Fairfield Connecticut Building Expert Directory

Action Needed: HB24-1230 Spells Trouble for Colorado Construction Industry and its Insurers

March 25, 2024 — David McLain - Higgins, Hopkins, McLain & Roswell, LLC
In an apparent gift to plaintiffs’ construction defect lawyers, Representatives Parenti and Bacon introduced House Bill 24-1230 on February 12, 2024. The bill was assigned to the House Judiciary Committee and is scheduled for hearing on March 6th, during the afternoon session beginning at 1:30 pm. To date, the bill does not have any senate sponsors, perhaps because the senators are more interested in serving their constituents’ needs for attainable housing than in lining the pockets of their plaintiffs’ construction defect attorney friends. According to the bill’s summary, HB 24-1230 contains the following provisions: Current law declares void any express waivers of or limitations on the legal rights or remedies provided by the “Construction Defect Action Reform Act” or the “Colorado Consumer Protection Act.” Sections 1 and 4 make it a violation of the “Colorado Consumer Protection Act” to obtain or attempt to obtain a waiver or limitation that violates the aforementioned current law. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

Hurricane Claim Cannot Survive Anti-Concurrent Causation Clause

May 15, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The court upheld the insurer's denial of coverage for hurricane damage caused by storm surge. Heritage Motorcoach Resort & Marina Condominium Association, Inc v. Axis Ins. Co., 2023 U.S. Dist. LEXIS 58931 (S.D. Ala. April 4, 2023). Heritage operated a resort with a marina, dock and clubhouse. Hurricane Sally caused damage to the property. Heritage submitted a claim to its insurer, Axis. Axis investigated the claim. One investigator reported that the marina structures sustained damage caused by storm tide forces, wave action and debris impact. He opined that the marina structures did not sustain wind damage. When deposed, he testified that there was a combination of vessels and wave action causing damage to the marina. A second investigator found that the storm drove boats and other debris into the marina area causing much of the damage. 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

Court Orders City to Pay for Sewer Backups

March 31, 2014 — Beverley BevenFlorez-CDJ STAFF
According to The Courier-Journal, in August of 2009 “raw sewage” backed “up into several houses during a torrential downpour” in Jeffersonville, Indiana. Now, a “Clark County judge has ordered the city of Jeffersonville to pay nearly $100,000 plus 8 percent annual interest for the city's negligence that led to” the incident. The problems allegedly began after a new lift station and force main, which “previously flowed southward to the Ohio River,” was “re-routed it to Springdale.” The city was eventually “cited by the Indiana Department of Environmental Management for failing to obtain a required local permit for the Springdale upgrade.” The Courier-Journal reported that Jeffersonville “agreed to take several steps to remedy the problem for residents and satisfy the state, which ultimately considered the issue resolved in October 2012.” Since the upgrade was completed, there have not been any further sewer backups, according to the city’s utility director, Len Ashack, as quoted by The Courier-Journal. Read the court decision
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Don’t Waive Too Much In Your Mechanic’s Lien Waiver

December 22, 2019 — Christopher G. Hill - Construction Law Musings
In the past few years, the Virginia General Assembly has, with certain caveats, precluded pre-furnishing waiver of mechanic’s lien rights. While this essentially outlawed the types of mechanic’s lien waiver clauses that pervaded construction contracts in Virginia, the key to the previous sentence is “pre-furnishing.” What the General Assembly left intact were the usual waivers of mechanic’s lien rights typically required to be provided to Owners and others in the payment chain in exchange for payment. These lien waivers come in a few “flavors” from conditional to unconditional, partial to full. Their terms usually include an acknowledgement of receipt of payment (we’ll get to this later), and a statement that the one seeking payment knows of no possible claims by lower tier subcontractors and then waives all mechanic’s lien rights against the property for work performed and included in the request for payment. Often over my years as a Virginia construction attorney, I have noticed that these waivers are often signed without comment or review. They are just part of the process and more often than not are not even an issue for most projects. Of course, if they are an issue they can be a big one, and their terms can come back to bite a claimant that has not properly vetted them. The first potential issue is waiving lien rights while acknowledging receipt prior to actual receipt of the check or wire. Many of the waiver forms that are out there list a payment amount, or possibly simply state that the waiver is in exchange for some small payment, and then state “receipt of which is acknolwedged” or something similar. The issue here is that receipt may not have happened yet because these lien waivers are submitted as part of the payment package in order to get paid in the first place. In short, should you sign the waiver prior to payment, you may have acknowledged a non-event and in the event of non-payment have a written document stating that you waived your claim to a lien for that money. What a court would do with this, I am unsure, but why risk it? My advice, be sure your waiver is contingent on actual clearance of payment as well as receipt. 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

Contractor Wins in Arbitration Only to Lose Before the Superior Court on Section 7031 Claim

June 19, 2023 — Garret Murai - California Construction Law Blog
If you’re a regularly reader of the California Construction Law Blog you’re aware of Business and Professions Code section 7031 which courts have variously described as “harsh[ ],” “draconian” and “unjust,” but, importantly, nevertheless valid. We haven’t seen many cases applying Section 7031 in an arbitration setting, however, until now. In Vascos Excavation Group LLC v. Gold, 87 Cal.App.5th 842 (2022), a contractor who prevailed on a payment claim in arbitration, had its victory snatched from its fingertips by the Superior Court which found that the arbitrator had exceeded her authority because the contractor was subject to Section 7031. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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

Do Construction Contracts and Fraud Mix After All?

October 27, 2016 — Christopher G. Hill – Construction Law Musings
On several occasions here at Construction Law Musings, I’ve discussed the fact that, with a few exceptions, fraud claims and written construction contract based claims do not mix. One of the exceptions to the so called “economic loss rule” that would seem to preclude both fraud and contract claims in the same lawsuit is where fraud is used to induce the contract in the first place. This exception would only apply where an independent duty, wholly outside of the duties created by the contract, is properly plead and proven to the court. For the same reason, namely a separate duty outside of the contract, the Virginia Consumer Protection Act (“VCPA”) may allow for an exception that would allow a cause of action under this statute. Up until recently, the courts of Virginia have used these exceptions sparingly. However, the recent Loudoun County, VA Circuit Court opinion in Interbuild, Inc. v. Sayers (opinion also found at Virginia Lawyers Weekly) may signal a broadening of these exceptions. In the Interbuild case, the Court considered a claim for fraud in the inducement and breach of the VCPA. The basic facts plead by the plaintiffs were that Interbuild induced them into the contract through statements that it had been an established business since 1981, the project did not require a building permit, it had obtained all necessary subcontractor prices and would provide full-time project supervision, the project would be completed within 16 weeks, 4000 PSI concrete would be used for the project and that the project would be located in the agreed-upon area depicted and that they reasonably relied on these representations in deciding to enter into the contract to build their recreational facility. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Washington First State to Require Electric Heat Pumps

May 23, 2022 — James Leggate - Engineering News-Record
A new ruling in Washington state that will require all new commercial buildings to use electric heat pumps is supported by environmentalists but opposed by several construction industry interests. The opposition fears the rule will have a negative impact on the cost and volume of real estate development. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES