FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

California Bid Protests: Responsiveness and Materiality

January 06, 2016 — Garret Murai – California Construction Law Blog
It can be a rough and tumble world out there. And in the case of public works construction in California, this includes bid disputes. California’s competitive bidding laws require that a public works contract be awarded to the “lowest responsible bidder.” However, as we’ve mentioned before, there are two requirements which must be satisfied for a bidder to be determined to be the lowest responsible bidder: (1) the awarded bidder’s bid must be “responsive”; and (2) the awarded bidder must be “responsible.” In a case decided this past month, DeSilva Gates Construction v. Department of Transportation, Case No. C074521 (December 14, 2015), the California Court of Appeals for the Third District addressed the first of these two requirements, whether two bids on $34 million highway widening project were responsive, which in turn involves a two-step process: (1) whether the bids were responsive or not; and (2) if not, whether the variance in the bids were “material” or “immaterial.” Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Exceptions to Privette Doctrine Do Not Apply Where There is No Evidence a General Contractor Affirmatively Contributed to the Injuries of an Independent Contractor's Employee

November 17, 2016 — Renata L. Hoddinott & Lawrence S. Zucker II – Haight Brown & Bonesteel LLP
The Court of Appeal of the State of California – Second Appellate District in Khosh v. Staples Construction Company, Inc. (10/26/16 – Case No. B268937) affirmed the trial court’s granting of summary judgment in favor of the defendant under the Privette doctrine where plaintiff presented no evidence that the defendant affirmatively contributed to his injuries. Plaintiff Al Khosh (“Khosh”) was injured while performing electrical work on a project. He was employed by Myers Power Products, Inc. (“Myers”) a subcontractor for the project. Khosh sued the general contractor, Staples Construction Company, Inc. (“Staples”) to recover damages for his injuries. Reprinted courtesy of Renata L. Hoddinott, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Ms. Hoddinott may be contacted at rhoddinott@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Anatomy of a Construction Dispute- An Alternative

February 05, 2015 — Christopher G. Hill – Construction Law Musings
Over the past three weeks, I’ve discussed three “stages” of a construction dispute from the claim, to how to increase the pressure for payment, to the litigation. While these three steps are all too often necessary tools in your construction collection arsenal, they are expensive and time consuming. No well run construction business can or should budget for litigation. The better practice would be to engage a construction attorney early in the process and avoid the dispute altogether if possible. Unfortunately, even the best of planning can lead to the need to hire a construction lawyer for the less pleasant task of assisting you in getting paid. This post is about an alternative to the scorched earth of stage 3 of the process that can and should be at least considered either before or after the complaint or demand for arbitration has been filed. I am of course speaking about voluntary mediation. Why did I emphasize “voluntary?” Because to me mandatory mediation (as required in many construction contracts) is a bit like forced volunteerism, it is something that the parties will go through to “check a box” but will not have their hearts in it. Remember, by the time the mandatory mediation clause kicks in, the parties are likely at an impasse in their construction dispute and are ready to fight. Being forced to mediate, especially from the party seeking payment, can (and in my experience often does) make the parties just go through the motions at best and be hostile to the process at worst. Neither of these attitudes are conducive to resolving a dispute. 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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Express Warranty Trumping Spearin’s Implied Warranty

March 06, 2022 — David Adelstein - Florida Construction Legal Updates
Be mindful of that express warranty provision in your contract. It could result in an outcome that you did not consider or factor when submitting your proposal or agreeing to your contract amount. An express warranty could have the effect of eviscerating the argument that you performed your scope of work pursuant to the plans and specifications. In other words, the applicability of the Spearin doctrine could be rendered moot based on express warranty language in your contract that is fully within your control because you do not have to agree to that language. Under the Spearin doctrine:

[W]hen a ‘contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specification.’ Spearin and its progeny set forth a default rule of fundamental fairness that when a general contractor requires a subcontractor to follow certain plans and specifications, the general contractor impliedly warrants that those plans and specifications are ‘free from design defects.’ Put simply, Spearin protects subcontractors from liability for simply following the general contractor’s direction and requirements. However, the implied warranty set forth in Spearin and its progeny may be overcome by express agreement. Where a general contractor and subcontractor expressly agree to allocate the risk of a defective product to the subcontractor, that express agreement must prevail over Spearin’s implied warranty. Lighting Retrofit International, LLC v. Consellation NewEnergy, Inc., 2022 WL 541156 (D. Md. 2022) (internal citations omitted).

