FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Insurer's Daubert Challenge to Insured's Expert Partially Successful

November 03, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The insurer was partially successful in challenging two of the insureds' experts in a bad faith case. Estate of Arroyo v. Infinity Indem. Ins. Co., 2016 U.S. Dist. LEXIS 115669 (S.D. Fla. Aug. 29, 2016). The Estate sought to qualify two experts, Lewis N. Jack and James P. Schratz. They were to opine on Infinity's handling of the Estate's insurance claims and the extent of damages warranted in the case. Jack was to testify on Infinity's duties to the insured, its investigation of the case, its reliance on Infinity's agents, and his belief that Infinity could have settled the case. Schratz's opinions mostly concerned Infinity's handling of its investigation. 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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Look to West Africa for the Future of Green Architecture

May 16, 2022 — Kriston Capps - Bloomberg
In 2014, a crowd of demonstrators stormed Burkina Faso’s National Assembly building, setting it ablaze and ending the nearly 30-year rule of President Blaise Compaoré. A year later, Burkenabè architect Diébédo Francis Kéré was asked to imagine a new parliamentary building — one that would reflect a more democratic future for the West African nation. Kéré conceived a six-story stepped pyramid that slopes up gently from the ground, inviting citizens to gather, climb and take in views of the capital city, Ouagadougou. The ruins of the former parliament building next door would be transformed into a rainwater-collecting memorial park. The project remains a ways off: Burkina Faso continues to struggle with political unrest, including a coup d’état in January 2022. But Kéré’s fast-growing prominence may improve the odds that his vision will eventually materialize. In March, he became the first African architect to win the Pritzker Architecture Prize, the design field’s top honor. Read the court decision
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Reprinted courtesy of Kriston Capps, Bloomberg

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A Good Examination of Fraud, Contract and Negligence Per Se

February 28, 2018 — Christopher G. Hill – Construction Law Musings
I have spoken on several occasions here at Construction Law Musings about the interplay (or lack thereof) between fraud and contract as it relates to construction in Virginia. The general rule is that fraud and contract claims don’t mix and a fraud claim in the face of a contractual one is likely to be dismissed. However, there are exceptions to this rule as there are to just about every legal rule (we construction lawyers would be out of a job without them). A good examination of the interplay between fraud and contract was set out by the Eastern District of Virginia federal court in Zuberi et al v. Hirezi et al. In that case the Zuberis purchased a home from the Hirezis and later filed suit alleging that the Hirezis concealed serious structural defects that made the house uninhabitable and unsellable. Among the many claims by the Zuberis were those fro fraud, fraudulent inducement, constructive fraud, negligence per se, violation of the Virginia Consumer Protection Act, and civil conspiracy. In short, they were out for blood. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Pennsylvania Court Extends Construction Defect Protections to Subsequent Buyers

December 20, 2012 — CDJ STAFF
The Pennsylvania courts have long held that there is an implied warranty of habitability for the initial purchaser of a home. Now, as some defects may not immediately show up, the court has extended that implied warranty to second and subsequent purchasers. As Marc D. Brookman, David I. Haas, and Christopher Bender of Duane Morris note, “this judicially created doctrine shifts the risk of a latent defect in the construction of a new home from the purchaser to the builder-vendor.” The Pennsylvania Supreme Court concluded that a contractual relationship is not needed for an implied warranty of habitability. The court’s concern was inequalities would result when a home was sold while other homes were protected by being within the statute of repose. Read the court decision
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Federal Arbitration Act Preempts Pennsylvania Payment Act

June 15, 2020 — Wally Zimolong - Supplemental Conditions
I am back. It feels like an entirety since I last posted. But a hellacious trial schedule got me off the blogosphere for some time. Plus, there was nothing to write about. But I am back with a bang thanks to a decision from the Eastern District of Pennsylvania concerning the interplay of a forum selection clause appearing in an arbitration clause in a construction contract and the Pennsylvania Contractor and Subcontractor Payment Act. In Bauguess Electrical Services, Inc. v. Hospitality Builders, Inc., the federal court (Judge Joyner) ruled that the federal arbitration act preempted the Payment Act’s prohibition on forum selection clauses and held that an arbitration must proceed in South Dakota even though the construction project were the work was performed was located in Pennsylvania. The Payment Act applies to all commercial construction projects performed in Pennsylvania. As some you might know, Section 514 of the Payment Act, 73 P.S. 514, prohibits choice of law and forum selection clauses. It states “[m]aking a contract subject to the laws of another state or requiring that any litigation, arbitration or other dispute resolution process on the contract occur in another state, shall be unenforceable.” Therefore, if a construction contract is for a project located in Pennsylvania, Pennsylvania law must apply and all disputes must be adjudicated in Pennsylvania. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Maryland Court Affirms Condo Association’s Right to Sue for Construction Defects

