FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Miller Act and “Public Work of the Federal Government”

March 01, 2017 — David Adelstein – Florida Construction Legal Updates
The Miller Act applies to the “construction, alteration, or repair of any public building or public work of the Federal Government.” 40 U.S.C. s. 3131. A recent opinion out of the Northern District of Oklahoma sheds light on what the Miller Act means regarding its application to any public work of the Federal Government. See U.S. v. Bronze Oak, LLC, 2017 WL 190099 (N.D.Ok. 2017). If the project is not a public works project of the Federal Government, the Miller Act does not apply. In this case, the Department of Transportation entered into an agreement with the Cherokee Nation where the Department would provide lump sum funding and the Nation would use the money to fund transportation projects. Based on the federal funding, the Nation issued a bid for a transportation project in Mayes County, Oklahoma and the project was awarded to a prime contractor. The prime contractor provided a payment bond that identified the United States as the obligee (as a Miller Act payment is required to do) and stated that it was issued per the Miller Act. Thereafter, the Nation and Mayes County, Oklahoma entered into a Memorandum of Understanding where the County would assume responsibility for the construction and maintenance of the project and the Nation would pay the County an agreed amount upon the completion of the project. 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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Trends in Project Delivery Methods in Construction

April 03, 2023 — Sarah B. Biser - ConsensusDocs
The three key measures of a construction project’s success are cost, quality, and time (delays). The project delivery method that the owner of the project selects can affect each of these metrics. Project delivery methods in complex construction projects evolve as technology and processes improve. The traditional methods of design-bid-build (DBB), design-build (DB), and construction management (CM) have been the standard for many years. More recently, however, newer methods such as integrated project delivery (IPD), and public-private partnerships (PPP) have gained traction. Design – Bid – Build (DBB) Design-bid-build is the oldest, most commonly used method of project delivery. It involves three distinct phases: design, bid/award, and construction. An owner asks a team of professionals, such as architects, engineers, and contractors, to produce design documents that will be used to solicit bids. After the owner evaluates the bids and chooses a contractor, a construction contract is written. While this method is the most familiar and well-understood, it can lead to disputes during the construction process as changes are made to the original plans. In DBB, the owner bears the risk for funding increased costs attributed to design changes and related delays – thanks to the Spearin Doctrine, which holds that the owner impliedly warrants the information, plans, and specifications that it provides to a general contractor. See 248 U.S. 132 (1918) Although the owner cannot claim against the contractor, it can make a claim against the design firm. Read the court decision
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Reprinted courtesy of Sarah B. Biser, Fox Rothschild LLP (ConsensusDocs)
Ms. Biser may be contacted at sbiser@foxrothschild.com

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A Race to the Finish on Oroville Dam Spillway Fix

October 09, 2018 — Scott Blair - Engineering News-Record
The Lake Oroville spillway’s 400-acre construction site is an intense flurry of activity. In one corner, an excavator driver uses an old tire as a squeegee to clean away loose rock and prep a foundation. In the steeply sloping spillway chute, a crane operator flies in a rebar cage to workers who tie it into neighboring chute wall segments. Everywhere, dump trucks buzz around the circuitous roadways while rock crushers and batch plants keep pace with dozens of dozers and excavators. Drones hover in the sky photographing and surveying the site, while inspectors pour over every detail of the finished assets. Read the court decision
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Reprinted courtesy of Scott Blair, ENR
Mr. Blair may be contacted at blairs@enr.com

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Fifth Circuit -- Damage to Property Beyond Insured’s Product/Work Not Precluded By ‘Your Product/Your Work Exclusion’

January 24, 2022 — Anthony L. Miscioscia & Marianne Bradley - White and Williams LLP
On January 11, 2022, the United States Court of Appeals for the Fifth Circuit issued its decision in Siplast, Incorporated v. Employers Mutual Casualty Company, 2022 U.S. App. LEXIS 795 (5th Cir. Jan. 11, 2022), finding that an insurer had a duty to defend its insured in a construction defect case where the underlying complaint alleged damage to property beyond the product and work of the insured. Siplast, Inc. (Siplast) had contracted with the Archdiocese of New York (the Archdiocese) to install a roof membrane system at a high school in the Bronx, New York. Id. at *1. As part of the contract, Siplast guaranteed that the roof membrane system would remain in a watertight condition for at least twenty years. Id. at *2. If it did not, Siplast would repair the roof membrane system at its own expense. Id. Several years after the installation, the Archdiocese observed water damage in the ceiling tiles at the high school. Id. The Archdiocese contacted Siplast, who attempted to repair the damage and prevent further leaks; however, leaks and resultant damage continued to occur. Id. Siplast subsequently refused to make any more improvements to the roof. Id. Reprinted courtesy of Anthony L. Miscioscia, White and Williams LLP and Marianne Bradley, White and Williams LLP Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Ms. Bradley may be contacted at bradleym@whiteandwilliams.com Read the court decision
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Minnesota Supreme Court Dismisses Vikings Stadium Funding Lawsuit

