Fairfield Connecticut Building Expert Directory

General Contractor’s Intentionally False Certifications Bar It From Any Recovery From Owner

November 03, 2016 — Masaki James Yamada – Ahlers & Cressman PLLC
In a public works dispute in Massachusetts, a Massachusetts Court judge ruled that a general contractor could not recover any of its over $14 million claim against a public owner because it had violated its contract with the Owner by certifying that it had paid its subcontractors in full and on time when in fact it had not.[i] The case involves a contract dispute arising from a state and federally-funded project to design and construct a fiber optic network in western Massachusetts. The Owner was a state development agency established and organized to receive both state and federal funding to build a 1,200–mile fiber optic network known as MassBroadband123 in Western Massachusetts (the Project). Of that amount, $45.4 million was awarded pursuant to the American Recovery and Reinvestment Act of 2009 (ARRA). One of the stated goals of ARRA was (as its title suggests) to create jobs in the wake of the 2008 recession and to provide a direct financial boost to those impacted by the economic crisis. In the context of the instant case, that meant that, if there were to be subcontractors on the job providing labor and materials, they needed to be paid on a timely basis in keeping with the statutory purpose of stimulating the economy. Read the court decision
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Reprinted courtesy of Masaki James Yamada, Ahlers & Cressman PLLC
Mr. Yamada may be contacted at myamada@ac-lawyers.com

Build, Baby, Build. But Not Like This, Britain.

March 04, 2024 — Matthew Brooker - Bloomberg
The UK needs to do a lot more building. A lack of access to physical and digital connections is holding back the economy, the government says. Besides tackling the housing crisis, the country has to construct more roads, railways, wind farms and reservoirs to open up opportunity and drive productivity. The only problem is that Britain is notoriously inept at delivering infrastructure projects on time and within budget. The advantage of doing things badly is that at least you get to learn from your mistakes — in theory. Updates this month have offered some illuminating insights into two of the biggest civil-engineering undertakings in the country: High-Speed Rail 2, better known as HS2, and Hinkley Point C, which will be Britain’s first new nuclear power station since 1995. Here are five lessons that can be drawn from the issues encountered by two projects with a combined bill that’s likely to exceed £100 billion ($127 billion): Don't take budgets too seriously — especially at the start. Fixing an initial budget that was too low may have done much to feed later perceptions that HS2’s costs were spiraling out of control. The original estimate for the expanded train network was set too early and based on “very immature data,” Jon Thompson, appointed executive chair of High Speed 2 Ltd. in February last year, told the House of Commons transport committee. Numbers get more accurate and reliable as work progresses and the quality of information improves. What were viewed as cost blowouts partly reflected this process. The effect was unfortunate, undermining political support for HS2 and providing cover for cutbacks that have reduced the network to a single line between London and Birmingham that fails to fulfill most of its original purpose. To avoid this problem: Stick to a range rather than a single figure, and make sure people understand the uncertainties inherent in early-stage estimates. Read the court decision
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Reprinted courtesy of Matthew Brooker, Bloomberg

Treble Damages Awarded After Insurer Denies Coverage for Collapse

July 03, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The Fourth Circuit upheld the district court's decision that a collapse was covered, but reversed the denial of treble damages to the insured. DENC, LLC v. Phila. Indem. Ins. Co., 2022 U.S. App. LEXIS 10443 (4th Cir. April 18, 2022). The district court decision was summarized here. DENC owned The Crest, an apartment building leased to Elon University for student housing. Philadelphia Indemnity Company insured the property. In January 2018, students gathered on a second-floor breezeway for a party. Partygoers began jumping in the breezeway, which caused an abrupt collapse. Observers noticed that the breezeway was hanging down by more that a foot. DENC filed a claim with Philadelphia the next day. An adjuster was sent to inspect the breezeway. By that time, the city had condemned The Crest. The adjuster said that undiscovered "water damage which occurred over an extended period of time" caused the loss. 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

Summarizing Changes to NEPA in the Fiscal Responsibility Act (P.L. 118-5)

September 05, 2023 — Anthony B. Cavender & Marcus Manca - Gravel2Gavel Construction & Real Estate Law Blog
The National Environmental Policy Act (NEPA) was signed into law on January 1, 1970, and it has rarely been amended or revised since then. NEPA is basically a procedural statute which requires Federal permitting authorities, before a major federal project is approved, to carefully consider the significant environmental consequences of the proposed federal action. NEPA has been employed to conduct a probing review of wide variety of federal projects and actions, and the President’s Council on Environmental Quality (CEQ) has promulgated a comprehensive set of rules and guidance documents that must be followed or consulted. (See 40 CFR Section 1500 et seq.) The first set of NEPA rules was issued in 1978, and very little was done to bring the rules up to date until 2020. The first phase of this review has been completed, and a second and final phase will soon be underway. The NEPA review process includes the use of “categorical exclusions,” environmental assessments and environmental impact statements to measure the environmental impact of a proposed project. Over time, the rules and their implementation and judicial interpretation have become ever more complex, and an enormous body of NEPA case law has resulted. The recent Congressional debt limit deliberations provided an opportunity to revise some of these procedures, and the Fiscal Responsibility Act, signed into law on June 3, 2023, included at Title III, a section devoted to “Permitting Reform.” Reprinted courtesy of Anthony B. Cavender, Pillsbury and Marcus Manca, Pillsbury Read the court decision
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Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

