FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Federal Court Opinion Has Huge Impact on the Construction Industry

July 06, 2020 — Wally Zimolong - Supplemental Conditions
The United States District Court for the Eastern District of Pennsylvania in Philadelphia recently issued an opinion that should get the attention of any contractor or subcontractor performing work on a federal funded construction project. In U.S. ex rel IBEW Local 98 v. The Fairfield Company, the federal court held that a contractor on a SEPTA project could be held liable under the False Claims Act for failing to pay its workers under the Davis Bacon Act. The court found that liability was appropriate under the FCA even through the contractor did not knowingly violate the Davis Bacon Act. The court awarded the plaintiff over $1,000,000 in damages and an additional over $1,000,000 in attorneys fees. An Extremely Brief Primer on the FCA A full discussion of the FCA is beyond the realm of this blog post and you could write a book on FCA cases. But in a nutshell, the FCA prohibits a contractor from knowingly submitting a claim for payment to the federal government (or an entity receiving funding from the federal government, like SEPTA) that is false. Importantly, knowingly does not equal actual knowledge of the falsity of the claim. Rather, “reckless disregard of the truth or falsity” of the submission is sufficient. As explained below, this standard played an important role in the court’s decision and should give contractors performing work on federally funded projects pause. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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As Natural Gas Expands in Gulf, Residents Fear Rising Damage

July 11, 2022 — The Associated Press (Cathy Bussewitz & Martha Irvine) - Bloomberg
Lake Charles, Louisiana (AP) -- The front lawn of Lydia Larce’s home is strewn with debris: Remnants of cabinets and chunks of pink shower marble lie between dumpsters. She lives in a FEMA trailer out back, her home in shambles more than a year after Hurricane Laura tore through Lake Charles. Larce, like many in Southwest Louisiana, has what she calls “storm PTSD.” Tornado warnings trigger anxiety. She fidgets and struggles to sleep. "The fear and the unknown — it has me on an edge,” Larce said. “I’m scared.” A string of devastating hurricanes has torn through this region in recent years. Nationally, too, there have been more Category 4 and 5 hurricane landfalls in the past five years than in the previous 50 years combined. Larce and her neighbors know they are on the front lines of climate change. Her region is now the epicenter of a trend that she fears will make those disasters even more destructive. Developers plan to build a series of liquefied natural gas export facilities across Southwest Louisiana, already the heart of the industry. Even in a state with a heavy industrial base, these facilities are among the largest emitters of greenhouse gases in Louisiana. Read the court decision
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Reprinted courtesy of Bloomberg

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Record Keeping—the Devil’s in the Details

July 30, 2015 — Craig Martin – Construction Contract Advisor
Another court has found that poor record keeping will prevent recovery on a claim. The court in Weatherproofing Tech., Inc. v. Alacran Contracting, LLC found that a contractor’s documents were a mess and that no reasonable jury could base a verdict on the contractor’s records. The underlying project involved the construction of an army training facility. The total project cost approximated $13 million. Alacran, the general contractor, subcontracted about $3 million of the work to Weatherproofing Tech. Alacran paid Weatherproofing $700,000 for its work, even though Weatherproofing submitted invoices of more than $2 million. Alacran justified its refusal to pay Weatherproofing on the grounds that the parties had agreed to split the profit and loss on the project and the project was out of money. Not surprisingly, Weatherproofing sued Alacran for the amount owed. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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WSDOT Excludes Non-Minority Women-Owned DBEs from Participation Goals

June 15, 2017 — Ellie Perka - Ahlers & Cressman PLLC
A drastic change has been implemented by the Washington State Department of Transportation (“WSDOT”) to the Disadvantaged Business Enterprise (“DBE”) Program in Washington. Effective June 1, 2017, WSDOT has implemented a “waiver” to exclude women-owned DBEs[i] from qualifying toward Condition of Award (“COA”) Goals on federally-funded projects. This move is significant. It will likely result in long-lasting detrimental impacts on the DBE community, women-owned businesses, and the entire construction community in Washington. The construction industry should be in an uproar over this change. Instead, it has largely gone unnoticed (likely because its impacts have not yet been felt). It is a de facto exclusion of women-owned businesses from the DBE program, and the severity of this change cannot be overstated. Under the waiver, women-owned businesses no longer satisfy COA Goals on federally-funded projects (i.e., projects receiving funding from the Federal Highway Administration) advertised after June 1, 2017. Existing contracts are not impacted and may continue to utilize women-owned DBEs to satisfy COA Goals until the project is complete. The waiver is not retroactive. Read the court decision
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Reprinted courtesy of Ellie Perka, Ahlers & Cressman PLLC
Ms. Perka may be contacted at eperka@ac-lawyers.com

