FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

New Mandatory Bond Notice Forms in Florida

December 16, 2019 — Brian A. Wolf & Miles D. Jolley - Smith Currie
Subcontractors and suppliers must now use new, statutory notice of nonpayment forms to preserve payment bond claims, and sign each notice of nonpayment under oath. The State of Florida instituted changes to the statutes governing public-project payment bonds (section 255.05, Florida Statutes) and private-project payment bonds (section 713.23, Florida Statutes). The changes went into effect on October 1, 2019. Previously, notices of nonpayment were not required to be signed under oath. Now, the law requires the use of specific statutory notice forms that claimants must sign under oath. Previously, there were no statutory penalties for claimants who exaggerated the amount claimed against a payment bond. Now there are specific statutory penalties against a claimant who willfully or negligently signs a notice of nonpayment that includes a claim for work not performed or materials not furnished, or who is guilty of signing a notice prepared with willful or gross negligence. Public construction payment bonds are governed by section 255.05, Florida Statues, also known as Florida’s Little Miller Act. This statute requires all payment bond claimants who don’t have a direct contract with the general contractor to serve both the bonding company and the general contractor with a notice of nonpayment no later than 90 days after their last date of work or last delivery of materials. The amended statute now requires that the claimant use the statutory notice form and sign the form under oath. If the claimant includes exaggerated claims, or intentionally makes a claim for work or materials not provided, or otherwise prepares a notice with gross negligence, then the bonding company and the general contractor will be able to use such as a complete defense to an otherwise valid bond claim. Reprinted courtesy of Brian A. Wolf, Smith Currie and Miles D. Jolley, Smith Currie Mr. Wolf may be contacted at bawolf@smithcurrie.com Mr. Jolley may be contacted at mdjolley@smithcurrie.com Read the court decision
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Ill-fated Complaint Fails to State Claims Against Broker and FEMA

September 10, 2014 — Tred R. Eyerly – Insurance Law Hawaii
A complaint lodged against the insureds' broker and FEMA was dismissed for failure to state a claim. Lopez v. State Farm Gen. Ins. Co., 2014 U.S. Dist. LEXIS 109803 (E.D. La. Aug. 8, 2014). The insureds held a Standard Flood Insurance Policy (SFIP) issued by FEMA, but sold by the broker. The insureds alleged that their property was totally destroyed by Hurricane Isaac. FEMA paid the insureds $234,513.02 for damage to their dwelling and $80,566.17 for its contents, for a total of $315,079.19. This was $34,920.81 below the policy limits. The insureds sued, claiming FEMA negligently miscalculated their damages, misvalued their property, and improperly adjusted their claim. The insureds also alleged that the broker failed to properly advise them regarding the nature of their coverage, the true value of their property, or to purchase the correct amount of insurance on their behalf. The negligent procurement claim against the broker failed because the insureds did not allege any specific facts tending to establish that the broker failed to use reasonable diligence in procuring their insurance. Likewise, the negligent misrepresentation claim against the broker was dismissed. Insurance agents had a duty to supply their customers with correct information, and they could be liable for negligent misrepresentation if they provided incorrect information and an insured was damaged. Here, the insureds did not allege a breach of the duty to supply correct information. 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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A Teaming Agreement is Still a Contract (or, Be Careful with Agreements to Agree)

November 18, 2019 — Christopher G. Hill - Construction Law Musings
I have discussed teaming agreements in this past here at Construction Law Musings. These agreements are most typically where one of two entities meets a contracting requirement but may not have the capacity to fulfill a contract on its own so brings in another entity to assist. However, these agreements are contracts and are treated as such here in Virginia with all of the law of contracts behind them. One illustrative case occurred here in Virginia and was decided by the Virginia Supreme Court. That case is CGI Fed. Inc. v. FCi Fed. Inc. While this is not strictly a “construction” case, it helps lay out some of the pitfalls of teaming agreements in general. In this case, the parties entered into a fairly typical small business (FCI) Big Business (CGI) teaming arrangement for the processing of visas for the State Department. The parties negotiated the workshare percentage (read payment percentage) should FCI get the work and the teaming agreement set out a framework for the negotiation of a subcontract between FCI, the proposed general contractor, and CGI, the proposed subcontractor. After a while working together, FCI submitted a proposal to the State Department and as part of the negotiations of this proposal, the work percentage for CGI was lowered in exchange for some management positions for CGI relative to the work by amendment to the original teaming agreement. However, one day later FCI submitted a proposal to the State Department that not only didn’t include the management positions, but further lowered CGI’s workshare. 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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Liquidated Damages Clause Not Enforced

