FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Mich. AG Says Straits of Mackinac Tunnel Deal Unconstitutional

June 03, 2019 — Jeff Yoders - Engineering News-Record
Michigan Attorney General Dana Nessel (D) has declared unconstitutional a late-2018 law that would create an authority to oversee construction of a key tunnel. The tunnel would house an oil-and-gas pipeline under the Straits of Mackinac. Read the court decision
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Reprinted courtesy of Jeff Yoders, ENR
Mr. Yoders may be contacted at yodersj@enr.com

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Keep Your Construction Claims Alive in Crazy Economic Times

May 25, 2020 — Christopher G. Hill - Construction Law Musings
Coronavirus is dominating the news. Construction in Virginia is facing what is at best an uncertain future and at worst a series of large scale shutdowns due to COVID-19. The number of cases seem to grow almost exponentially on a daily basis while states and the federal government try and patch together a solution. All of this adds up to the possibility that owners and other construction related businesses could shutter and importantly payment streams can slow or dry up. Aside from keeping your contractual terms in mind and meeting the notice deadlines found in your contract, these uncertain economic times require you to be aware of the claims process. Along with whatever claims process is set out in the contract and your run of the mill breach of contract through non-payment type claims, in times like this payment bond and mechanic’s lien claims are a key way to protect your payment interest. The law has differing requirements for each of these unique types of payment claims. Mechanic’s liens are technical and statute based with very picky requirements. The form and content of a memorandum of lien will be strictly read and in most cases form will trump substance. Further, among other requirements best discussed with a Virginia construction lawyer, you must keep in mind two numbers, 90 and 150. The 90 days is the amount of time that you have in which to record a lien. This deadline is generally calculated from the last date of work (or possibly the last day of the last month in which you did work). File after this deadline and your lien will be invalid because the right to record a lien has expired. The 150 days is a look back from the last day of work or the date of lien filing, whichever is sooner in time. The 150 days applies to the work that can be captured in the lien. In other words, it dictates the amount of the lien. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Subcontractors Have a Duty to Clarify Ambiguities in Bid Documents

August 19, 2015 — Craig Martin – Construction Contractor Advisor
Several months ago, I wrote about an escalator subcontractor that sued a general contractor, demanding payment for work completed based on approved shop drawings. The trial court agreed with the subcontractor, but the general contractor appealed. Ten months later, the Court of Appeals reversed, finding that the subcontractor had a duty to bring to the general contractor’s attention major discrepancies or errors they detect in the bid documents.

“The subcontractor failed to disclose ambiguities in the plans and must suffer the peril.”

Construction Difficulties The subcontractor installed 32 inch escalators throughout the project, but the plans called for 40 inch escalators. The general contractor and subcontractor could not reach agreement on how the dispute should be resolved. The subcontractor sued the general to get paid for replacing the escalators and the general sued to subcontractor for concessions it had to pay to the owner. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction

December 20, 2021 — Luke Mecklenburg - Snell & Wilmer Real Estate Litigation Blog
Last year, I posted regarding the Colorado Court of Appeals’ decision in Woodbridge II, which concluded that the “adverse use” element for prescriptive easement claims only requires the claimant to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2. Thus, Woodbridge II concluded, the claimants acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context. Id. That decision was up for review by the Colorado Supreme Court at the time of my prior post. It has now been affirmed, thereby settling an arguable appellate decision split created by Woodbridge II. See Lo Viento Blanco, LLC v. Woodbridge Condo. Ass’n, Inc., 2021 CO 56 (“Woodbridge”). “Like the division below, and for much the same reasons,” the Colorado Supreme Court affirmed in Woodbridge “that under Colorado law, a claimant’s acknowledgement or recognition of the owner’s title during the claimant’s asserted prescriptive period does not interrupt the prescriptive use or undermine the claimant’s adverse use.” Woodbridge, ¶ 2. Writing for a unanimous court, Justice Gabriel’s opinion agreed with the Court of Appeals’ reasoning “that although Woodbridge recognized that it did not hold title, no evidence indicated that it had acted in subordination to the owner’s title.” Id. ¶ at 13. The Court further agreed with Woodbridge II’srejection of Lo Viento’s “permissive use” argument because “the permission offered … was conditional and Woodbridge never agreed to any of the conditions set forth therein.” Id. On that basis, Woodbridge confirmed that “a claimant seeking to establish a prescriptive easement need not show that it asserted exclusive ownership of the property during the prescriptive period,” but only “that its use was without permission or otherwise unauthorized and that it interfered with the owner’s property interests.” Id. at ¶ 23. Read the court decision
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Reprinted courtesy of Luke Mecklenburg, Snell & Wilmer
Mr. Mecklenburg may be contacted at lmecklenburg@swlaw.com