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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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Unrelated Claims Against Architects Amount to Two Different Claims

July 30, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Second Circuit found that two claims arising from the same project were unrelated, creating two separate payments by the insurer for the two separate claims. Dormitory Auth. of New York v. Continental Cas. Co., 2014 U.S. App. 12088 (2nd Cir. June 23, 2014). In 1995, the State agency contracted with the insured architectural firm to design and oversee the construction of a new dormitory at City University of New York. Plans drawn by the architects erred in their estimate of the steel requirement. To recover losses from the resulting delay and expense, the agency sent a demand letter in May 2002 to the architects detailing the Steel Girt Tolerance issue. After the project was finished in 2001, another problem was discovered: excess accumulations of snow and ice were sliding off the building onto sidewalks a considerable distance away. The Ice Control Issue was studied during the winter of 2003-04. The conclusion was that the design of the facade failed to account for temperature variations appropriate for a building in New York. The problem could not be resolved by adding canopies, which would have been a cheaper fix. Study of the problem continued into 2005. 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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Georgia Supreme Court Rules Construction Defects Can Constitute an Occurrence in CGL Policies

April 05, 2011 — Beverley BevenFlorez CDJ STAFF

Recently, the Supreme Court of Georgia reversed the decision in American Empire Surplus Lines Insurance Company v Hathaway Development Company, Inc. stating that because Whisnant’s faulty workmanship caused damage to the surrounding properties, the construction defects constituted “occurrences” under the Commercial General Liability (CGL) policy. Unlike the South Carolina Supreme court ruling in the case of Crossman Communities v Harleysville Mutual, the Georgia Supreme Court stated that an accident can happen intentionally if the effect is not the intended result.



Interestingly, the only dissenting judge, J. Melton, disagreed with his colleagues on the basis that “although the term ‘accident’ is not specifically defined in the policy, it is axiomatic that an ‘accident’ cannot result from ‘intentional’ behavior.” It is clear that what constitutes an occurrence in CGL policies is still being hotly debated.



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The Show Must Go On: Navigating Arbitration in the Wake of the COVID-19 Outbreak

July 20, 2020 — Justin K. Fortescue, Zachery B. Roth & Marianne Bradley - White and Williams LLP
The recent COVID-19 outbreak has altered life for all of us, in ways both big and small. Unprecedented restrictions relating to the pandemic have forced individuals across the globe to change the ways in which they live and work. Perhaps not surprisingly, these restrictions have also changed the way we resolve disputes. Just as virtual conferencing has become the “new normal” for family gatherings and social events, it has also become the “new normal” for everything from mediation, to oral argument, to full-blown hearings. To be sure, there are a number of advantages to conducting adversarial proceedings virtually. First and foremost, it results in substantial cost savings for the parties involved. In-person proceedings typically require significant travel expenses, including airline tickets, hotel reservations, and food and beverage stipends. The use of a virtual forum essentially eliminates these expenses, cutting costs dramatically for attorneys, clients, judges, and arbitrators alike. Virtual conferencing also affords the opportunity for increased participation from party representatives living across the country, or even across the world. While demanding work schedules often make it impossible for multiple party representatives to attend a deposition, or even a hearing, in person, virtual proceedings require much less of a time commitment. Because these virtual proceedings require participants to spend less time away from other work-related obligations, party representatives are able to attend proceedings that they may otherwise have had to miss. Reprinted courtesy of White and Williams LLP attorneys Justin K. Fortescue, Zachery B. Roth and Marianne Bradley Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com Mr. Roth may be contacted at rothz@whiteandwilliams.com Ms. Bradley may be contacted at bradleym@whiteandwilliams.com Read the court decision
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Speeding up Infrastructure Projects with the Cloud

July 28, 2018 — Aarni Heiskanen - AEC Business
Infrakit, a cloud service developed by a Finnish startup company, is accelerating infrastructure projects both in Finland and, increasingly, abroad. Automatic transfer of information among parties involved in a project saves time, reduces paperwork, and facilitates the work of land surveyors. In addition to excavators, rock drills can now also be viewed on the map. The CEO and founder of DSC Finland, the supplier of Infrakit, is Teemu Kivimäki. He states that despite the name of the company changing over the years, its principles have stayed the same. Kivimäki describes the functions of the service: “The digital site plans are added to Infrakit, and they can then be viewed on a map and in a 3D view with a browser. When the working machines are also linked to the service, the user can see if the work has been executed according to plan.” Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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