FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Contractor’s Burden When It Comes to Delay

October 26, 2020 — David Adelstein - Florida Construction Legal Updates
When a contractor is challenging the assessment of liquidated damages, or arguing that it is entitled to extended general conditions, the contractor bears a burden of proof to establish there were excusable delays that impacted the critical path and, in certain scenarios, the delays were not concurrent with contractor-caused delay:

When delays are excusable, a contractor is entitled to a time extension, such that the government may not assess liquidated damages for those delays. The government bears the initial burden of proving that the contractor failed to meet the contract completion date, and that the period of time for which the government assessed liquidated damages was correct. If the government makes such a showing, the burden shifts to the contractor to show that its failure to timely complete the work was excusable. To show an excusable delay, a contractor must show that the delay resulted from “unforeseeable causes beyond the control and without the fault or negligence of the Contractor.” “In addition, the unforeseeable cause must delay the overall contract completion; i.e., it must affect the critical path of performance.” Further, the contractor must show that there was no concurrent delay.

Ken Laster Co., ASBCA No. 61292, 2020 WL 5270322 (ASBCA 2020) (internal citations omitted). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Fifth Circuit Reverses Insurers’ Summary Judgment Award Based on "Your Work" Exclusion

November 18, 2011 — Tred R. Eyerly - Insurance Law Hawaii

Application of the facts to the "your work" exclusion was the key to resolving coverage issued in Am. Home Assurance Co. v. Cat Tech L.L.C., 2011 U.S. App. LEXIS 21076 (5th Cir. Oct. 5, 2011).

Ergon Refining, Inc. hired Cat Tech L.L.C. to service a hydrotreating reactor. In January 2005, Cat Tech replaced certain parts in the reactor. After Cat Tech finished the job and left, Ergon noticed a high pressure drop in the reactor, forcing it to be shut down. Cat Tech returned in February 2005, removed, repaired and replaced the damaged parts, and loaded new parts. After completion, a second large pressure drop occurred during the reactor’s start-up process. The reactor was shut down until October 2005, when Ergon hired a different contractor to perform the repair work. Additional damage to the reactor was found.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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CSLB’s Military Application Assistance Program

October 20, 2016 — Garret Murai – California Construction Law Blog
Who knew? I didn’t. Military Applicants, with Proper Forms, Move to Front of Line for Contractor License Processing SACRAMENTO – The Contractors State License Board (CSLB) salutes U.S. military personnel for their service and offers expedited application processing by specially trained staff to veterans seeking to become licensed contractors. Unfortunately, not all veterans applying for California contractor licenses are able to take advantage of this opportunity because they do not submit the forms required for this service. 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

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Are Millennials Finally Moving Out On Their Own?

July 16, 2014 — Beverley BevenFlorez-CDJ STAFF
Brad Hunter of Big Builder reported that there is “some evidence that young people who had moved in with their parents or relatives are now finding the means and the motivation to move out and get their own place.” According to the 2013 Current Population Survey (as quoted by Big Builder), there was “a drop in the percentage of twenty-somethings living with parents. This was the first decline since 2005, back when the speculative foundations of the housing market started to crumble.” However, a study by the Harvard Joint Center on Housing found that “2.1 million more people between in their 20's lived with their parents than would have typically been the case based on normal headship rates.” This demonstrates that demand for housing should increase as this group gets older and decides to break out on their own. Read the court decision
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Preventing Common Electrical Injuries on the Jobsite

February 03, 2020 — Kelsey Rzepecki - Construction Executive
Despite the overall decrease in electrical workplace fatalities, construction workers remain the most at risk of death from electrical accidents. In 2016, 53% of all fatal electrical injuries were in the construction industry, according to the Bureau of Labor Statistics. Employers can improve their bottom line by implementing prevention strategies to reduce chances of electrical injuries and create a safer, more efficient jobsite. What Are the Most Common Electrical Injuries in Construction? The three types of electrical injuries that occur the most often on construction jobsites are:

1. electrocution (such as electric shock and burns) through unintentional contact with high-voltage lines or equipment;
2. severe burns or death from explosive gases accidentally ignited by electrical equipment; and
3. injuries from falls or from contact with moving equipment after worker experiences a low-voltage electrical shock and can no longer keep balance or physical control of the tools or equipment they have when shocked.

