FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Construction Defect Lawsuits Hinted for Dublin, California

February 07, 2013 — CDJ STAFF
Without naming the community, the blog Around Dublin says that a condo community in Dublin, California may be prepping for a construction defect lawsuit. According to the article, the problems include a façade peeling away from the building, cracks in walls and granite countertops, and issues with both the HVAC systems and the plumbing. The homeowners association is said to have insufficient reserve funds to address the problems. Read the court decision
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Notice and Claims Provisions In Contracts Matter…A Lot

February 27, 2023 — David Adelstein - Florida Construction Legal Updates
Technical contractual provisions in contracts can carry the day. Whether you like it or not, and whether you appreciate the significance of the provisions, they matter. Notice provisions in a contract mean something. Following the claims procedure in a contract means something. The moment you think they don’t mean anything is the moment they will be thrown in your face and used as a basis to deny your position for additional money or time. You may think these provisions are being used as a “gotcha” tactic. They very well might be. But these are provisions included in the contract you agreed to so you know this risk before any basis for additional money or time even arises. The recent bench trial opinion in Metalizing Technical Services, LLC v. Berkshire Hathaway Specialty Ins. Co., 2023 WL 385413 (S.D.Fla. 2023) illustrates the reality of not properly complying with such provisions. The keys when dealing with any notice or claims provision, or really any technical provision in your contract, is to (a) negotiate the risk before you sign the contract, (b) chart the provisions so your team know how to ensure compliance, and (c) make sure you comply with them. Period! Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Is Construction Heading Off the Fiscal Cliff?

December 20, 2012 — CDJ STAFF
After a period of growth, the construction industry lost 20,000 jobs in November, based on the federal jobs data. Damon Scott of New Mexico Business Weekly suggests that contractors may have laid off employees in anticipation of the “fiscal cliff.” Ken Simpson, the chief economist of the National Association of Home Builders said in a press release that “it is discouraging that construction employment is still struggling after three years of expansion in the overall economy.” Read the court decision
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When a Request for Equitable Adjustment Should Be Treated as a Claim Under the Contract Disputes Act

August 29, 2022 — David Adelstein - Florida Construction Legal Updates
In federal contracting, contractors are sometimes torn about submitting a request for equitable adjustment (known as an “REA” under 48 C.F.R. 252.243-7002) or submitting a formal claim under the Contract Disputes Act (41 U.S.C. s. 7103), the latter requiring a final decision by the contracting officer and starts the clock with respect to interest and preserving rights. It is also sometimes not easy for the contracting officer receiving an REA to determine whether the REA is actually a claim under the Contract Disputes Act requiring more immediate action. This recent take by the United States Court of Appeals for the Federal Circuit hits the nail on the head:

We recognize that contracting officers will sometimes face the difficult challenge of determining whether a request for equitable adjustment is also a claim. Contractors must choose between submitting a claim—which starts the interest clock but requires the contracting officer to issue a final decision within 60 days—and submitting a mere request for equitable adjustment—which does not start the interest clock but gives the contractor more time to negotiate a settlement and possibly avoid hefty legal fees. The overlap between these two types of documents might create room for gamesmanship. For example, a contractor could submit a document that is a claim—starting the interest clock—but appears to be a mere request for equitable adjustment—causing the contracting officer to not issue a final decision within the 60-day deadline and allowing interest to accrue for months or years. But the government has tools to address this challenge: The contracting officer can communicate to the contractor that she is going to treat the document as a claim and issue a final decision within 60 days. Or the government can explicitly require the contractor to propose settlement terms and attempt to settle disputes before submitting a claim to the contracting officer for a final decision.

Zafer Construction Company v. U.S., 2022 WL 2793596, *5 (Fed.Cir. 2022).

