FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

AAA Revises Construction Industry Arbitration Rules and Mediation Procedures

July 22, 2024 — Patrick McKnight - The Dispute Resolver
The American Arbitration Association (AAA) recently revised its Construction Industry Arbitration Rules and Mediation Procedures (“the Rules”). Several notable changes went into effect March 1, 2024, involving the scope of confidentiality, regular and fast track procedures, and updates to certain monetary thresholds. I. Revisions to Regular Track Procedures Rule 45: Confidentiality For the first time, confidentiality is now the default standard. Under Rule 45(a), arbitrators must keep all matters confidential unless otherwise required by law, court order or the agreement of the parties. Rule 45(b) allows a mediator to issue confidentiality orders and “take measures for protecting trade secrets and confidential information.” Rule 7: Consolidation and Joinder Under the new provisions, consolidation and joinder requests must be filed before confirmation of the Merits Arbitrator’s appointment. This language eliminates a previous option that allowed confirmation up to 90 days after filing of such requests. A failure to timely respond to a joinder request will result in a waiver of objections. Now, a party must establish both good cause and prejudice for a successful joinder request after confirmation of the arbitrator. Read the court decision
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Reprinted courtesy of Patrick McKnight, Fox Rothschild LLP
Mr. McKnight may be contacted at pmcknight@foxrothschild.com

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New York Developer gets Reprieve in Leasehold Battle

March 19, 2014 — Beverley BevenFlorez-CDJ STAFF
According to The Real Deal, a “Manhattan Supreme Court judge granted an injunction in favor of Tribeca Mews developer Thurcon Properties, which is fighting to keep the leasehold on several adjacent parcels in connection with a certificate of occupancy.” In 2013, Thurcon Properties was sued by the condo board, who claimed “the certificate of occupancy was pushed back at the building due to a number of construction defects.” The Real Deal further reported that the condo board “claimed the developers sold about 10 units to an outside buyer, and took some of the proceeds for themselves.” Recently, a judge “ordered Feldman Heritage, owner of the ground lease at 125 Church and several adjacent sites, to appear in court on April 30,” because he wants the lease owner “to show why Thurcon should not be given the chance to cure the alleged lease default.” Read the court decision
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Reprinted courtesy of

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Loss Ensuing from Faulty Workmanship Covered

April 28, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The court found coverage for damage resulting from faulty workmanship. Drury Co. v. Mo. United Sch. Ins. Counsel, 2014 Mo. App. LEXIS 319 (Mo. Ct. App. March 25, 2014). The School District entered a contract with general contractor, Penzel Construction Company, Inc., to build an addition to a high school. Under the prime contract, the School District was to purchase property insurance, including builder's risk "all-risk" coverage. The policy was to cover the interests of the owner, the contractor, subcontractors and sub-subcontractors in the project. The School District obtained a policy from Missouri United School Insurance Counsel (MUSIC). Exclusions in the all-risk policy included loss due to faulty workmanship or materials, "unless loss by a peril not otherwise excluded ensues and then MUSIC shall be liable only for such ensuing loss." 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

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New Jersey Law Firm Sued for Malpractice in Construction Defect Litigation

July 23, 2014 — Beverley BevenFlorez-CDJ STAFF
Berman Sauter Record & Jardim PC are facing a New Jersey state legal malpractice suit. According to Law 360, condominium associations claimed the law firm “didn't properly name subcontractors as defendants in the associations' complaint over various construction defects, thus blocking them from obtaining damages despite a $1.2 million settlement.” Law 360 reported that the “suit seeks compensatory damages, with interest and costs; reimbursement of attorneys' fees and litigation costs and expenses for both the instant and underlying complaints; and further relief.” The law firm is no longer active, according to Law 360. Read the court decision
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Miorelli Doctrine’s Sovereign Immunity in Public Construction Contracts — Not the Be-All and End-All

