Fairfield Connecticut Building Expert Directory

“Time Is Money!” In Construction and This Is Why There Is a Liquidated Damages Provision

February 01, 2022 — David Adelstein - Florida Construction Legal Updates
In construction, the adage “Time is Money!” rings true for all parties involved on a project. This includes an owner of a project that wants a project completed on time, i.e., by a substantial completion date. While substantial completion is often defined as when an owner can use a project for its intended purpose, this intended purpose typically equates to beneficial occupancy (in new construction) and other factors as identified in the contract. The best mechanism for an owner to reinforce time and the substantial completion date is through a liquidated damages provision (also known as an LD provision) that includes a daily monetary rate for each day of delay to the substantial completion date. A liquidated damages provision is not designed, and should NEVER be designed, to serve as a penalty because then it would be unenforceable. Instead, it should be designed to reasonably compensate an owner for delay to the substantial completion date that cannot be ascertained with any reasonable degree of certainty at the time the contract is being negotiated and executed. (Liquidated damages are MUCH easier to prove than actual damages an owner may incur down the road.) As an owner, you don’t really want to assess liquidated damages because that means the project is not substantially completed on time. And, in reality, a timely completed and performing project should always be better and more profitable than a late and underperforming project. However, without the liquidated damages provision, there isn’t a great way to hold a contractor’s feet to the fire with respect to the substantial completion date. 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

More (and Simpler) Options Under New Oregon Retention Law

October 21, 2024 — Michael Yelle - Ahlers Cressman & Sleight PLLC
Similar to the changes made by the Washington Legislature last year, the Oregon Legislature recently changed its retention law. Oregon public works agencies and large commercial project owners are now required to accept surety bonds in lieu of withholding retainage on construction projects. There is also no longer a requirement to deposit retention funds in an interest-bearing escrow account. The owner or public agency must accept the bond in lieu of retainage unless specific grounds exist. For example, public agencies must find there is “good cause” for rejection of the bond based on the “unique project circumstances. Private owners have less discretion to reject a bond and if the bond meets the statutory requirements, per ORS 701.435(1)(a) “the owner and lender shall accept” the bond “in lieu of all or any portion of the retainage…” Courts have not analyzed when “good cause” exists for public agencies to reject bonds or exactly what will allow a private owner to reject a bond. However, an agency or owner cannot have a general policy to reject retention bonds. The statute does not provide next steps if the contractor disagrees with a decision to reject the bond. It may be necessary to proceed under the contract’s dispute resolution procedure or it may be more appropriate to take the issue directly to the courts. Read the court decision
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Reprinted courtesy of Michael Yelle, Ahlers Cressman & Sleight PLLC
Mr. Yelle may be contacted at michael.yelle@acslawyers.com

California Booms With FivePoint New Schools: Real Estate

May 13, 2014 — John Gittelsohn – Bloomberg
FivePoint Communities Management Inc. is already constructing a school at its Great Park Neighborhoods project in Irvine, California, for 1,000 elementary and middle school students even as it’s still building the first 700 homes. “We build the schools ahead of time,” said Emile Haddad, chief executive officer of Aliso Viejo, California-based FivePoint, which has permits for about 10,000 homes at Great Park. “That way we always have them ready.” Local schools, along with parks and recreation facilities, have long been draws for buyers in new communities. Now, as school districts face tight construction budgets and homebuilders compete to attract families able to qualify for mortgages, developers are taking the lead on school construction instead of waiting for local governments to do the job. Read the court decision
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Reprinted courtesy of John Gittelsohn, Bloomberg
Mr. Gittelsohn may be contacted at johngitt@bloomberg.net

Do Construction Contracts and Fraud Mix After All?

October 27, 2016 — Christopher G. Hill – Construction Law Musings
On several occasions here at Construction Law Musings, I’ve discussed the fact that, with a few exceptions, fraud claims and written construction contract based claims do not mix. One of the exceptions to the so called “economic loss rule” that would seem to preclude both fraud and contract claims in the same lawsuit is where fraud is used to induce the contract in the first place. This exception would only apply where an independent duty, wholly outside of the duties created by the contract, is properly plead and proven to the court. For the same reason, namely a separate duty outside of the contract, the Virginia Consumer Protection Act (“VCPA”) may allow for an exception that would allow a cause of action under this statute. Up until recently, the courts of Virginia have used these exceptions sparingly. However, the recent Loudoun County, VA Circuit Court opinion in Interbuild, Inc. v. Sayers (opinion also found at Virginia Lawyers Weekly) may signal a broadening of these exceptions. In the Interbuild case, the Court considered a claim for fraud in the inducement and breach of the VCPA. The basic facts plead by the plaintiffs were that Interbuild induced them into the contract through statements that it had been an established business since 1981, the project did not require a building permit, it had obtained all necessary subcontractor prices and would provide full-time project supervision, the project would be completed within 16 weeks, 4000 PSI concrete would be used for the project and that the project would be located in the agreed-upon area depicted and that they reasonably relied on these representations in deciding to enter into the contract to build their recreational facility. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Common Flood Insurance Myths and how Agents can Debunk Them

