Fairfield Connecticut Building Expert Directory

Agree to Use your “Professional Best"? You may Lose Insurance Coverage! (Law Note)

March 01, 2017 — Melissa Dewey Brumback - Construction Law in North Carolina
Yesterday, I was part of a panel at the NC Bar Association Construction Law Winter Meeting, discussing insurance issues for design professionals. One topic we touched on was how to avoid invalidating your insurance. As most of you know, Errors & Omissions insurance (“E&O” coverage) is meant to provide coverage for mistakes you may make in performing your professional architecture or engineering services. E&O coverage is important to protect you in the event of a lawsuit because, as you know, no set of plans is perfect (nor is perfection the standard of care). Be careful, though. Do not promise to provide a higher standard of care than the “professional standard“. If you are asked to sign a contract that states you will use your “professional best,” “best efforts”, “highest care” or similar, you are being asked to sign something that could cost you your E&O coverage. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett PLLC
Ms. Brumback may be contacted at mbrumback@rl-law.com

Does a No-Damage-for-Delay Clause Also Preclude Acceleration Damages?

January 27, 2020 — Ted R. Gropman & Christine Z. Fan - ConsensusDocs
Construction contracts often include a “no damage for delay” clause that denies a contractor the right to recover delay-related costs and limits the contractor’s remedy to an extension of time for noncontractor-caused delays to a project’s completion date. Depending on the nature of the delay and the jurisdiction where the project is located, the contractual prohibition against delay damages may well be enforceable. This article will explore whether an enforceable no-damage-for-delay clause is also a bar to recovery of “acceleration” damages, i.e., the costs incurred by the contractor in its attempt to overcome delays to the project’s completion date. Courts are split as to whether damages for a contractor’s “acceleration” efforts are distinguishable from “delay” damages such that they may be recovered under an enforceable no-damage-for-delay clause. See, e.g., Siefford v. Hous. Auth. of Humboldt, 223 N.W.2d 816 (Neb. 1974) (disallowing the recovery of acceleration damages under a no-damage-for-delay clause); but see Watson Elec. Constr. Co. v. Winston-Salem, 109 N.C. App. 194 (1993) (allowing the recovery of acceleration damages despite a no-damage-for-delay clause). The scope and effect of a no-damage-for-delay clause depend on the specific laws of the jurisdiction and the factual circumstances involved. There are a few ways for a contractor to circumvent an enforceable no-damage-for-delay clause to recover acceleration damages. First, the contractor may invoke one of the state’s enumerated exceptions to the enforceability of the clause. It is helpful to keep in mind that most jurisdictions strictly construe a no-damage-for-delay clause to limit its application. This means that, regardless of delay or acceleration, courts will nonetheless permit the contractor to recover damages if the delay is, for example, of a kind not contemplated by the parties, due to an unreasonable delay, or a result of the owner’s fraud, bad faith, gross negligence, active interference or abandonment of the contract. See Tricon Kent Co. v. Lafarge N. Am., Inc., 186 P.3d 155, 160 (Colo. App. 2008); United States Steel Corp. v. Mo. P. R. Co., 668 F.2d 435, 438 (8th Cir. 1982); Peter Kiewit Sons’ Co. v. Iowa S. Utils. Co., 355 F. Supp. 376, 396 (S.D. Iowa 1973). Reprinted courtesy of Ted R. Gropman, Pepper Hamilton LLP and Christine Z. Fan, Pepper Hamilton LLP Mr. Gropman may be contacted at gropmant@pepperlaw.com Read the court decision
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KB Home Names New President of its D.C. Metro Division

November 05, 2014 — Beverley BevenFlorez-CDJ STAFF
The Washington Business Journal reported that Jon Adler has been named president of Los Angeles-based KB Home's D.C. Metro division. Adler "most recently a partner with The Georgelas Group in McLean, and served as president and CEO of its Bryton Homes division. Prior to that, he held executive roles at Reston-based NVR Inc." KB Home, since 1957, "has built more than half of a million homes," according to the Washington Business Journal. "It currently builds in 10 states." Read the court decision
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School District Settles Over Defective Athletic Field

