FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Approaches in the Absence of a Differing Site Conditions Clause

April 10, 2019 — Parker A. Lewton - Smith Currie
A contractor who has encountered unforeseen conditions will typically rely on the contract’s differing site conditions clause as a means to recovery. Most construction contracts address those issues directly. In ConsensusDocs Standard Agreement and General Conditions between Owner and Constructor, the starting point is § 3.16.2. But what if the contract does not contain a differing site conditions clause? Or, what if the contract does contain such a clause, but the contractor failed to provide adequate notice or satisfy other conditions or requirements of the contract? When reliance on a differing site conditions clause is impractical, a contractor still may seek recovery in certain instances under one or more of the following legal theories: misrepresentation; fraud; duty to disclose; breach of implied warranty; and mutual mistake. Misrepresentation Misrepresentation occurs when an owner “misleads a contractor by a negligently untrue representation of fact[.]” John Massman Contracting Co. v. United States, 23 Cl. Ct. 24, 31 (1991) (citing Morrison–Knudsen Co. v. United States, 170 Ct. Cl. 712, 718–19, 345 F.2d 535, 539 (1965)). A contractor may be able to recover extra costs incurred, under a theory of misrepresentation, if it can show that (1) the owner made an erroneous representation, (2) the erroneous representation went to a material fact, (3) the contractor honestly and reasonably relied on that representation, and (4) the contractor’s reliance on the erroneous representation was to the contractor’s detriment. See T. Brown Constructors, Inc. v. Pena, 132 F.3d 724, 728–29 (Fed. Cir. 1997). These four requirements can be satisfied, for example, through the use of deposition testimony detailing the owner’s representations and the contractor’s reliance thereon. See, e.g., C & H Commercial Contractors, Inc. v. United States, 35 Fed. Cl. 246, 256–57 (1996). Read the court decision
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Reprinted courtesy of Parker A. Lewton, Smith Currie
Mr. Parker may be contacted at palewton@smithcurrie.com

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Slavin Doctrine and Defense from Patent Defects

June 13, 2018 — David Adelstein - Florida Construction Legal Updates
The Slavin doctrine is an affirmative defense primarily geared to the personal injury context designed to protect contractors from third-party negligence-type claims when an owner accepts a patent defect. The Slavin doctrine protects contractors from liability for injuries to third parties by presuming that the owner has made a “reasonably careful inspection” of the contractor’s work prior to accepting it as completed; if the owner accepts the contractor’s work as complete and an alleged defect is patent, then the owner “accepts the defects and the negligence that caused them as his own,” and the contractor will no longer be liable for the patent defect. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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No Jail Time for Disbarred Construction Defect Lawyer

May 10, 2013 — CDJ STAFF
The New Mexico Supreme Court decided that a lawyer who defrauded clients will not be spending any time in jail, although they did disbar him in February. Bradley R. Sims brought a cashier’s check for $10,000 to repay his former client. Casa Bandera had hired Sims to sue over construction defects at apartment buildings it owned in Las Cruces, New Mexico. The court had found that Sims did not file the lawsuit but that created documents to convince his clients that he had. Sims initially intended to repay Casa Bandera through monies owed him by Sundland Park, New Mexico. When that did not arrive at the court, Sims borrowed the money. He has yet to comply with a court order to turn over his client lists so that the disciplinary board can determine if he owes money to any other clients. Read the court decision
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#3 CDJ Topic: Underwriters of Interest Subscribing to Policy No. A15274001 v. ProBuilders Specialty Ins. Co., Case No. D066615

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
Michael R. Vellado and Nicole R. Kardassakis of Lewis Brisbois Bisgaard & Smith LLP analyzed the appeals case that “reversed the trial court’s entry of summary judgment in favor of ProBuilders Specialty Insurance Company (“ProBuilders”) and held that the ‘other insurance’ clause in the ProBuilders policy did not relieve it of its duty to participate in the defense of its insured, Pacific Trades Construction & Development, Inc. ('Pacific Trades')." Read the full story... Another discussion of the ProBuilders appeal ruling occurred on the California Construction Law Blog, written by Yas Omidi of Wendel Rosen Black & Dean LLP. Omidi explained the appeal’s court decision: “In reversing the trial court’s decision, the appellate court characterized ProBuilder’s ‘other insurance’ clause as an ‘escape clause’—i.e., a clause that attempts to have coverage, paid for with the insured’s premiums, evaporate in the presence of other insurance.” Furthermore, she noted that “California public policy disfavors such clauses.” Read the full story... Read the court decision
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Downtown Sacramento Building Riddled with Defects

