recently, the Virginia General Assembly has passed, and I can see no reason why the governor won’t sign, a bill that would essentially invalidate preemptive contractual waivers of lien rights as they relate to subcontractors and material suppliers. It does not apply to General Contractors, but it is a step in what many (including those attorneys that represent subcontractors and suppliers) believe is the right direction. Of course, as soon as I posted last week, my friend and colleague Scott Wolfe (@scottwolfejr) commented on that post and then gave his two cents worth at his Zlien blog. The gist of the comments here at Musings and the post over at his blog was essentially that these contractual provisions were inherently unfair and therefore should be abolished because of both a relative disparity in leverage between the Owner or GC and the Subcontractor when it comes to negotiations and the fact that subcontractors often don’t read their contracts or discuss them with a construction attorney prior to signing them. I hear this first of his arguments often when I am reviewing a contract after the fact and a client or potential client acts surprised that a provision will be enforced and the courts of the Commonwealth of Virginia will actually enforce them. As to Scott’s second reason, I have always warned here at Musings that you should read your contracts carefully because they will be the law of your business relationship in the future. The first of his two points is more interesting and in some ways more easily supported. However, where we are speaking of contracts between businesses where both sides are bound by the terms of the contract, it begs the question of whether in seeking to make contracts more “fair” we could add a layer of uncertainty that could cause more problems than it solves. Do we really want courts stepping in after the fact to renegotiate the terms of a deal that was struck months or possibly years before because one judge believes that the deal was too one sided? Do we really need such “Monday morning quarterbacking?” Is one person’s idea of “fair” better than another’s when both parties to the contract had the full ability to read, negotiate and possibly reject the deal long ago? Personally, I think that the answer to these questions is, in all but the most egregious cases or where the legislatures have stepped in adding certainty (whether to the good or bad), “No.” 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

Contractor Disputes Report Amid Amazon Warehouse Collapse Lawsuit

May 02, 2022 — James Leggate - Engineering News-Record
A contractor facing a lawsuit related to the December partial collapse of an Amazon.com Inc. warehouse that was hit by a tornado is pushing back on claims in a fire marshal’s report that highlighted possible “significant structural issues” with the building. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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The Project “Completion” Paradox in California

April 06, 2016 — Garret Murai – California Construction Law Blog
We’ve written before about why the date of “completion” on a California construction project is important, and why, if I may be blunt, determining that date can be as frustrating as a one-legged man in a game of kickass. You see, in California the deadline to record a mechanics lien, serve a stop payment notice, or make a payment bond claim – important construction payment remedies the California State Legislature saw fit to help you get paid – often depends on when a project is “completed.” So, for example, the deadline for direct contractors to record a mechanics lien is 90 days from completion of the project. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Touchdown! – The Construction Industry’s Winning Audible to the COVID Blitz

February 08, 2021 — Bill Shaughnessy, Jones Walker, LLP - ConsensusDocs
COVID-19 has changed the way we live, work, play football, and build. As with all of society (and our football leagues and teams), the construction industry was impacted over the last year through the implementation of new safety protocols in response to COVID-19. While some construction projects were delayed or put on hold, much of the construction industry was fortunate to continue to build throughout the pandemic. Building under COVID-19 safety protocols led contractors to “call an audible” in order to make up for lost time and to save costs. In doing so, many contractors started incorporating or expanding the use of under-utilized tools, resources, capabilities, and technology such as pre-fabrication, and modular construction, while at the same time reexamining planning methods, monitoring critical schedule activities, and ways to better execute construction. In many ways, the effects of COVID-19 safety protocols and measures implemented by contractors in the past year have led to more efficient and cheaper construction projects now and for the future. So, it is not surprising as we turn our calendars to 2021 that contractors can expect these tools, resources, and technologies to be utilized more in the years ahead, even once the pandemic subsides. This article highlights some of the “positive” effects of COVID-19 on projects and highlights several ways contractors attempted to increase efficiency and reduce costs in response to the pandemic. Read the court decision
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Reprinted courtesy of Bill Shaughnessy, Jones Walker, LLP
Mr. Shaughnessy may be contacted at bshaughnessy@joneswalker.com

Toll Brothers Surges on May Gain in Deposits for New Homes

June 01, 2020 — Prashant Gopal - Bloomberg
Toll Brothers Inc. shares surged after the company posted profit that beat estimates and said deposits on new homes were up in recent weeks, a potential sign of optimism for the luxury housing market. The homebuilder, which focuses on higher-end customers, has struggled during the pandemic. It reported orders for the second quarter that missed estimates and said the key metric had plunged starting March 16, when much of the economy shut down. But investors shrugged off those results, focusing instead on a 13% year-over-year gain this month in deposits, which the company called a “leading indicator of current market demand.” Read the court decision
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Reprinted courtesy of Prashant Gopal, Bloomberg

Home Prices in 20 U.S. Cities Increased 4.3% in November

January 28, 2015 — Victoria Stilwell – Bloomberg
(Bloomberg) -- Home prices in 20 U.S. cities rose at a slower pace in the year ended in November, a sign the industry struggled to find momentum even amid low mortgage rates. The S&P/Case-Shiller index of property values increased 4.3 percent from November 2013 after rising 4.5 percent in the year ended in October, the group said Tuesday in New York. The median projection of 28 economists surveyed by Bloomberg called for a 4.3 percent year-over-year advance. Nationally, prices rose 4.7 percent after a 4.6 percent gain in the year ended in October. Read the court decision
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Reprinted courtesy of Victoria Stilwell, Bloomberg
Ms. Stilwell may be contacted at vstilwell1@bloomberg.net

New York Appellate Court Holds Insurers May Suffer Consequences of Delayed Payment of Energy Company Property and Business Interruption Claims

March 16, 2020 — Syed S. Ahmad & Geoffrey B. Fehling - Hunton Andrews Kurth
A New York appellate court recently held that renewable bio-diesel fuel manufacturer BioEnergy Development Group LLC may pursue tens of millions of dollars in damages from its insurers under two all-risk insurance policies, including amounts in excess of the policy limits, where the insurers refused to pay claims in a timely manner. BioEnergy purchased two all-risk property policies from Lloyd’s to provide coverage for its manufacturing plant in Memphis, Tennessee. A fire destroyed the Memphis plant in March 2016, eliminating BioEnergy’s production capacity and sole source of revenue. BioEnergy made claims under the policies and sought to rebuild its plant. The insurers acknowledged coverage and eventually made approximately $8 million in interim payments, but the parties disagreed over the value of the total property damage claim, which BioEnergy contended was in excess of $24 million. The disputed claim was submitted to appraisal, which resulted in the insurers agreeing to pay the full business interruption limit of $15.1 million. The insurers filed a declaratory judgment lawsuit, however, seeking to limit BioEnergy’s recovery to the policy limits of $15.1 million. BioEnergy alleged that the insurers failed to make interim payments in a timely manner after the fire and, as a result, the company suffered increased losses because it could not rebuild without the insurance proceeds. BioEnergy sought actual and consequential damages, plus attorneys’ fees, arising from the delayed payments, including payment of its business interruption losses in excess of the policy limits. Reprinted courtesy of Syed S. Ahmad, Hunton Andrews Kurth and Geoffrey B. Fehling, Hunton Andrews Kurth Mr. Ahmad may be contacted at sahmad@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Read the court decision
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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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