Reprinted courtesy of Kelsey Rzepecki, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Ms. Rzepecki may be contacted at krzepecki@graphicproducts.com

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OSHA Updates: New Submission Requirements for Injury and Illness Records

October 02, 2023 — Ashley Meredith Strittmatter & Chelsea N. Hayes - Construction Executive
In a revival of an OSHA recordkeeping rule originally implemented under the Obama administration in 2016 and "rolled back" by the Trump administration in 2019, OSHA issued a final rule on July 21, 2023, requiring certain establishments in high-hazard industries to submit additional injury and illness data electronically to OSHA. The Final Rule is found at 29 CFR 1904 and goes into effect on Jan. 1, 2024. What does this mean? On and after Jan. 1, 2024, OSHA will require employers with 100 or more workers in certain high-hazard industries to provide annual information from their Forms 300 and 301, in addition to the already-required electronic submission of Form 300A. Form 300 is the Log of Work-Related Injuries and Illnesses, including the specific injuries or illnesses and the employee names, while Form 301 is the corresponding Injury and Illness Incident Report, which includes additional details on each item listed on the 300 Log. Form300A is the corresponding Annual Summary showing the injury and illness totals for the year, including the number of cases, number of lost workdays, the injury and illness types, the average number of employees and the total hours employees worked. This Form 300A Annual Summary must be routinely submitted by employers with more than 250 employees on or before March 2 of each year for the prior year. Reprinted courtesy of Ashley Meredith Strittmatter and Chelsea N. Hayes, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Ms. Strittmatter may be contacted at astrittmatter@bakerdonelson.com Ms. Hayes may be contacted at cnhayes@bakerdonelson.com Read the court decision
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California Appellate Court Holds “Minimal Causal Connection” Satisfies Causation Requirement in All Risk Policies

July 20, 2020 — Scott P. DeVries & Michael S. Levine - Hunton Andrews Kurth
On May 26, 2020, a California Court of Appeals (4th District) issued its decision in Mosley et al. v. Pacific Specialty Ins. Co. The case arose in the context of a marijuana-growing tenant who rerouted a home’s electrical system and caused an electrical fire. The issue was whether the homeowner’s policy covered the loss. The trial court granted the insurer’s motion for summary judgment and, in a divided decision, the Court of Appeals reversed in part. The policy excluded losses “resulting from any manufacturing, production or operation, engaged in … the growing of plants.” The parties agreed that the fire resulted from the rewiring of the electrical system, but disagreed on “whether that means the damage” “result[ed] from” “the growing of plants.” The Court held that “resulting from” “broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.” In doing so, it equated the terms “results from” and “arising from.” Concluding that a “common sense” approach was to be used, it found a “minimal causal connection” to be present. This expansive standard could be beneficial to policyholders in arguing the causal connection between COVID-19 and ensuing business interruption losses; specifically, that the pandemic, a covered event, is the underlying and proximate cause of the insureds’ physical loss and/or damage and the insured’s resulting business interruption loss, and that intervening events, whether they be orders of civil authority, prevention of ingress/egress or otherwise, would not sever the chain of causation. Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth and Michael S. Levine, Hunton Andrews Kurth Mr. DeVries may be contacted at sdevries@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Read the court decision
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Contractual Waiver of Consequential Damages

January 21, 2019 — David Adelstein - Florida Construction Legal Updates
Contractual waivers of consequential damages are important, whether they are mutual or one-sided. I believe in specificity in that the types of consequential damages that are waived should be detailed in the waiver of consequential damages provision. Standard form construction agreements provide a good template of the types of consequential damages that the parties are agreeing to waive. But, what if there is no specificity in the waiver of consequential damages provision? What if the provision just states that the parties mutually agree to waive consequential damages or that one party waives consequential-type damages against the other party? Let me tell you what would happen. The plaintiff will argue that the damages it seeks are general damages and are NOT waived by the waiver of consequential damages provision. The defendant, on the other hand, will argue that the damages are consequential in nature and, therefore, contractually waived. FOR THIS REASON, PARTIES NEED TO APPRECIATE WHAT DAMAGES ARE BEING WAIVED OR LIMITED, AND POTENTIALLY THOSE DAMAGES NOT BEING WAIVED OR LIMITED, WHEN AGREEING TO A WAIVER OF CONSEQUENTIAL DAMAGES PROVISION! Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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