There Is No Sympathy If You Fail to Read Closely the Final Negotiated Construction Contract

February 28, 2022 — David Adelstein - Florida Construction Legal Updates
When an opinion in a case starts with, “Unlike some motions, not even the most ingenious lawyers could make this one complicated,” you know you are in for an interesting read. This was how the opinion started in U.S. f/u/b/o Hambric Steel and Fabrication, Inc. v. Leebcor Services, LLC, 2022 WL 345636 (M.D. GA. 2022), which concerns a Miller Act payment bond dispute between a subcontractor and prime contractor on a federal construction project. As demonstrated below, the moral of this case is in fact simple. Read what you sign BEFORE you sign! No ifs, ands, or buts. Failure to do so will garner very little sympathy. This case dealt with a prime contractor arguing that the subcontractor pulled the wool over its eyes by surreptitiously altering the final negotiated redlined contract between the parties. In particular, the prime contractor claimed that the dispute resolution provision was supposed to include a Virginia venue provision. However, the subcontractor “fraudulently” changed this provision to make it a Georgia venue provision after the final contract had been agreed to during the negotiation. Yet, it is undisputed that the executed contract between the parties included a Georgia venue provision. 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

San Francisco Museum Nears $610 Million Fundraising Goal

June 26, 2014 — Dan Levy – Bloomberg
The biggest museum fundraising campaign in San Francisco history is nearing its $610 million goal two years before the opening of a new wing that will more than double the space for artworks by Andy Warhol, Mark Rothko and David Hockney. About $570 million, or 94 percent, has been raised by the San Francisco Museum of Modern Art for its 235,000-square-foot (21,800-square-meter) expansion and to add $245 million to the museum’s endowment. The $305 million wing designed by the Snohetta architecture firm is rising behind SFMOMA’s current home, opened two decades ago in the technology-heavy South of Market area, or SOMA. “In 1995, we were the pioneers when SOMA was pretty run-down, and the tech boom followed us,” Neal Benezra, the museum’s director, said June 20 in a presentation at Bloomberg LP’s San Francisco offices. “Our expansion will solidify the neighborhood as a cultural hub.” Read the court decision
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Reprinted courtesy of Dan Levy, Bloomberg
Mr. Levy may be contacted at dlevy13@bloomberg.net

Adjuster's Report No Substitute for Proof of Loss Under Flood Policy

July 30, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The insured's claim for flood coverage was denied when the insurer refused to accept an adjuster's report submitted without a proof of loss. Jackson v. Fid. Nat'l Ins. Co., 2015 U.S. Dist. LEXIS 66589 (E.D. La. May 21, 2015). Plaintiff's property was damaged by Hurricane Isaac. Defendant Fidelity provided flood coverage for the property through the National Flood Insurance Program (NFIP). After plaintiff submitted a flood claim, she executed a proof of loss for $53,803.02. A second proof of loss for contents was submitted in the amount of $26,556.13. Fidelity paid both these claims. Thereafter, an adjuster's estimate of plaintiff's damages, totaling $284,332.91, was submitted to Fidelity. Plaintiff did not submit a supplemental proof of loss for this claim. Fidelity refused to pay the claim and plaintiff filed suit. 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

Avoid Drowning in Data: Keep Afloat with ESI in Construction Litigation

May 15, 2023 — Steve Swart - The Dispute Resolver
Maybe it is another lawyer on your team, a client, the Court. Maybe it is you. Almost every lawyer has heard (or thought, felt, or anguished over) the following: Wait — What? Discovery is going to cost how much? The concern is real. Per a 2019 Southern District of New York opinion:

The average case can involve collection, review and production of 100 gigabytes of data (or 6.5 million pages of Word documents).
At a typical rate of review of 40-60 documents per hour, assuming 100,000 documents are collected, that is about 2,000 hours of attorney review time.
Adding in fees for forensic collection, storage, and processing to maintain metadata can result in a bill totaling $500,000.

Brown v. Barnes & Noble, Inc., 474 F. Supp. 3d 637, 645 & n.3 (S.D.N.Y. 2019). What's counsel to do? The following four points can help counsel streamline and reduce costs in discovery: (1) know your case, (2) know your data — understand it and document collection, (3) cooperate with counsel, and (4) implement a protocol for electronically-stored information ("ESI"). Read the court decision
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Reprinted courtesy of Steve Swart, Williams Mullen
Mr. Swart may be contacted at sswart@williamsmullen.com

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES