FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

U.S. Homeowners Are Lingering Longer, and the Wait Is Paying Off

July 28, 2018 — Jeremy Hill - Bloomberg
Homeowners in the U.S. are holding on to their houses longer than they have in at least 18 years, and when they do sell, they’re reaping gains that haven’t been seen since before the housing crisis. Those who sold in the second quarter did so after owning their homes for an average of 8.09 years, the longest stretch since Attom Data Solutions started tracking the statistic in 2000. The wait appears to be paying off: Second-quarter sellers recorded gains averaging $58,000 -- the most since the third quarter of 2007. Read the court decision
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Reprinted courtesy of Jeremy Hill, Bloomberg

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Whose Lease Is It Anyway: Physical Occupancy Not Required in Landlord-Tenant Dispute

February 07, 2018 — Afua Akoto – SDV Case Alert
In September 2017, a Texas Federal district judge ruled that that Personal and Advertising Injury coverage in a CGL policy did not require physical occupancy in a landlord-tenant dispute. In the underlying lawsuit, restaurant owner Ziggy Gruber alleged that John Dunn, the landlord of a Houston shopping center, wrongfully interfered with his right of occupancy at the shopping center by failing to complete the negotiation of a lease and preventing his occupancy of the space. Gruber further alleged that he had acquired a direct interest in the premises and became a rightful tenant but as a result of Dunn’s interference, he was never able to open his restaurant. Read the court decision
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Reprinted courtesy of Afua Akoto, Saxe Doernberger & Vita, P.C.
Ms. Akoto may be contacted at asa@sdvlaw.com

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Virginia Tech Has Its Own Construction Boom

May 10, 2013 — CDJ STAFF
The last few years has been a tough time for the construction industry, unless you’re in the proximity to the campus of Virginia Tech. Since 1999, the school has seen more than $1 billion in construction projects. Charles Steger, the president of the university says that “we have no intention of slowing down.” Steger views some of the construction as vital to the school’s mission, noting that at Davidson Hall, which contains chemistry laboratories, “the wiring and other facilities were almost a health hazard.” The building is undergoing a $31 million renovation. In order to keep the campus walkable, parking lots are being replaced by parking garages. Four dormitory buildings will be demolished and replaced by new facilities. Funds for the development have come from a mix of student fees, donations, research revenues, bond issues, and taxpayer revenues. Read the court decision
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No Rest for the Weary: Project Completion Is the Beginning of Litigation

June 18, 2019 — Albert Li & Bob Fitzsimmons - Construction Executive
In today’s environment, most construction projects end up in some form of litigation. Construction is full-time employment for lawyers – from contract negotiation to project management, lien and payment issues. Years after project completion, a company still can face construction defect litigation and be served with a Notice of Opportunity to Repair, which in most states is now codified into statute. This is the beginning of what most likely will become a lawsuit, involving many of the subcontractors. Watch Out for the Construction Contract Blame Game The first phase of post construction litigation involves the review of contract and insurance policy language in an attempt to transfer responsibility in the litigation to other parties. Before construction began, contract negotiation focused on budget and timeline. In the post-construction phase, two less noticed provisions of the contract are critical – indemnity and insurance. Reprinted courtesy of Albert Li & Bob Fitzsimmons, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Fitzsimmons may be contacted at rfitzsimmons@rumberger.com Mr. Li may be contacted at ali@rumberger.com Read the court decision
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When Is Mandatory Arbitration Not Mandatory?

August 19, 2015 — Christopher G. Hill – Construction Law Musings
I have discussed my views on mandatory mediation in construction contracts at other places here at Musings and also discussed how the contract is king here in Virginia. A recent Charlottesville, Virginia Circuit Court case combined these two concepts to allow a subcontractor to proceed straight to litigation despite various ADR provisions in the contract between it and the general contractor. In ProBuild v. DPR & Continental Casualty, the Court looked at a series of ADR steps that were to be followed in the contract between the parties in order to allow DPR, the general contractor to require arbitration as opposed to litigation. The Court considered the surety’s motion to stay the litigation against it pending arbitration between ProBuild and DPR. In ProBuild, the Court looked at a contractual provision that provided certain steps to be followed in the event of a dispute, starting with a notice of dispute, followed by negotiation, followed by mediation should the disputing party request it, and in the event that mediation was tried and failed, the disputing party or general contractor could require arbitration. The Court determined that ProBuild, the subcontractor, was the disputing party under the contract, had pursued unsuccessful formal negotiations and that neither ProBuild nor DPR requested mediation. The Court then held that because unsuccessful mediation was a prerequisite to required arbitration and because mediation was never pursued, the mandatory arbitration clause did not apply. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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California Appeals Court Remands Fine in Late Completion Case

November 18, 2011 — CDJ STAFF

The California Court of Appeals in Stanislaus County has reversed the decision of the lower court in Greg Opinski Construction Inc. v. City of Oakdale. The earlier court had awarded the city of judgment of $54,000 for late completion, $3,266 for repair of construction defects and interest, and $97,775 in attorneys’ fees. The late completion of the project was due to actions by the City of Oakdale, however, the court rejected Opinski’s argument that the California Supreme Court decision in Kiewit did not allow this, as his contract with the city established a procedure for claiming extensions.

