FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

What You Don’t Know About Construction Law Can Hurt Your Engineering Firm (Law Note)

January 28, 2019 — Melissa Dewey Brumback - Construction Law in North Carolina
Welcome to a new year! By now, you’ve eaten the last of the Christmas cookies, opened all of your presents, and rung in 2019. Back to business, right? The new year is always a good time to remind your employees, and yourself, that there are no shortcuts on the success train. Sure, you can sometimes skate by for awhile, but karma has a way of catching up with you. One thing to keep in mind is that if you practice in multiple states: be sure you are well aware of the rules and regulations concerning your license in each state. Each state does things a little differently, and what may be perfectly acceptable in one state may not be in another state. 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

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Expert Can be Questioned on a Construction Standard, Even if Not Relied Upon

August 07, 2022 — Garret Murai - California Construction Law Blog
It’s not uncommon in construction defect litigation for each side retain one or more experts to give their opinion as to whether something was constructed in accordance with the standard of care. This usually results in what we legal practitioners call a “battle of the experts.” The California Code of Civil Procedure and Evidence Code include specific provisions applicable to experts including when they must be disclosed, when and how they can be deposed, and what opinions they can render. When attempting to challenge an expert it is not uncommon for one side to argue that the other side’s expert did not consider a certain fact or certain standard in reaching his or her opinion, therefore, allowing that party to argue at trial that the expert’s opinion is somehow flawed. However, there are also certain limitations, including a limitation restricting a party from cross-examining an expert on any scientific, technical, or professional test, treatise, journal or similar publication if the witness did not rely on such publication in arriving at or forming his or her opinion. The next case, Paige v. Safeway, Inc. (2021) 74 Cal.App.5th 1108, involved a case of first impression: Namely, whether an expert who did not rely on a publication in forming his or her opinion can nevertheless be questioned on a publication (in this case an ASTM standard) because the publication is a “reliable authority.” 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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CISA Clarifies – Construction is Part of Critical Infrastructure Activities

April 20, 2020 — Brenda Radmacher & Ernest Isola - Gordon & Rees Construction Law Blog
After ongoing confusion by many over whether construction should be considered part of the “essential business,” during the COVID-19 pandemic, the Cybersecurity and Infrastructure Security Agency (CISA) issued an updated Coronavirus Guidance for America on March 28, 2020 to clarify construction’s critical role in supporting essential infrastructure. CISA’s initial advisory list referenced construction in regard to some areas such as energy and wastewater treatment, but it was unclear as to the whole of the construction industry. CISA’s update clarified that construction activities are included in its list of essential critical infrastructure workers. This new federal guidance should remove the ambiguity that led to varying responses by state and local officials halting some construction. The guidance clarifies that construction and related activities – including the manufacture and supply/delivery of supplies and equipment, permitting, safety, and inspections of projects – are covered as part of the critical infrastructure and economic activities. The ongoing challenge will be for construction activities to proceed in a way that protects workers and the general public from the spread of coronavirus. However, contractors are always resourceful and have been implementing safety measures effectively on projects with an unwavering commitment to safety and are ready to meet this challenge. In addition to following the guidance from the CDC, we recommend that contractors implement a comprehensive safety program for their employees as well as for all parties that come onto the jobsite. It is critical that contractors have clear a clear plan for communications with their teams to ensure compliance with the CDC recommendations. This should include what has recently become standard protocol or social distancing, not hosting large group meetings and conducting meetings online or via conference call, maintaining a six-foot distance between people, discouraging hand-shaking or other contact, not sharing tools, and sanitizing reusable PPE. Contractors also should also be sure to place safety posters about “How to Protect Yourself” where they can be readily seen and encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance of a jobsite. We also recommend heightened site security including interviewing anyone coming to the jobsite. Reprinted courtesy of Brenda Radmacher, Gordon & Rees and Ernest Isola, Gordon & Rees Ms. Radmacher may be contacted at bradmacher@grsm.com Mr. Isola may be contacted at eisola@grsm.com Read the court decision
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Preserving your Rights to Secure Payment on Construction Projects (with Examples)

March 22, 2017 — David Adelstein – Florida Construction Legal Updates
All participants across the construction industry should understand what efforts they should take to maximize and collateralize payment. No one wants to work for free and, certainly, no one in the construction industry wants to work without ensuring there is some mechanism to recover payment in the event they remain unpaid. Being proactive and knowledgeable can go a long way when it comes to recovering your money. Your Contract – It starts with the contract. You should understand those risks that are allocated to you and those that are allocated to another party. And, you should understand the contractual mechanism to resolve claims and disputes and whether your contract has a prevailing party attorney’s fees provision. In addition to contractual rights, there are tools for you to maximize your collection efforts. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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North Dakota Universities Crumble as Oil Cash Pours In

