FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Best Practices for ESI Collection in Construction Litigation

October 05, 2020 — Kelley J. Halliburton - Construction Executive
The construction business has always been heavy on records and data but now more than ever much of that information is stored electronically. Gone are the days of just a trailer full of drawings and paper documents. Construction projects now have huge amounts of electronically stored information (ESI) including contract documents; drawings in both CAD, PDF and other formats; schedule files such as Primavera; spreadsheets; photos; job cost control software files; formal correspondence; and an ever-expanding amount of email communications. Successful collection of this ESI can be critical to the success of litigation in construction cases, where often very complex facts will need to be gathered to support a claim or defense. The best first step to a successful ESI collection is to build a solid foundation before trouble arises with prepared policies and procedures in place. Implementing and enforcing a document management plan on a project basis will make sure documents are kept in an organized fashion so that materials can be accessed quickly and easily. Document management is important for types of ESI that are not handled well by word-searches, including Primavera schedules, photos and videos. Reprinted courtesy of Kelley J. Halliburton, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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D.R. Horton Earnings Rise as Sales and Order Volume Increase

May 07, 2015 — John Gittelsohn – Bloomberg
D.R. Horton Inc., the largest U.S. homebuilder by revenue, said fiscal second-quarter earnings rose as sales increased in a sign of growing demand for new homes. Net income climbed to $147.9 million, or 40 cents a share, for the three months ended March 31 from $131 million, or 38 cents, a year earlier, the Fort Worth, Texas-based company said Wednesday in a statement. The average of 15 analyst estimates was 38 cents a share, according to data compiled by Bloomberg. “The spring selling season at D.R. Horton is off to a strong start,” Chairman Donald R. Horton said in the statement. “Our increasingly diverse product offerings are enabling us to expand our industry-leading market share.” Read the court decision
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Reprinted courtesy of John Gittelsohn, Bloomberg
Mr. Gittelsohn may be contacted at johngitt@bloomberg.net

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California Supreme Court Holds that Prevailing Wages are Not Required for Mobilization Work, for Now

October 18, 2021 — Garret Murai - California Construction Law Blog
In the midst of the Great Depression the federal government enacted the Davis-Bacon Act (40 U.S.C. section 32141 et seq.) to help workers on federal construction projects. Under the Davis-Bacon Act, minimum wages must be paid to workers on federal public works projects based on local “prevailing” wages. At the time, the goal of the law was to help curb the displacement of families by employers who were recruiting lower-wage workers from outside local areas. A darker history suggests that it was also intended to discourage minority workers from competing with unionized white workers. Fast forward to today. Many states, including California, adopted “Little Davis-Bacon” laws applying similar requirements on state and local public works projects. California’s prevailing wage law (Labor Code section 1720 et seq.) requires contractors on state and local public works projects pay their workers the general prevailing rate of per diem wages based on the classification or type of work performed by the employee in the locality where the project is located. Over the years, labor unions have sought to expand the definition of what constitutes a “public works project” from private residential developments receiving public funding (generally, prevailing wages required) to off-site fabrication of materials at permanent facility for a public works project (no prevailing wages required) to enforcement mechanisms such as making a general contractor liable for prevailing wage violations of its subcontractors (yes, indeedy, see Labor Code section 1775). Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Good News on Prices for Some Construction Materials

June 28, 2021 — ABC - Construction Executive
The elevated price of softwood lumber, a major talking point during much of the pandemic, appears to have peaked in early May at more than $1,700 per thousand board feet. As of June 23, the price has fallen below $900 per board feet, down about 49% in less than two months. That’s still an unusually lofty price by historic standards—prices remain almost twice as high as in February 2020—but the trend is very much in the right direction. Builders that had been hoarding lumber have now begun to sell from their own inventory, other builders have delayed lumber purchases in anticipation of lower prices and sawmill operators have been adding shifts, as well as expanding capacity, all of which puts downward pressure on prices. Reprinted courtesy of ABC, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Construction Litigation Roundup: “Based on New Information …”