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
The Minnesota Supreme Court dismissed the lawsuit that had alleged that funding for the new Vikings stadium was unconstitutional, according to KARE. "We were so hopeful the courts would deal with this expeditiously and they did," said Michele Kelm-Helgen, chair of the Minnesota Sports Facilities Authority told KARE. "And they would be definitive in their result and they were." Doug Mann, former Minneapolis mayoral candidate, had been the one to file the lawsuit. Mann told KARE 11 that “the courts made their ‘political stance loud and clear’ and said he did not know if he would pursue any other legal action. But he maintained his position the stadium funding wasn't legally vetted.” Minnesota Vikings spokesperson Lester Bagley declared, “This was the last remaining hurdle that we see in front of us. We are pleased with the Supreme Court's and Court of Appeals' action,” KARE reported. Read the court decision
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It’s All a Matter of [Statutory] Construction: Supreme Court Narrowly Interprets the Good Faith Dispute Exception to Prompt Payment Requirements in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.

May 30, 2018 — Erinn Contreras & Joy O. Siu - Sheppard Mullin Construction & Infrastructure Law Blog
On May 14, 2018, the California Supreme Court issued its opinion in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., No. S231549, slip. op. (Cal. Sup. Ct. May 14, 2018). In it, the Court narrowly construed the “good faith” exception to the general rule that a direct contractor must make retention payments to its subcontractors within 10 days of receiving any retention payment. The exception provides that “[i]f a good faith dispute exists between the direct contractor and a subcontractor, the direct contractor may withhold from the retention to the subcontractor an amount not in excess of 150 percent of the estimated value of the disputed amount.” Cal. Civ. Code section 8814(c). Reprinted courtesy of Erinn Contreras, Sheppard Mullin and Joy O. Siu, Sheppard Mullin Ms. Contreras may be contacted at econtreras@sheppardmullin.com Ms. Siu may be contacted at jsiu@sheppardmullin.com Read the court decision
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Verdict In Favor Of Insured Homeowner Reversed For Improper Jury Instructions

October 23, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The appellate court reversed the jury verdict in favor of the homeowners based upon improper instructions purporting to impose a duty to adjust the claim and how to construe a contract. Citizens Prop. Ins. Corp. v Mendoza, 2018 Fla. App. LEXIS 9497 (Fla. Ct. App. July 5, 2018). The insureds incurred water damage to their home caused by a water heater leak. After a claim was filed, the insurer sent an adjuster to investigate the claim. The insurer denied the claim due to an exclusion for constant or repeated seepage or leakage. At trial, the insurer offered testimony that the leak was a continued and repeated seepage of water over a long period of time, which was excluded under the policy, and not a sudden and accidental discharge of water, which would have been covered. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Is There a Conflict of Interest When a CD Defense Attorney Becomes Coverage Counsel Post-Litigation?

September 01, 2011 — Chad Johnson of Higgins, Hopkins, McLain & Roswell, LLC

In Weitz Co., LLC v. Ohio Cas. Ins. Co., the U.S. District Court for the District of Colorado was asked to rule on a motion to disqualify counsel in an insurance coverage action. 11-CV-00694-REB-BNB, 2011 WL 2535040 (D. Colo. June 27, 2011). Motions to disqualify counsel are viewed with suspicion, as courts “must guard against the possibility that disqualification is sought to ‘secure a tactical advantage in the proceedings.’” Id. at *2 (citing Religious Technology Center v. F.A.C.T. Net, Inc., 945 F. Supp. 1470, 1473 (D. Colo. 1996).

Weitz Company, LLC (“Weitz”) is a general contractor and defendant in an underlying construction defect suit which had concluded before the action bringing rise to this order. In the underlying action, Weitz made third-party claims against subcontractors, including NPW Contracting (“NPW”). Weitz was listed as an additional insured under NPW’s policies with both Ohio Casualty Insurance Company and Mountain States Mutual Casualty Company (collectively “the Carriers”). The Carriers accepted Weitz’s tender of defense under a reservation of rights. However, neither insurance carrier actually contributed to Weitz’s defense costs in the underlying action. At the conclusion of the construction defect action, the parties unsuccessfully attempted to apportion the attorney’s fees and costs. Eventually, Weitz brought suit against the recalcitrant carriers. The Lottner firm, which had previously represented Weitz in the underlying construction defect action, continued to represent Weitz in this coverage action. 

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Reprinted courtesy of Higgins, Hopkins, McLain & Roswell, LLC. Mr. Johnson can be contacted at johnson@hhmrlaw.com

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