March 21, 2022 — David Adelstein - Florida Construction Legal Updates
In the Florida commercial contract public arena, there is a sovereign immunity doctrine known as the Miorelli doctrine after 1997 Florida Supreme Court decision, County of Brevard v. Miorelli Eng’g, Inc., 703 So.2d 1049 (Fla. 1997). This doctrine would apply to construction contracts between a contractor and a public body. Through the years, the Miorelli doctrine stands for the proposition in commercial transactions with a Florida public body “that the doctrine of sovereign immunity precludes recovery of the cost of extra work where claims for that extra work are ‘totally outside’ the terms of the contract.” Monroe County v. Ashbritt, Inc., 47 Fla.L.Weekly D594a (Fla. 3d DCA 2022). See also Asbritt, n.2 quoting Posen Construction v. Lee County, 921 F.Supp.2d 1350, 1356 (M.D.Fla. 2013) (“A claim for damages predicated on work ‘totally outside the terms of the contract‘ is barred by the doctrine of sovereign immunity, whereas damages caused by extra work done at the state’s behest and in furtherance of the contractual covenants (express or implied) are potentially recoverable.”) 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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Judicial Economy Disfavors Enforcement of Mandatory Forum Selection Clause

December 16, 2023 — David Adelstein - Florida Construction Legal Updates
Mandatory forum (venue) selection provisions are generally construed in favor of enforceability. Parties agreed to the forum for disputes so why not enforce them, right? A recent federal district court case out of the Eastern District of Louisiana exemplifies an exception grounded in judicial economy which disfavors the enforceability of mandatory forum selection provisions. Keep in mind that this judicial economy exception is fairly limited but the fact pattern below demonstrates why enforcing the mandatory forum selection provision was disfavored due to judicial economy. In U.S. f/u/b/o Exposed Roof Design, LLC v. Tandem Roofing, 2023 WL 7688584 (E.D.La. 2023), a sub-subcontractor filed a Miller Act payment bond lawsuit against the prime contractor and the prime contractor’s Miller Act payment bond sureties. The sub-subcontractor also sued the subcontractor that hired it. However, the sub-subcontractor’s subcontract with the subcontractor included a mandatory forum selection provision in a different form. The subcontractor moved to sever and transfer the sub-subcontractor’s claims against it to the forum agreed upon in the subcontract. The trial court denied the severance and the transfer. Below are the reasons. 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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EPA Issues Interpretive Statement on Application of NPDES Permit System to Releases of Pollutants to Groundwater

May 27, 2019 — Anthony B. Cavender - Gravel2Gavel
On Tuesday, April 23, 2019, in a development of interest to practically anyone who operates a plant or business, EPA published its Interpretive Statement in the Federal Register. (See 84 FR 16810 (April 23, 2019).) After considering the thousands of comments it received in response to a February 20, 2018, Federal Register notice, EPA has concluded that “the Clean Water Act (CWA) is best read as excluding all releases of pollutants from a point source to groundwater from a point source from NPDES program coverage, regardless of a hydrological connection between the groundwater and jurisdictional surface water.” Acknowledging that its past public statements have not been especially consistent or unambiguous on this important matter, EPA states that this interpretation “is the best, if not the only reading of the CWA, is more consistent with Congress’ intent than other interpretations of the Act, and best addresses the question of NPDES permit program applicability for pollutant releases to groundwater within the authority of the CWA.” Indeed, the absence of “a dedicated statement on the best reading of the CWA has generated confusion in the courts, and uncertainly for EPA regional offices and states implementing the NPDES program, regulated entities, and the public.” The recent and contrary interpretations of this issue by the Ninth Circuit (Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737) and the Fourth Circuit (Upstate Forever v. Kinder Morgan Energy Partners, LP, 887 F.3d 637) will be reviewed by the U.S. Supreme Court, which will now have the benefit of the agency’s official position. In addition, EPA discloses that it will be soliciting additional public “input” on how it can best provide the regulated community with “further clarity and regulatory certainly”; these comments will be due within 45 days (June 7, 2019). Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Insurer’s Attempt to Shift Cost of Defense to Another Insurer Found Void as to Public Policy

June 09, 2016 — Garret Murai – California Construction Law Blog
While construction can sometimes be risky, construction litigation is almost always expensive. This volatile mix of risk and expense has made risk shifting, through indemnity and insurance, a primary goal and concern of project owners, contractors and suppliers alike. Construction insurers know this all too well and insurers, even between themselves, seek to shift risk. As one primary insurer found, however, risk shifting provisions in their policies – specifically, one which sought to shift the cost of defense to another insurer – is not without its limitations. 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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