July 23, 2014 — Beverley BevenFlorez-CDJ STAFF
The Board of Equalization tower in Sacramento, California has gone through $60 million in repairs to deal with issues such as bats, floods, leaky windows, mold, and glass panels that would “pop off the building with no warning and shatter on the sidewalk,” according to Insurance News. However, an additional $115 million in repairs are planned to deal with “crumbling core plumbing” and “concrete-and-glass exterior,” among other problems. Now, “a Sacramento attorney filed a $50 million tort claim this month, a first step toward suing the tax-collecting department on behalf of employees who say their bosses downplayed the building's ailments and put workers' health at risk.” "Even though my lawyers told me not to say this, I don't think it's safe," board Chairman Jerome Horton told Insurance News. Read the court decision
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Firm Announces Remediation of Defective Drywall

October 16, 2013 — CDJ STAFF
The residents of Villa Lago at Renaissance Commons will be relieved of their problems with defective Chinese drywall, according to an announcement from their legal counsel, Whitfield Bryson & Mason. Gary E. Mason, a founding member of the firm, announced to homeowners that remediation would begin on November 1. “The project will start with about 30 units on the top floor and will continue floor by floor for the next 12 months.” Residents will be moved out of their units for about three months while all drywall is removed and replaced. Read the court decision
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The Need for Situational Awareness in Construction

January 27, 2020 — Aarni Heiskanen - AEC Business
Recent research backs up what we already know from practice: construction work is suboptimal. What happens on a construction site has not kept up with the demands of an increasingly complex work environment. Situational awareness could give on-site employees the necessary means to finally reap the productivity benefits of digitalization. Under the guidance of Professor Olli Seppänen, research teams at the Finnish Aalto University have delved into everyday conditions at a construction site. With the workers’ permission, they used video cameras, sensors, and surveys to locate the bottlenecks in productivity. The researchers also monitored the movement of products and materials on a construction site. The results are eye-opening. According to Aalto’s data, digitalization has not improved the productivity of construction foremen and workers. A typical worker still spends up to 70% of their time on activities that add no value: searching for information, unnecessary movement, and waiting. Construction materials are moved from place to place six times on the site before being consumed. In addition, especially on large construction sites, machinery often goes missing or is displaced. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Recent Federal Court Decision Favors Class Action Defendants

October 26, 2020 — Amber Karns & Dan Pipitone - Construction Executive
The commercial construction contracting and subcontracting industry in general is unique under the law for industry professionals, as they’re typically limited to wage and hour litigation under provisions of the Fair Labor Standards Act. The majority of FLSA cases seek class action status or collective classification, while other FLSA litigation is initiated by individuals seeking damages. For the former, past and current employees can opt into class action litigation and seek collective damages against a construction company. The looming financial burden of class action or collective litigation against construction companies consume time, money and resources to the extent it’s often advisable for Defendants to negotiate an unfair settlement. Yet, thanks to a recent federal court decision on March 27, 2020, the legal maneuvering behind unreasonable Plaintiff demands may soon be counter-balanced by the class action Defendants’ right to due process review. A recent legal opinion in a recent FLSA case has potentially wide-ranging implications for Defendant employers mired in future class action litigation. Moreover, as the FLSA applies to all employers, this decision potentially applies to all ownership groups representing the commercial construction industry, extending to partners, contractors and subcontractors. Reprinted courtesy of Amber Karns & Dan Pipitone, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Pipitone may be contacted at dpipitone@munsch.com Ms. Karns may be contacted at akarns@munsch.com Read the court decision
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