Fairfield Connecticut Building Expert Directory

Construction in Indian Country – What You Need To Know About Sovereign Immunity

July 22, 2019 — Edward J. Hermes - Snell & Wilmer Under Construction Blog
There are many legal issues to consider when bidding on and building projects in American Indian Country. Which labor and employment laws apply? Are there contracting or hiring preferences that apply? Do the Prompt Pay Act and other state laws apply? Can I bring a lawsuit to enforce the contract and, if so, where would I file suit? This article addresses the final question, which is often the most important question when contracting with a tribal entity. Many of the construction projects in American Indian Country are with tribes or entities wholly owned or by a tribe, such as housing authorities, casinos, hospitals, schools or other economic enterprises. Like the state and federal government, tribes (and their tribally—owned enterprises) enjoy sovereign immunity from any lawsuit, meaning they cannot be sued unless the tribe expressly agrees to waive its sovereign immunity. Sovereign immunity poses a unique issue for contractors that does not typically arise in other projects, but it need not be a deterrent to doing business with tribes. It is usually in the best interest of both the contractor and tribe to negotiate an acceptable waiver of sovereign immunity. Absent such a waiver, the tribe or tribal entity cannot be sued and the resulting forfeiture of remedies can be devastating for the contractor. To waive sovereign immunity, the tribe must make it clear in the contract that it can be sued in a specific jurisdiction. Oklahoma Tax Comm'n v. Citizen Band Potawatomi tribe of Okla., 498 U.S. 505, 509 (1991). It does not matter whether the tribe is operating on or off its lands—if there is no express contractual waiver of sovereign immunity, a contractor will have no recourse in the event of non-payment or other breach of contract. See Kiowa tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). Read the court decision
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Reprinted courtesy of Edward J. Hermes, Snell & Wilmer
Mr. Hermes may be contacted at ehermes@swlaw.com

Feds OK $9B Houston Highway Project After Two-Year Pause

March 20, 2023 — James Leggate - Engineering News-Record
The Federal Highway Administration has agreed to let a $9-billion Texas highway reconstruction project proceed after a two-year pause over concerns linked to the project’s potential impact on communities along the route, including a lawsuit filed by Harris County to halt contracting, pending a new environmental impact review. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Appraisal May Include Cause of Loss Issues

March 21, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court determined that an appraisal can include causation issues when determining the amount of loss. B&D Inv. Grp., LLC v. Mid-Century Ins. Co., 2021 U.S. Dist. LEXIS 246853 (N.D. Ill. Dec. 28, 2021). B&D commercial building was damaged by hail. B&D submitted a claim to Mid-Century, but the parties disagreed as to the damage. Mid-Century found there was hail damage to metal vents on the roof and estimated the repair costs to be $4,271.95. Mid-Century found no hail damage to the roof itself. B&D disagreed and insisted that there was additional damage to the property, specifically the roof. B&D requested an appraisal, but Mid-Century denied the request. Mid-Century found that the condition of the roof was due to wear and tear and therefore constituted an excluded cause under the policy. B&D filed suit seeking a declaratory judgment compelling the parties to proceed with an appraisal. 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

9 Basic Strategies for Pursuing Coverage for Construction Accident Claims

September 05, 2022 — William S. Bennett - Saxe Doernberger & Vita, P.C.
Construction accidents happen all the time. Accidents involving worker injuries or damage to property can shut down a job site and cause significant losses. Contractors should be diligent and aggressive in examining all of the available options for recovery under their different insurance policies and bonds. This article will provide a refresher on some basic tips to help policyholders improve claims practices with respect to construction accidents. 1. Identify relevant insurance policies: Identifying what policies exist that might cover the loss can sometimes be easier said than done. Construction accidents come in many different forms and can involve many different parties who suffer various types of losses. The general contractor, owner, subcontractors, and vendors could all be involved or affected in some way. Each of these parties has its own insurance coverage and will have promised each other various forms of risk transfer through those policies and through their contracts. Read the court decision
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Reprinted courtesy of William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Bennett may be contacted at wsb@sdvlaw.com