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Congress Passes, President Signs Sweeping Energy Measure In Spend Bill

January 04, 2021 — Corinne Grinapol, Tom Ichniowski, & Pam Radtke Russell - Engineering News-Record
The end-of-the-year spending package passed by Congress on Dec. 21 includes the first major energy legislation to be enacted in more than a decade. Reprinted courtesy of Corinne Grinapol, ENR, Tom Ichniowski, ENR and Pam Radtke Russell, ENR Mr. Ichniowski may be contacted at ichniowskit@enr.com Ms. Russell may be contacted at Russellp@bnpmedia.com Read the full story... Read the court decision
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California’s Skilled and Trained Workforce Requirements: Public Works and AB 3018, What You Need to Know

December 09, 2019 — Brenda Radmacher & Nicholas Krebs - Gordon & Rees Construction Law Blog
Do you have the proper skilled and trained workforce for your construction projects? If you take on public works projects in California, you may not be in compliance with the new changes in the law. To avoid civil penalties or nonpayment and potentially being precluded from future bids on public works contracts, you must critically review your team and proposal prior to accepting an award. Once awarded a public contact requiring a skilled and trained workforce, diligent reporting practices and oversight are required to maintain compliance. Compliance with California’s skilled and trained workforce requirements for contractors, engineers, architects, design professionals, and suppliers competing for public works construction projects in California is mandated through enforcement with the enactment of AB 3018. Signed by Governor Brown in his last legislative session, AB 3018 dramatically increased the penalties for non-compliance with the existing skilled and trained workforce requirements in California. The new penalties include civil fines by the Labor Commissioner up to $10,000 per month per non-compliant contractor, disqualification from bidding on future public works contract, and withholding of payment for delinquent contractors. This update provides information on California’s skilled and trained workforce requirements, identifies key issues on compliance to avoid penalties, and discusses the impact of enforcement on construction professionals’ business practices. Reprinted courtesy of Brenda Radmacher, Gordon & Rees Scully Mansukhani and Nicholas Krebs, Gordon & Rees Scully Mansukhani Ms. Radmacher may be contacted at bradmacher@grsm.com Mr. Krebs may be contacted at nkrebs@grsm.com Read the court decision
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Fourth Circuit Questions EPA 2020 Clean Water Act 401 Certification Rule Tolling Prohibition

August 10, 2021 — Karen C. Bennett - Lewis Brisbois
Last week, in North Carolina Department of Environmental Quality v. Federal Energy Regulatory Commission, the Fourth Circuit Court of Appeals suggested that Congress did not intend for the states, or tribes, to take final action on Clean Water Act (CWA) Section 401 applications within a year of filing. The opinion conflicts with the Environmental Protection Agency's (EPA) 2020 final rule that sought to limit state and tribal certifying authorities’ ability to delay federal projects through various tolling schemes. 85 Fed. Reg. 42210 (Jul. 13, 2020). EPA’s rule, codified in existing regulations, states that the CWA imposes a strict one-year deadline for certification decisions, otherwise certification is waived. However, the Fourth Circuit’s view suggests that this waiver is not triggered in cases where the certifying authority has acted on the application, even if it takes longer than a year to make a final certification decision. The court ultimately decided the case on other grounds, leaving a resolution on the statutory interpretation question for another day. Read the court decision
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Reprinted courtesy of Karen C. Bennett, Lewis Brisbois
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com

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Waiver of Consequential Damages: The Most Important Provision in a Construction Contract

March 08, 2021 — Jeremy P. Brummond - Construction Executive
Construction agreements can be lengthy. They often include terms covering everything from logistics for working on the project site to complicated provisions regarding intellectual property. Many provisions in a construction agreement deal with risk and who is going to pay for damage claims if or when they occur. However, not all risk-shifting provisions are equally important. While provisions that impose obligations on the contractor to maintain confidentiality, indemnify for personal injury or property damage, or correct defective work can expose a contractor to substantial damage claims and are thus important, contractors can significantly control the amount of damages the owner can claim by including a well-drafted waiver of “consequential damages” provision in the agreement. Because the waiver of consequential damages can significantly control the amount of damages for which a contractor is assuming risk and greatly limit the owner’s ability to recoup many damages, it is arguably the most important provision in a construction contract. Therefore, it is essential for contractors and owners to carefully consider the waiver of consequential damages before entering into any construction agreement. Reprinted courtesy of Jeremy P. Brummond, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Brummond may be contacted at jbrummond@lewisrice.com

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