The appeals court noted that the Kiewit decision has been “criticized as an unwarranted interference in the power of contracting parties to shift the risk of delays caused by one party onto the other party by forcing the second party to give the first notice of any intention to claim an extension of time based on delays caused by first.” They cited Sweet, a professor at Boalt Hall, UC Berkeley’s law school, that Kiewit “gutted” the “provision that conditions the contractor’s right to claim an extension of time for delays beyond his control.”

Further changes in California law in response to the Kiewit decision lead to the current situation which the court characterized as “if the contractor wished to claim it needed an extension of time because of delays caused by the city, the contractor was required to obtain a written change order by mutual consent or submit a claim in writing requesting a formal decision by the engineer.”

Opinski also argued that the lower court misinterpreted the contract. The Appeals court replied that “Opinski is mistaken.” He cited parts of the contract regarding the increase of time, but the court rejected these, noting that “an inability to agree is not the same as an express rejection.”

The court also rejects Opinski’s appeal that “the evidence the project was complete earlier than September 30, 2005, is weightier than the evidence to the contrary,” which they describe as “not a winning appellate argument.” The court points out that the role of an appeals court is not to reweigh the evidence, but to determine “whether the record contains substantial evidence in support of the judgment.”

The court did side with Opinski on one question of the escrow account. They rejected most of his arguments, repeating the line “Opinski is mistaken” several times. They decided that he was mistaken on the timing of the setoff decision and on whether the city was the prevailing party. However, the appeals court did find that Opinski was not liable for interest on the judgment.

The appeals court rejected the awarding of prejudgment interest to the city as the funds from which the judgment was drawn was held in an escrow account. The court noted that the city had access to the funds and could “access the funds when it determined that Opinski had breached the contract.” The appeals court noted that the judgment exhausted the escrow balance and remanded the case to the lower court to determine the amount own to Opinski.

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Court Slams the Privette Door on Independent Contractor’s Bodily Injury Claim

May 06, 2019 — Brett G. Moore, Michael C. Parme, Lindsey N. Ursua & Lawrence S. Zucker II - Haight Brown & Bonesteel LLP
In Johnson v. The Raytheon Company, Inc., Case No. B281411 (2019) WL 1090217, plaintiff Laurence Johnson (Johnson) was a maintenance engineer employed by an independent contractor that provided control room staff to defendant Raytheon Company, Inc. (“Raytheon”). Johnson was monitoring the computers in the control room when he received low water level alarms pertaining to the water cooling towers. Johnson went to the cooling tower wall in order to look over the wall and verify the water level. Johnson saw the upper half of an extension ladder leaning against the cooling tower’s wall. The ladder had a warning sign which said, “CAUTION” and “THIS LADDER SECTION IS NOT DESIGNED FOR SEPARATE USE.” Despite these warnings, Johnson used the ladder. As he was climbing the ladder it slid out causing him to fall and suffer injuries. Johnson sued Raytheon, the hirer of the independent contractor, arguing the ladder, among other things, was unsafe and lead to Johnson’s injuries. Johnson believed that Raytheon’s course of conduct of leaving a platform ladder (as opposed to the extension ladder) at the wall constituted an implied agreement to always have one present, on which the independent contractor’s employees relied. Johnson further argued that Raytheon was negligent in providing a dangerous extension ladder, as opposed to a platform ladder, at the wall on the night of the accident. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Brett G. Moore, Michael C. Parme, Lindsey N. Ursua and Lawrence S. Zucker II Mr. Moore may be contacted at bmoore@hbblaw.com Mr. Parme may be contacted at mparme@hbblaw.com Ms. Lindsey may be contacted at lursua@hbblaw.com Mr. Lawrence may be contacted at lzucker@hbblaw.com Read the court decision
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Awarding Insurer Summary Judgment Before Discovery Completed Reversed

August 29, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The Florida Court of Appeal reversed the trial court's awarding of summary judgment to the insurer because discovery was not completed. Sacramento v. Citizens Prop. Ins. Corp., 2022 Fla. App. LEXIS 4292 (Fla. Ct. App. June 22, 2022). The insured filed a claim under the all-risk policy for water damage caused by Hurricane Irma. Citizens denied the claim based upon a policy exclusion. The insured filed suit on March 8, 2019. On April 24, 2020, Citizens moved for summary judgment. A hearing was set for August 10, 2020. Citizens filed a notice for a deposition of a Mitigation Company representative scheduled to occur on December 1, 2020. On August 14, 2020, the insured filed an opposition to the summary judgment motion arguing that it would be premature to grant the motion because there were still pending depositions. The insured specifically requested that the trial court not enter summary judgment until the mitigation company's representative was deposed because he was a key witness who would be testifying regarding the cause of loss. 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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