August 01, 2023 — Daniel Lund III - Lexology
Based on new information … your arbitration award is thrown out! So said the United States Eleventh Circuit Court of Appeals, affirming a district court’s vacatur of the award based upon the award having been procured by fraud. The lower court ruled as it did notwithstanding the fact that the action seeking to have the arbitration award vacated was filed and served beyond the three months allowed by the Federal Arbitration Act, 9 U.S.C. 12. The party attacking arbitration award alleged that during the course of the arbitration hearing, a witness whose testimony was been handled remotely by videoconference was being inappropriately aided: the witness was being instructed remotely – by texting – by the corporate representative for his company, who was entitled to sit in on all portions of the arbitration hearing. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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Are You Satisfying WISHA Standards?

October 23, 2018 — Ceslie Blass - Ahlers Cressman & Sleight PLLC Blog
Many general contractors and property management companies hand over project sites to subcontractors and have little, if anything, to do with the construction work that occurs. However, under RCW 49.17, the Washington Industrial Safety and Health Act (WISHA), general contractors and some property management companies/owners are still responsible for workplace safety for the employees of their subcontractors and independent contractors. The Washington Supreme Court held in Stute v. PBMC that a general contractor could be held liable for injury to a subcontractor’s employee sustained as a result of a WISHA violation.[1] The Stute decision changed the landscape of workplace safety, imposing an expansive, per se liability on general contractors for workplace injuries. Stated differently, general contractors have a specific, non-delegable duty to ensure compliance with WISHA regulations, which extends to all employees on the project site.[2] Washington courts have held that such “expansive liability is justified because ‘a general contractor’s supervisory authority is per se control over the workplace.’”[3] Thus, the non-delegable duty requires general contractors to ensure care is exercised by anyone, even an independent contractor to whom the performance of the duty is entrusted. Read the court decision
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Reprinted courtesy of Ceslie Blass, Ahlers Cressman & Sleight PLLC
Ms. Blass may be contacted at ceslie.blass@acslawyers.com

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New York Court Rules on Architect's Duty Under Contract and Tort Principles

November 05, 2014 — Beverley BevenFlorez-CDJ STAFF
According to Traub Lieberman Straus & Shrewsberry LLP's blog, in a recent case, "which involved a five story expansion/conversion of an existing one story commercial building located in Brooklyn, New York," the architect was retained with obligations among five construction phases. Later, the condominium board alleged that construction defects existed and filed suit against contractors, engineers, and the architect. The Court granted the Architect's motion to dismiss the complaint, holding "that the allegations of negligence under the circumstances were based on construction defects and 'as such, sound in breach of contract rather than tort.' This was so, even though plaintiff alleged 'breach of a duty of care,' a traditional tort liability concept. The Court dismissed the breach of contract claim as well, holding that a 'successor in interest' argument should not be permitted to erode the firmly established privity requirement for an architect’s contract-based liability." Read the court decision
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Complying With Data Breach Regulations in the Construction Industry

November 24, 2019 — Ryan Bilbrey - Construction Executive
Recent data breach incidents—like the massive Capital One cyberattack, where a former employee accessed more than 100 million customer accounts and credit card applications—have left many users questioning how safe their information really is in the hands of companies. There is reason to be concerned. More than 4.1 billion records were exposed in nearly 4,000 data breaches reported in the first half of 2019 alone, according to the 2019 MidYear QuickView Data Breach Report. Construction companies are not immune. As the industry becomes more reliant on technology—using augmented reality, Building Information Modeling and drones on construction sites, for example—construction companies are becoming greater targets for hackers looking to gain a financial or strategic advantage. Instead of assuming a company will never experience a breach (or rather, denying that it will ever happen), it’s important to be aware of possible threats and establish data breach response policies to minimize potentially catastrophic fallout. Reprinted courtesy of Ryan Bilbrey, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Bilbrey may be contacted at rbilbrey@biaprotect.com

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