Fairfield Connecticut Building Expert Directory

Compliance Doesn’t Pay: Compliance Evidence Inadmissible in Strict Liability Actions

February 05, 2024 — Kyle Rice - The Subrogation Strategist
In Sullivan v. Werner Co., No. 18 EAP 2022, 2023 Pa. LEXIS 1715 (Dec. 22, 2023), the Supreme Court of Pennsylvania (Supreme Court) clarified that in light of its decision in Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014), evidence that a product complied with industry standards is inadmissible in an action involving strict product liability. In Tincher, the Supreme Court overruled prior case law and reaffirmed that Pennsylvania is a Second Restatement Jurisdiction. As stated in Sullivan, discussing Tincher, under the Restatement (Second) of Torts § 402A, a “seller of a product has a duty to provide a product that is free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’ To prove breach of this duty, a ‘plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a “defective condition.”” Read the court decision
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Reprinted courtesy of Kyle Rice, White and Williams
Mr. Rice may be contacted at ricek@whiteandwilliams.com

Pre-Suit Settlement Offers and Construction Lien Actions

July 21, 2018 — David Adelstein - Florida Construction Legal Updates
It is unfortunate, but in certain matters, a construction lien foreclosure action is not actually driven by the principal amount in dispute. Oh no. Rather, it is driven by attorney’s fees. That’s right. Attorney’s fees. This is true even though Florida applies the significant issues test to determine the prevailing party for purposes of attorney’s fees. However, oftentimes the prospect of attorney’s fees is enough for parties to fear that exposure. There is a 1985 Florida Supreme Court case that I like to cite if applicable, C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So.2d 1177, 1179 (Fla. 1985), that finds, “in order to be a prevailing party entitled to the award of attorney’s fees pursuant to section 713.29 [a construction lien claim], a litigant must have recovered an amount exceeding that which was earlier offered in settlement of the claim.” Accord Sullivan v. Galske, 917 So.2d 412 (Fla. 2d DCA 2006) (explaining that although contractor is receiving a judgment in his favor, he may not be the prevailing party if the homeowner offered to settle prior to the lawsuit for an amount equal to or greater than the award in the judgment). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Coverage for Faulty Workmanship Found In South Dakota

October 11, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The South Dakota Supreme Court found coverage in favor of the general contractor who was sued for alleged faulty workmanship. Owners Ins. Co. v. Tibke Constr., Inc., 2017 S.D. LEXIS 106 (S.D. Aug. 23, 2017). The homeowners hired Tibke Construction Inc. as general contractor to build a new house. Tibke hired Jerry's Excavating Inc. as a subcontractor to prepare the soil and perform excavation work. After the project was completed, the homeowners sued Tibke and Jerry's Excavating for negligent construction and breach of contract. The homeowners alleged that Jerry's Excavating failed to conduct soil-compaction testing before construction. They alleged that the home was built upon highly expansive soils, resulting in damage to the home by "excessive settlement, cracking, structural unsoundness and other damages." The complaint further alleged that damages existed only on portions of the home not worked on by Jerry's Excavating. 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

Caterpillar Forecast Tops Estimates as Construction Recovers

January 28, 2014 — Shruti Date Singh – Bloomberg
Caterpillar Inc. (CAT), the largest maker of mining and construction equipment, forecast earnings and revenue for 2014 that topped analysts’ estimates as the recovery in the U.S. building industry spurs sales of bulldozers and excavators. Sales will be about $56 billion plus or minus 5 percent, the company said in a statement today. The average of 13 estimates compiled by Bloomberg was $55.5 billion. Profit will be $5.85 a share excluding $400 million to $500 million in restructuring costs. That’s more than the $5.77 average estimate. Peoria, Illinois-based Caterpillar also said it approved a $10 billion share buyback plan through 2018 and will repurchase about $1.7 billion in stock in the first quarter that will complete its previous authorization. Read the court decision
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Reprinted courtesy of Shruti Date Singh, Bloomberg
Ms. Singh may be contacted at ssingh28@bloomberg.net