August 27, 2014 — Jennifer Oldham – Bloomberg
North Dakota is struggling to finance deteriorating public universities even as it experiences the biggest energy boom in its history, raising concern that less prosperous states will face more serious funding challenges. Students returning this week will attend classes in buildings without adequate ventilation or fire detection systems and in historic landmarks with buckling foundations. A space crunch is making it difficult for researchers to obtain grants and putting the accreditation of several programs at risk, administrators say. “It’s embarrassing,” said North Dakota state Representative Kathy Hawken, a Republican from Fargo who sits on the higher education funding and budget committees. “We have a divided legislature on higher ed: Some think we put too much money into it and some think we don’t put enough. Buildings aren’t people, so we don’t put dollars there.” Read the court decision
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Reprinted courtesy of Jennifer Oldham, Bloomberg
Ms. Oldham may be contacted at joldham1@bloomberg.net

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Is Your Contract “Mission Essential?” Recovering Costs for Performing During a Force Majeure Event Under Federal Regulations

May 10, 2022 — Joneis M. Phan & Sarah K. Bloom - ConsensusDocs
Federal contractors have faced unprecedented challenges performing during the COVID-19 pandemic. Additional costs have included delays and inefficiencies, site closures, quarantines, unavailability of supplies and materials, and full shutdowns of subcontractor operations. For contractors performing under fixed price contracts, the cost impact of COVID-19 was likely severe. The Federal Acquisition Regulation (“FAR”) recognizes “epidemics” as a force majeure event that may excuse non-performance. Many federal contracts include some version of the Default clause, which prevents the government from terminating a contractor for default due to impacts of force majeure events that are beyond a contractor’s control, such as an epidemic. See, e.g., FAR 52.249-10. See also Pernix Serka Joint Venture v. Dep’t of State, CBCA No. 5683 (Apr. 20. 2020). The Default clause, however, operates as a shield from liability, not a sword authorizing recovery. Contractors are now left wondering whether any avenue exists to recover additional costs incurred after performing in the face of the COVID-19 pandemic. In response to a likely influx of claims and requests for equitable adjustment due to COVID-19 impacts, the federal government largely took the position that contractors were entitled to extensions of time, but not to additional costs. This article explores the avenues that may be available for contractors to recover costs for performing during a force majeure event that would otherwise be non-compensable. Reprinted courtesy of Joneis M. Phan, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs and Sarah K. Bloom, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs). Mr. Phan may be contacted at jphan@watttieder.com Ms. Bloom may be contacted at sbloom@watttieder.com Read the court decision
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Washington Court of Appeals Divisions Clash Over Interpretations of the Statute of Repose

August 07, 2023 — Masaki Yamada & Ryanne Mathisen - Ahlers Cressman & Sleight PLLC
The construction statute of repose under RCW 4.16.310 bars any claims arising from construction, design, or engineering of any improvement upon real property that has not accrued within six years after substantial completion or termination of services, whichever is later, even if the injury has not yet occurred. On June 20, 2023, Division One of the Washington Court of Appeals (Div. I) published its decision in Welch v. Air & Liquid Systems severely criticizing and rejecting the statute of repose reasoning contained in Maxwell v. Atlantic Richfield Co., 15 Wn. App. 2d 569, 476 P.3d 645 (2020), a Division Two (Div. II) opinion. More than a mere difference of opinion, the courts in Welch and Maxwell reached different results as to whether claims asserted against Brand Insulations, Inc. were barred by the statute of repose despite involving (i) the same procedural posture, both appeals from summary judgment decisions; (ii) the same facility, Atlantic Richfield Corporation’s (ARCO) petroleum refinery at Cherry Point in Ferndale; (iii) the same activity of installation of asbestos laden insulation on pipes; (iv) the same type of injury, mesothelioma; and (v) application of the same test set forth in Condit v. Lewis Refrigeration Co., 101 Wn.2d 106, 676 P.2d 466 (1984). Reprinted courtesy of Masaki Yamada, Ahlers Cressman & Sleight PLLC and Ryanne Mathisen, Ahlers Cressman & Sleight PLLC Mr. Yamada may be contacted at masaki.yamada@acslawyers.com Ms. Mathisen may be contacted at ryanne.mathisen@acslawyers.com Read the court decision
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Insurer's Judgment on the Pleadings Based Upon Expected Injury Exclusion Reversed

October 30, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The appellate court reversed the trial court's granting of a judgment on the pleadings based upon the expected injury exclusion in a homeowner's policy. Allstate Indemn. Co. v. Contreras, 2018 Ill. App. LEXIS 170964 (Ill. Ct. App. July 20, 2018). Alejandra Contreras owned Jasmine's Day Care. Her husband, Adan Contreras, was not an employee of the Day Care. Alejandra and Adan had a homeowner's policy which provided day care liability coverage through an endorsement. 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

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