Fairfield Connecticut Building Expert Directory

Are Proprietary Specifications Illegal?

April 11, 2018 — Wally Zimolong – Supplemental Conditions
A friend came to me with a question regarding a case he was working: “can a public owner require that bidders use a specific brand name product?” “Of course not,” I said “proprietary specifications are illegal.” Or, at least that’s what I assumed. To my surprise, the law in the Commonwealth of Pennsylvania is not as clear as it is in other jurisdictions. What is a proprietary specification? A proprietary specification lists a product by brand name, make, model and/model that a contractor must (shall) utilize in construction. A basic example of a proprietary specification would state:

“Air Handlers shall be “Turbo Max” as manufactured by Chiller Corp.”

There are two problems with a proprietary specification (other than potentially being illegal): (a) they limit competition, and (b) invite steered contract awards. They limit competition because it limits the type of material that can be used on the project. In the example above, there could be equivalent air handlers available at a better price but the contractor could not use that lower priced product in its bid. Thus, the taxpayers end up paying more for tile. Also, contractors may not be able to secure a certain brand name product because of exclusive distribution agreements. Again, using the example above, contractor A’s competitor may have the exclusive distribution agreement with Chiller Corp. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Proposed California Legislation Would Eliminate Certain Obstacles to Coverage for Covid-19 Business Income Losses

July 20, 2020 — James Hultz & Alan Packer – Newmeyer Dillion
On July 2, 2020, the California Legislature amended California Assembly Bill 1552 to help policyholders seeking business interruption coverage for their COVID-19 losses. The draft legislation states the need for the legislation to go into immediate effect in "order to protect the solvency of businesses that were forced to close their doors or limit business" due to the pandemic. If adopted, the proposed legislation would apply to all commercial insurance policies providing coverage for business interruption in effect on and after March 4, 2020. The proposed legislation would create rebuttable presumptions in favor of coverage for losses due to COVID-19 under Business Income, Extra Expense, Civil Authority and Ingress and Egress policy provisions. For instance, the proposed legislation would create presumptions that COVID-19 was present at the insured premises and caused damage to the insured property. The draft legislation also specifies that the virus shall not be considered a pollutant unless the policy specifies otherwise. The ultimate impact of the draft legislation is unclear however, given that it specifically "does not affect the applicability of any policy provision, including any language addressing loss or damage caused by a virus." For additional information, you can consult with a Task Force attorney by emailing NDCovid19Response@ndlf.com or contacting our office directly at 949-854-7000. About Newmeyer Dillion For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 70 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's success and bottom line. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com. Reprinted courtesy of James S. Hultz, Newmeyer Dillion and Alan H. Packer, Newmeyer Dillion Mr. Hultz may be contacted at james.hultz@ndlf.com Mr. Packer may be contacted at alan.packer@ndlf.com Read the court decision
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$5 Million Construction Defect Lawsuit over Oregon Townhomes

January 06, 2012 — CDJ STAFF

A homeowners’ association in Lake Oswego, Oregon has filed a $5 million lawsuit against the developers of the luxury townhomes. The homeowners of Sunset Crossing are suing Centurion Homes and Aspen Townhomes over claims that construction defects have lead to water intrusion and structural damages. The townhomes were built in 2005.

Andy Burns, the lawyer for Phillip and Patricia Gentelmann, the owners of both Centurion Homes and Aspen Townhomes, said the Gentelmanns were “taking these allegations very seriously.” The suit says that the construction violated state and local building codes and that the firms did not repair damage caused by water intrusion.

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Haight’s Kristian Moriarty Selected for Super Lawyers’ 2021 Southern California Rising Stars

June 14, 2021 — Kristian B. Moriarty - Haight Brown & Bonesteel LLP
Congratulations to partner Kristian Moriarty who was selected to the Super Lawyers 2021 Southern California Rising Stars list. Each year, no more than 2.5% of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Reprinted courtesy of Kristian B. Moriarty, Haight Brown & Bonesteel LLP Mr. Moriarty may be contacted at kmoriarty@hbblaw.com Read the full story... Read the court decision
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Contract Change #9: Owner’s Right to Carry Out the Work (law note)

March 28, 2018 — Melissa Dewey Brumback - Construction Law in North Carolina
In prior versions of the General Conditions, if a contractor defaulted and the Owner (after giving notice) opted to cure by carrying out the work itself, an appropriate Change Order would be issued. However, a Change Order is a contract that requires an agreement by both the Owner and Contractor, and, obviously, Contractors were reluctant to agree that they were in default and responsible for a deductive change order. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Construction Law in North Carolina

Know Your Obligations Under Both the Prime Contract and Subcontract

December 02, 2015 — Craig Martin – Construction Contractor Advisor
A recent case out of New Mexico highlights the importance for subcontractors to review their contract with the general and the contract between the general and the owner. In Centex/Worthgroup, LLC v. Worthgroup Architects, L.P, the architect claimed that the limitation of liability clause in the prime contract trumped the provisions of the subcontract. The court disagreed and ruled that the specific provision in the subcontract controlled. In the case, a general contractor was hired to expand and renovate a resort. The general contractor subcontracted with an architect to design a mechanically stabilized earth wall. The prime contract contained a limitation of liability clause that states:

general contractor shall require its design professional Subcontractor(s) to obtain insurance in an amount not less than $3,000,000. Owner agrees that it will limit general contractor’s liability to Owner for any errors or omissions in the design of the Project to whatever sums Owner is able to collect from the above described professional errors and omissions insurance carrier.

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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Claim Against Broker for Failure to Procure Adequate Coverage Survives Summary Judgment

April 15, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The broker's motion for summary judgment, seeking to dismiss negligence claims for failure to obtain adequate coverage, was denied by the court in Voss v. The Netherlands Ins. Co., 2014 N.Y. LEXIS 384 (N.Y. Ct. App. Feb. 25, 2014). The insured met with a representative of CH Insurance Brokerage Services Co., Inc. (CHI) to discuss coverage for the premises and her two companies. At CHI's request, the insured shared information on sales figures for calculating business interruption coverage. The broker represented that CHI would reassess and revisit the coverage needs as her business grew. CHI recommended $75,000 per incident in coverage for business interruption losses. The insured questioned whether the $75,000 limit was adequate, but the broker assured her that it was sufficient. The insured then accepted the recommendation. Subsequently, the insured's business grew, but CHI renewed the policy with the same $75,000 business interruption limit. 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

Millennials Skip the Ring and Mortgage

June 26, 2014 — Megan McArdle – Bloomberg
They’re living at home in growing numbers. They're not buying homes, which creates ripple effects throughout the housing market. They’re having more babies out of wedlock than in it. Why can’t millennials get it together? The first and most obvious answer is “jobs.” If you can’t find a stable job, it’s hard to move out of Mom’s basement. It’s hard to commit to a mortgage or a spouse. It's hard, in other words, to launch into the middle-class life that constitutes the American Dream. Millennials are some of the biggest victims of the financial crisis. Those without a college degree face high rates of unemployment, while those who have a sheepskin are more and more likely to be underemployed in a job that doesn’t require their degree. Even if the student loan crisis has been overstated, the rising cost of college tuition certainly doesn’t help. Read the court decision
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Reprinted courtesy of Megan McArdle, Bloomberg
Ms. McArdle may be contacted at mmcardle3@bloomberg.net

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