Rio de Janeiro's Bursting Real-Estate Bubble

September 17, 2015 — Juan Pablo Spinetto & Peter Millard – Bloomberg
At opposite ends of downtown Rio de Janeiro, projects tied to Donald Trump and Eike Batista-- one a billionaire-turned-politician, the other Brazil’s most famous ex-billionaire -- have come to represent the city’s real estate bust. The 23-story Serrador building, a granite-and-glass art deco tower near Rio’s Santos Dumont airport, has sat empty since Batista’s failed empire of commodities companies abandoned it last year. Four miles away, in the city’s gritty port district, an ambitious office project that Trump lent his name to is still nothing more than a weed-filled lot about a year after construction was slated to begin. Reprinted courtesy of Juan Pablo Spinetto, Bloomberg and Peter Millard, Bloomberg Read the court decision
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Insurance Coverage for COVID-19? Two N.J. Courts Allow Litigation to Proceed

March 06, 2022 — Bethany L. Barrese - Saxe Doernberger & Vita, P.C.
Courts across the nation have struggled to determine whether insurance policies that provide coverage for “direct physical loss or damage” insure losses stemming from COVID-19. Many courts have been applying an overly stringent pleading standard, inappropriately granting insurers’ motions to dismiss as a result of the insureds’ purported failure to allege that COVID-19 caused damages covered by their policies or because certain exclusions supposedly barred coverage. However, two New Jersey state courts recently decided these issues in favor of the insureds in well-reasoned opinions that give proper deference to procedural pleading standards and substantive insurance coverage law. A. COVID-19 causes “direct physical loss or damage” In AC Ocean Walk, LLC v. American Guarantee and Liability Ins. Co., the New Jersey Superior Court held that physical alteration to an insured’s property is not a prerequisite to coverage for losses due to COVID-19. The insured, Ocean Casino, sued multiple insurers for COVID-19 losses, alleging that the virus caused Ocean Casino to shut down and suffer a loss of use of its property. Looking at the language of the policies, the court explained that each policy’s insuring agreement substantially read the same:

“This policy insures against direct physical loss of, or damage caused by, a covered cause of loss to covered property, at an insured location [the casino] … subject to the terms, conditions, and exclusions stated in this policy.”

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Reprinted courtesy of Bethany L. Barrese, Saxe Doernberger & Vita, P.C.
Ms. Barrese may be contacted at BBarrese@sdvlaw.com

City of Aspen v. Burlingame Ranch II Condominium Owners Association: Clarifying the Application of the Colorado Governmental Immunity Act

June 17, 2024 — David McLain - Higgins, Hopkins, McLain & Roswell, LLC
On June 17, 2024, the Colorado Supreme Court delivered a significant opinion in the case of City of Aspen v. Burlingame Ranch II Condominium Owners Association (Case No. 22SC293). This decision provides crucial guidance on the interplay between the Colorado Governmental Immunity Act (“CGIA”) and the economic loss rule in the context of construction defect claims. Background of the Case The case arose from a construction defect dispute between the City of Aspen, which served as the developer and declarant for the affordable housing condominiums at issue, and the Burlingame Ranch II Condominium Owners Association, the HOA created by Aspen to manage the association after the period of declarant control. The Association alleged that Aspen breached various warranties related to the construction of affordable housing units, leading to structural deficiencies. Aspen argued that the CGIA barred these claims because they could lie in tort. The Lower Court’s Decision The district court initially agreed with Aspen, holding that the Association’s claims sounded in tort and were therefore barred by the CGIA. The court relied on the principle that governmental immunity protects public entities from liability for claims that ‘lie in tort or could lie in tort,’ as established by the CGIA. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

Homebuilders See Record Bearish Bets on Shaky Recovery

June 18, 2014 — Callie Bost – Bloomberg
Someone thinks the housing rebound is built on shaky foundations. A record 180,000 puts traded on the SPDR S&P Homebuilders (XHB) exchange-traded fund on June 11, according to data compiled by Bloomberg. The contract with the highest ownership pays off in the event of a 20 percent slump by December in the ETF tracking stocks from DR Horton Inc. to Williams-Sonoma Inc. Prospects for rising interest rates and an uneven recovery in the housing market have hurt returns this year, sending the SPDR Homebuilders ETF down 3.3 percent. While economic data yesterday showed that builders broke ground on 1 million U.S. homes in May, permits, a proxy for future construction, decreased because of fewer applications for condominiums and apartment buildings. Read the court decision
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Ms. Bost may be contacted at cbost2@bloomberg.net

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