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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National Lobbying Firm Opens Colorado Office, Strengthening Construction Defect Efforts

January 05, 2017 — Beverley BevenFlorez-CDJ STAFF
Michael Best Strategies, a national law and lobbying firm, has recently opened an office in Colorado. According to the Denver Business Journal, the firm “has recruited several big-name associates — a move that could give business leaders even more clout with the Legislature on issues such as construction-defects reform.” One of the firm’s recruits, Jeff Thormodsgaard, the lead lobbyist in the recent movement to make it harder to sue condominium builders, told the Denver Business Journal, “The only change [in the construction-defects reform effort] is that we’re going to be adding more feet and more boots on the ground and more gravitas.” Read the court decision
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Shifting the Risk of Delay by Having Float Go Your Way

July 05, 2021 — Christopher J. Brasco & Matthew D. Baker - ConsensusDocs
Critical path delay plays a central role in allocating responsibility for project delay. The interrelated concept of concurrency is also frequently determinative of entitlement on a range of claims including by owners for liquidated damages and by contractors for delay damages. What constitutes critical/concurrent delay, however, is hotly debated by scheduling experts. The lack of real consensus regarding how critical/concurrent delay should be determined and analyzed has created significant uncertainty in scheduling disputes. Indeed, courts have adopted differing and at times conflicting theories of concurrency that can produce divergent outcomes for the parties. In an effort to reduce uncertainty, stakeholders have increasingly adopted specialized contractual provisions and scheduling techniques which have significant implications for the evaluation of the companion concepts of criticality and concurrency. One such mechanism is float sequestration. Regardless of whether float sequestration is ultimately in the construction industry’s broader interest, stakeholders must be able to recognize its use and appreciate the implications for delay disputes on their projects. Simply defined, float is the number of days an activity can be delayed before affecting the project’s critical path (i.e., the longest chain of activities which determines the project’s minimal duration). Typically, only delays affecting the critical path can produce concurrent delay. Consequently, the concept of float is integral to understanding and resolving issues of both criticality and concurrency. Reprinted courtesy of Christopher J. Brasco, Watt, Tieder, Hoffar & Fitzgerald, LLP and Matthew D. Baker, Watt, Tieder, Hoffar & Fitzgerald, LLP Mr. Brasco may be contacted at cbrasco@watttieder.com Mr. Baker may be contacted at mbaker@watttieder.com Read the court decision
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Champagne Wishes and Caviar Dreams. Unlicensed Contractor Takes the Cake

August 31, 2020 — Garret Murai - California Construction Law Blog
Before the Kardashians, before Empire, before Crazy Rich Asians there was Lifestyles of the Rich and Famous with Robin Leach. The next case, Moore v. Teed, Case No. A153523 (April 24, 2020), 1st District Court of Appeals, is about the unfulfilled wishes and dashed dreams of the $13 million dollar “fixer upper.” Moore v. Teed The $13 Million Dollar “Fixer Upper” Justin Moore just wanted to buy a house in San Francisco. But he couldn’t afford one in the neighborhoods he preferred. But in 2011, luck struck, when Moore met Richard Teed, a real estate agent with “over 25 years of experience as a building contractor,” “an extensive background in historic restorations” and a “deep understanding of quality construction.” Teed told Moore that he could locate a “lower-priced fixer-upper in a choice neighborhood and then renovate it.” Moore was sold. 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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Ohio Court of Appeals: Absolute Pollution Exclusion Bars Coverage For Workplace Coal-Tar Pitch Exposure Claims

January 24, 2018 — White and Williams LLP
On December 28, 2017, the Ohio Court of Appeals (Eighth District) held in GrafTech International, Ltd., et al. v. Pacific Employers Ins. Co., et al., No. 105258 that coverage for alleged injurious exposures to coal tar pitch was barred by a liability insurance policy’s absolute pollution exclusion. Applying Ohio law, the court concluded that Pacific Employers had no duty to defend GrafTech or pay defense costs in connection with claims by dozens of workers at Alcoa smelting plants that they were exposed to hazardous substances in GrafTech products supplied to Alcoa as early as 1942. Read the court decision
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Reprinted courtesy of White and Williams

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