December 11, 2013 — CDJ STAFF
The Hillsboro, Oregon School District has settled a lawsuit with Mahlum Architects of Portland, one of the four companies sued by the school district over problems with a soccer field. The total lawsuit was for $1.7 million. The architects have settled for $25,000. The manufacturer of Astro Turf also settled with the school for an as-yet undisclosed amount. What the school describes as the “primary defendants” have yet to settle. The school had to close the soccer field when drainage problems lead to large holes in the playing field. Read the court decision
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PCL Sues Big Bank for $30M in Claimed NJ Mall Unpaid Work

July 16, 2023 — Mary B. Powers - Engineering News-Record
Denver-based PCL Construction Services sued JPMorgan Chase Bank in federal court earlier this month for $30 million in claimed unpaid work and interest related to construction of a $5-billion northern New Jersey mall and entertainment center that also faces other financial challenges since its COVID-19-impacted opening in 2019. Reprinted courtesy of Mary B. Powers, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Comply with your Insurance Policy's Conditions Precedent (Post-Loss Obligations)

May 31, 2021 — David Adelstein - Florida Construction Legal Updates
I am of the opinion that if your property insurer requests a sworn proof of loss, furnish one with the assistance of counsel (preferably). Ignoring the insurer’s request or refusing to comply with insurer’s request is NOT value-added; it is simply placing you at a disadvantage based on the insurer’s argument that you, as the insured, materially breached the policy. I generally find no value having to confront this expected argument. Instead, I find value making an effort to comply with post-loss obligations including the insurer’s request to submit a sworn proof of loss. Working with counsel can help you comply with post-loss obligations (conditions precedent) while not weakening the value or merits of your claim. By way of example, in Edwards v. Safepoint Ins. Co., 46 Fla. L. Weekly D1086a (Fla. 4th DCA 2021), the insured did not provide its property insurer with the requested sworn proof of loss. The insurer moved for summary judgment that the insured’s failure to submit the sworn proof of loss was a material breach of the policy that rendered the policy ineffective. The trial court agreed and granted summary judgment. The Fourth District Court of Appeal affirmed explaining “[a] total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.” Edwards, supra, quoting Haiman v. Federal Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001). 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

Ahlers Cressman & Sleight PLLC Recognized Among The Top 50 Construction Law Firms by Construction Executive

June 20, 2022 — Scott R. Sleight - Ahlers Cressman & Sleight PLLC
ACS is proud to announce it has once again been ranked among The Top 50 Construction Law FirmsTM in the Construction Executive 2022 rankings. ACS is the highest ranked law firm in the US practicing out of a single office. ACS specializes in delivering the highest quality construction law services. ACS prides itself on providing excellent services to clients in matters relating to contract documents, construction dispute resolution, and government contracts. If resolution efforts fail, ACS has the experience and ability to represent clients in high-stakes litigation. Since 2018, ACS has obtained three significant jury verdicts in favor of its general contractor clients, including awards of prevailing party attorneys’ fees and costs and expenses. Founded in 2007, ACS’ vast knowledge and industry experience led our lawyers to hold many leadership positions. Three of our lawyers are past chairs of the Washington State Bar Association’s Construction Law Section, five of our lawyers have served as the Chair of the Associated General Contractors of Washington’s Legal Affairs Committee, and many of our lawyers are recognized as Super Lawyers and Rising Stars in Super Lawyers Magazine/Thomson Reuters. We have represented construction firms before the Supreme Court and the Court of Appeals in numerous precedent-setting cases, and have testified before the Legislature. ACS’ commitment to the construction industry shows in our results. Read the court decision
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Reprinted courtesy of Scott R. Sleight, Ahlers Cressman & Sleight PLLC
Mr. Sleight may be contacted at scott.sleight@acslawyers.com

The Woodland Hills Office Secures a Total Defense Award on Behalf of their High-End Custom Home Builder Client!

June 04, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Partner Daniel Crespo and Associate Theresa Mallen secured a total defense award in arbitration. Our client is a high-end custom home builder with a decades-long flawless record of museum quality construction. Our client was accused of performing substandard construction and the homeowners asserted a multiple million-dollar cost of repair. We took a zero-liability position and argued that the alleged defects were not defects at all but were rather mere reflections of an incomplete project. In sum, our client was forced to terminate the contract and cease construction due to the homeowners’ failure to make progress payments as they became due. The arbitration endured 16 days of testimony scattered over the course of 7 months. Ultimately, the arbitrator ruled that there were no construction defects at the project and that the homeowners “shall take nothing.” The arbitrator also ruled in favor of our client on its affirmative claim for monies owed by the homeowners’ breach of contract plus interest. A total victory for our client. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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