Boston Building Boom Seems Sustainable

November 20, 2013 — CDJ STAFF
According to the analytics and advisory firm PPR, the Boston-area market is “ungodly tight.” So even with all the building planned for the area, it’s likely to make the market normal and not lead to a glut. PPR predicts that the building boom may cool off in 2016, with the next mayoral administration. Some of the condo real estate has been fetching multi-million prices. Sue Hawkes, president and CEO of The Collaborative Cos. Points out that there are about 1,500 units in Boston priced in excess of $2 million. She wonders about future buyers in the luxury market. “Where are all these people going to come from?” Read the court decision
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New York Revises Retainage Requirements for Private Construction Contracts: Overview of the “5% Retainage Law”

January 22, 2024 — Levi W. Barrett, Patrick T. Murray, Skyler L. Santomartino & Mark A. Snyder - Peckar & Abramson, P.C.
On November 17, 2023, the State of New York enacted the “5% Retainage Law.” This legislation effectively limits the amount of retainage that can be held from general contractors and subcontractors to no more than 5%. It applies to many but not all construction contracts. In addition, the new law revises late stage billing requirements, enabling contractors to invoice for retainage at substantial completion. Previously, the parties to a construction contract were free to negotiate any retainage amount, limited only by an unspecified “reasonable amount” that would be released as the parties contractually set forth. Summary The new law amends Sections 756-a and 756-c of the General Business Law (part of Article 35E of the GBL, known as the “Prompt Pay Act”), and applies to private construction contracts “where the aggregate cost of the construction project, including all labor, services, materials and equipment to be furnished, equals or exceeds one hundred fifty thousand dollars.” Reprinted courtesy of Levi W. Barrett, Peckar & Abramson, P.C., Patrick T. Murray, Peckar & Abramson, P.C., Skyler L. Santomartino, Peckar & Abramson, P.C. and Mark A. Snyder, Peckar & Abramson, P.C. Mr. Barrett may be contacted at lbarrett@pecklaw.com Mr. Murray may be contacted at pmurray@pecklaw.com Mr. Santomartino may be contacted at ssantomartino@pecklaw.com Mr. Snyder may be contacted at msnyder@pecklaw.com Read the court decision
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Tips for Drafting Construction Contracts

May 04, 2020 — Stuart Rosen - Construction Executive
When negotiating a construction contract, a contractor and its advisers must first determine the areas of greatest concern. For example, if the contractor believes that the drawings that were prepared by the architect and other design professionals are deficient, the contractor may want to reference those deficiencies in the contract. The contractor should emphasize that it is not responsible for the drawings and to the extent the project schedule is extended to allow the parties to address such issues with the drawings, the contractor would be entitled to additional compensation. This article provides contractors with additional tips, with a broad focus on project delays, for their protection when negotiating and drafting construction contracts, and helps contractors understand the rationale for such tips to better prepare contractors in such negotiations. Contractor’s liability to the owner for delay damages It is imperative that the contract include a waiver of claims for consequential damages. AIA Document A201TM – 2017 includes such a waiver, which provides, in pertinent part, “The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract … This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination in accordance with Article 14.” Reprinted courtesy of Stuart Rosen, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Rosen may be contacted at srosen@proskauer.com

Order for Appraisal Affirmed After Insureds Comply with Post-Loss Obligations

April 15, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Florida Court of Appeal affirmed an order compelling an appraisal because the insureds complied with their post-loss obligations under the policy. State Farm Fla. Ins. Co. v. Cardelles, 2015 Fla. App. LEXIS 2559 (Fla. Ct. App. Feb. 25, 2015). The insureds suffered damage to their home after Hurricane Katrina on August 25, 2005, and again after Hurricane Wilma on October 24, 2005. After each hurricane, State Farm was notified. With the assistance of their public adjuster, the insureds submitted sworn proofs of loss for damages caused by each hurricane. After the deductible, State Farm paid $19,000 for the Hurricane Katrina claim and $13,000 for the Hurricane Wilma claim. The insureds repaired their roof and made minor repairs to their home with the State Farm payment, but claimed the payment was insufficient to fully repair the damage from the two hurricanes. Four years later, the insureds hired a second public adjuster, who submitted a supplemental claim to State Farm for $127,000 in damages. State Farm requested documents and an updated sworn proof of loss. The insureds did not submit any additional documents because they had not made any additional repairs without further payment from State Farm. The insureds did, however, allow State Farm to make a further inspection of the damages. 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

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