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A Loud Boom, But No Serious Injuries in World Trade Center Accident

March 01, 2012 — CDJ STAFF

The Wall Street Journal reports that nearly twenty tons of steel fell forty stories at the World Trade Center site on February 16. One person was checked by medical personnel. One person who works in the Financial District said it was “almost like thunder.” Frank Pensabene, one of the ironworkers on the site said that after “loud boom,” “all hell broke loose.” The steel beams and cables fell onto a flatbed truck, which was not occupied at the time.

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U.S. Government Bans Use of Mandatory Arbitration Agreements between Nursing Homes and Residents, Effective November 28, 2016

November 17, 2016 — Jeffrey M. Daitz & Joseph Vento – Peckar & Abramson, P.C.
On September 28, 2016, the Centers for Medicare and Medicaid Services (“CMS”), which is part of the U.S. Department of Health and Human Services, issued a new rule that bans federal funding to any nursing home that requires its residents to enter mandatory pre-dispute arbitration agreements upon admission. The rule prevents nursing homes from forcing residents to submit any disputes concerning care, payment for services, etc., to mandatory binding arbitration rather than to a court. Mandatory arbitration agreements are frequently used in many types of industries and have been for decades. However, recent eff orts by several consumer advocate groups have sought to curtail the use of mandatory arbitration clauses in industries where the individuals who executed such agreements have little to no bargaining power. According to these groups, nursing home residents are potentially more vulnerable than most to being unwittingly bound by such agreements because of the nature of the admissions process. The new rule is set to take effect on November 28, 2016, and will only apply to agreements entered into after that date. Reprinted courtesy of Jeffrey M. Daitz, Peckar & Abramson, P.C. and Joseph Vento, Peckar & Abramson, P.C. Mr. Daitz may be contacted at jdaitz@pecklaw.com Mr. Vento may be contacted at jvento@pecklaw.com Read the court decision
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Reminder: Quantum Meruit and Breach of Construction Contract Don’t Mix

July 30, 2015 — Christopher G. Hill – Construction Law Musings
Construction contracts (preferably written ones) are near and dear to my heart here at Construction Law Musings. In a world where the contract is king, having a written construction agreement is a key component of any properly run construction project. However, even with the best construction contract there are claims (Murphy was an optimist after all). When making these claims, we construction lawyers tend to plead both the breach of contract and quantum meruit (or in non lawyer speak- unjust enrichment) when drafting a complaint in a construction dispute. A recent case out of the Western District of Virginia federal district court reminds us all that these two counts must be plead alternatively because they simply cannot exist in a lawsuit from beginning to end. 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

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Design Immunity of Public Entities: Sometimes Designs, Like Recipes, are Best Left Alone

October 21, 2015 — Garret Murai – California Construction Law Blog
April 23, 1985 will live in infamy. The Coca Cola Company, responding to diminishing sales as its “sweeter” rival Pepsi-Cola gained market share, announced that it was changing its “secret” recipe and introducing a new kind of Coke, referred to by the public simply as, “new Coke.” The reaction was unexpected. People around the world began hoarding “old Coke.” Protest groups, such as the Society for the Preservation of the Real Thing and Old Cola Drinkers of America, sprang up around the county. Angry letters addressed to “Chief Dodo” were sent to Coca-Cola’s chief executive officer. And even Fidel Castro, a longtime Coca-Cola drinker, joined the backlash calling “new Coke” a “sign of American capital decadence.” By July it was over. Coca-Cola announced that it would once again produce “old Coke,” and in a sign (I’m sure Fidel Castro would say) of American arrogance, announced that “old Coke” would be produced under the name “Coca-Cola Classic” alongside “new Coke” which would continue to be called “Coca-Cola” suggesting that “new Coke” would be the Coke of today as well as the future. By 1992, however, “new Coke” whose sales dwindled to 3% of market share was demoted to “Coke II” and by 2002 was discontinued entirely. The moral of the story: Change the recipe at your own risk. Castro v. City of Thousand Oaks In the next case, Castro v. City of Thousand Oaks, Case No. B258649, California Court of Appeals for the Second District (August 31, 2015), the corollary might well be change the recipe design at your own risk. 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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