September 17, 2014 — Beverley BevenFlorez-CDJ STAFF
Property Casualty 360 listed four common misconceptions that many homeowners have about flood insurance. First myth on the list was, “I don’t have to worry about flooding because I don’t live near a body of water.” The author pointed out recent floods in desert areas such as Arizona and Nevada. “I don't qualify for government flood insurance because my property isn’t located in a flood plain,” made number two on the list. According to Property Casualty 360, “NFIP can provide coverage available to any homeowner, regardless of their location.” Read the court decision
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Reprinted courtesy of

Just Because You Allege There Was an Oral Contract Doesn’t Mean You’re Off the Hook for Attorneys’ Fees if you Lose

March 28, 2022 — Garret Murai - California Construction Law Blog
There’s certain things in life you shouldn’t mix. Like drinking and driving. Bleach and ammonia. Triple dog dares and frozen poles. And angry lawyers and litigation. In Spahn v. Richards, Case No. A159495 (November 30, 2021), angry lawyer Jeffrey Spahn sued general contractor Dan Richards claiming that Richards orally agreed to build Spahn’s million dollar plus house for $515,000. Not only did Spahn not recover anything from Richards, he ended up owing Richards $239,171 in attorney’s fees and costs, after he denied a request for admission asking that he admit that there was no oral contract. The Spahn Case In 2017, Spahn filed suit against Richards for breach of oral contract, breach of implied covenant of good faith and fair dealing, and promissory estoppel. According to Spahn, he met Richards in June 2015 and the two reached an agreement whereby Richards agreed to demolish Spahn’s house for $12,500 and build a new one for $515,000. Further according to Spahn, Richards agreed to this “fixed price” “oral contract” in June 2015, and then, on July 1, 2015, Richards “confirmed and agreed that he would perform the construction project” for $515,000 and would complete construction by May 2016. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Fire Consultants Cannot Base Opinions on Speculation

May 20, 2019 — Christopher Konzelmann - The Subrogation Strategist
Larsen v. 401 Main St. Inc., 302 Neb. 454 (2019), involved a fire originating in the basement of the Quart House Pub (Pub) in Plattsmouth, Nebraska that spread to and damaged Plattsmouth Chiropractic Center, Inc., a neighboring business. Fire investigators could not enter the building because the structure was unsafe and demolished. The chiropractic center nevertheless sued the Pub alleging that its failure to maintain and replace basement mechanical equipment caused ignition. To prove its claim, the plaintiff retained a mechanical engineer who reviewed documents and concluded that the fire “originated from a failure of one of the items of mechanical equipment located in the area of the [basement] boiler.” Importantly, however, the consultant could not determine the root cause of the fire, could not eliminate the possibility that the fire originated in a compressor, and could not rule out the building’s electrical service as the ignition source because it was outside his area of expertise. The consultant nevertheless found that the fire most likely would not have occurred if the Pub had regularly serviced and replaced the equipment when needed. Read the court decision
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Reprinted courtesy of Christopher Konzelmann, White and Williams LLP
Mr. Konzelmann may be contacted at konzelmannc@whiteandwilliams.com

A Relatively Small Exception to Fraud and Contract Don’t Mix

April 06, 2016 — Christopher G. Hill – Construction Law Musings
Remember all of my posts about how fraud and contract claims don’t usually play well in litigation? Well, as always with the law, there are exceptions. For instance, a well plead Virginia Consumer Protection Act claim will survive a dismissal challenge. A recent opinion out of the Alexandria division of the U. S. District Court for the Eastern District of Virginia sets out another exception, namely so called fraudulent inducement. In XL Specialty Ins. Co. v. Truland et al, the Court considered the question of whether both a tort and contract claim can coexist in the same lawsuit when the tort claim is based upon the information provided to the plaintiff when that information proves false. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Construction Law Musings
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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