October 02, 2023 — David R. Cook Jr. - Autry, Hall & Cook, LLP
A liquidated-damages clause was not enforced in a recent case before the Georgia Court of Appeals. The clause did not contain standard provisions that would normally allow a trial court to enforce the clause as written. As a result, the trial court looked beyond the contract to determine whether the City satisfied the requirements for enforcement of the liquidated-damages clause. Below are the relevant excerpts. City of Brookhaven v. Multiplex, LLC, A23A0843, 2023 WL 4779591 (Ga. Ct. App. July 27, 2023) Here, the Contract provides for “Liquidated Damages at the rate of $1,000.00 per calendar day” in the last paragraph of the Scope of Work addendum. The Contract lacks, however, any language indicating that the liquidated damages were not intended to be a penalty. See Fuqua Const. Co. v. Pillar Dev., Inc., 293 Ga. App. 462, 466, 667 S.E.2d 633 (2008) (rejecting use of parol evidence where the parties “explicitly agreed” in “unambiguous contract language” that the liquidated damages were not a penalty). Absent such language, the court can look to parol evidence in the record to determine the effect the provision was intended to have. See J.P. Carey Enterprises, 361 Ga. App. at 391-392 (1) (b), 864 S.E.2d 588 (looking to “extrinsic evidence” such as emails, documents, and deposition testimony to determine whether the damages provision at issue was a penalty); see also Gwinnett Clinic, Ltd. v. Boaten, 340 Ga. App. 598, 602-603, 798 S.E.2d 110 (2017) (“Shah’s testimony also suggested that one purpose of the liquidated damages provision was to deter employees from breaching the agreement”). Read the court decision
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Reprinted courtesy of David R. Cook Jr., Autry, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

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Empire State Building Owners Sue Photographer for Topless Photo Shoot

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
USA Today reports that the owners of New York’s Empire State Building are suing photographer Allen Henson for taking pictures of a topless woman on the sky scraper’s observation deck. “The owners claim Henson damaged the building's reputation as a safe, family-friendly attraction when he took photos of the model in August,” according to USA Today. Henson allegedly did not ask the owners for permission prior to the shoot. Henson retorted that he took the photos when children were not present, and the pictures do not have any “commercial value; he just posted them on social media.” Read the court decision
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Three Kahana Feld Attorneys Selected to 2024 NY Metro Super Lawyers Lists

October 28, 2024 — Linda Carter - Kahana Feld
Kahana Feld is pleased to announce that Tim Capowski was selected to the 2024 NY Metro Super Lawyers list, and Christopher Theobalt and Sofya Uvaydov were selected to the 2024 NY Metro Rising Stars list. All three attorneys were recognized in the Appellate practice area. Tim Capowski is a partner at Kahana Feld and chair of the firm’s National Appellate Litigation & Consulting Group. He has spent the better part of three decades at the forefront of the insurance defense bar. Tim has litigated hundreds of appeals and thousands of motions in state and federal and appellate courts throughout New York and around the country. He handles a variety of complex litigation including catastrophic property and casualty claims, construction defect, professional liability, labor and employment law, mass torts, insurance coverage, and more. Read the court decision
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Reprinted courtesy of Linda Carter, Kahana Feld
Ms. Carter may be contacted at lcarter@kahanafeld.com

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Liability Coverage For Construction Claims May Turn On Narrow Factual Distinctions

March 25, 2024 — Scott S. Thomas - Payne & Fears
In a recent trial court decision, a Montana federal court reminds us how fragile insurance coverage can be for construction-related insurance claims. Specifically, this case illustrates how seemingly small factual nuances can make or break coverage. The case turned on the application of policy provisions familiar to all who deal with these kinds of cases. (See Nautilus Ins. Co. v. Farrens, No. CV 22-193-M-DWM, 2024 WL 885109 (D. Mont. Mar. 1, 2024)) First, the court rebuffed the insurer’s argument that damage resulting from defective workmanship (in this case, the flawed design and installation of an elaborate floating-floor pool system) is not “caused by an occurrence.” The court correctly applied the test followed by most states: if either act causing injury is unintentional or the resulting injury is unexpected or unintended, the “occurrence” requirement is met. Fortunately, the court distinguished sloppy language from earlier Montana federal court decisions suggesting otherwise. Read the court decision
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Reprinted courtesy of Scott S. Thomas, Payne & Fears
Mr. Thomas may be contacted at sst@paynefears.com

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Connecticut Gets Medieval All Over Construction Defects

February 10, 2012 — CDJ STAFF

The Hartford Courant reports that Connecticut is trying a very old tactic in a construction defect suit. The law library building at the University of Connecticut suffered from leaks which have now been repaired. The state waited twelve years after was complete to file lawsuit, despite that Connecticut has a six-year statute of limitations on construction defect claims. Connecticut claims that the statute of limitations does apply to the state.



The state is arguing that a legal principle from the thirteenth century allows it to go along with its suit. As befits a medieval part of common law, the principle is called “nullum tempus occurrit regi,” or “time does not run against the king.” In 1874, the American Law Register said that nullum tempus occurrit reipublicae “has been adopted in every one of the United States” and “is now firmly established law.”



In the case of Connecticut, Connecticut Solicitor General Gregory D’Auria said that “the statute of limitations does not apply to the state.” He also noted that “the state did not ‘wait’ to file the lawsuit. The lawsuit was filed only after all other options and remedies were exhausted.”



Connecticut also argued that “nullus tempus occurrit regi” applied in another construction defect case at the York Correctional Institution. The judge in that case ruled in December 2008 to let the case proceed. But in the library case, Judge William T. Cremins ruled in February 2009 that the statute of limitations should apply to the state as well. Both cases have been appealed, with the library case moving more quickly toward the Connecticut Supreme Court.

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