November 27, 2013 — CDJ STAFF
The Maryland Court of Appeals, that state’s highest court, recently reaffirmed that condominium association have broad discretion in suing for construction defects in when they are representing at least two unit owners. Nicholas D. Cowie of the Baltimore-based construction defect legal firm Cowie & Mott, gives his summary of the case on his firm’s web site. Mr. Cowie notes that the Council of Unit Owners of Bentley Place Condominium sued the developer and builder for construction defects in both common areas and within units, representing itself and “two or more” unit owners. A jury awarded $6.6 million; the builder and developer appealed. The court ruled on the appeal that the Council of Unit Owners had a right to pursue these claims, and could recover full damage to common elements, even if some owners are time-barred due to their date of purchase. Mr. Cowie represented the Council of Unit Owners during the lawsuit. Read the court decision
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Motions to Dismiss, Limitations of Liability, and More

January 23, 2023 — Christopher G. Hill - Construction Law Musings
Remember BAE Sys. Ordnance Sys. V. Fluor Fed. Sols? I examined that case on two occasions previously here at Construction Law Musings. Previously the discussions were about the mix (or lack thereof) between fraud and contract and about how careful contract drafting is key. In the most recent opinion in this ongoing litigation from March of 2022, the Court examined various motions to dismiss the Complaint and Counterclaim in the matter. As a reminder, the basic facts are as follows. The US Army Joint Munitions Command (“Army”) contracted with BAE Systems OrdnanceSystems, Inc. (“BAE”) to operate and maintain the Radford Army Ammunition Plant (“RFAAP”)under a basic ordering agreement (“BOA”). Under BOA Task Order 002, BAE contracted to replace the legacy NC facility at the RFAAP with a newer one (the “NC Project”). Initially, BAE subcontracted the NC Project to Lauren Engineers & Constructors (“Lauren”), but later terminated Lauren. Despite terminating Lauren, BAE’s timeline to complete the NC Project remained unchanged and BAE was required to use Lauren’s design for the NC Project. BAE gave interested bidders access to the Lauren design and other related documents and required the selected subcontractor to perform in accordance with the 85% complete Lauren design, that the Lauren design could be relied on for accuracy, and the selected subcontractor only had to complete the unfinished parts. Fluor Federal Solutions, LLC (“Fluor”) submitted a request for information (“RFI”) asking BAE about the standards referenced in the SOW. Fluor was unable to determine the completeness of the Lauren design but relied on BAE’s assertion that the design was 85% complete. BAE rejected Fluor’s initial bid as being too high given what BAE had already paid Lauren for its design and told Fluor to lower its bid because the design was close to complete. Fluor lowered its price and submitted another bid proposal that outlined a firm-fixed-price design/build that forecasted 32 months to complete the NC Project. BAE awarded Fluor an Undefinitized Contract Action (“UCA”) in the amount of $9 million dollars, later increased to $32 million. Under the UCA, Fluor began procuring materials and physical construction before a formal subcontract was agreed upon. On December 17, 2015, BAE and Fluor agreed to a fixed-price design and build subcontract (the “Subcontract”) in which Fluor agreed to design, construct, and partially commission the NC Project for $245,690,422.00, which included money spent already in the UCA. When this litigation began, Fluor was scheduled to complete its work by December 2020, 2.5 years beyond the originally agreed-upon completion date. 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

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Construction Law Alert: A Specialty License May Not Be Required If Work Covered By Another License

March 07, 2011 — Steven M. Cvitanovic

Contractors should always be sure that they understand the licensing in any Subcontract or Prime Contract before entering into any agreement. However, on March 3, 2011, in the case of Pacific Casson & Shoring, Inc. v. Bernards Bros., Inc. 2011 Cal.App.Lexis 236, the Court of Appeal determined that if a specialty license is subsumed within another license, the specialty license may not be required.



Bernards entered into a subcontract with Pacific to excavate, backfill, grade and provide geotechnical design parameters for a hospital. The Prime Contract required the bidder to maintain a Class C-12 specialty earthwork license. However, Pacific only held a Class A general engineering license which it turns out was suspended during the performance of the work. Pacific sued Bernards for nonpayment of $544,567, but the lawsuit was dismissed because the trial court found that Pacific (1) lacked a C-12 license, and (2) Pacific’s Class A license was suspended for failure to pay an unrelated judgment. Pacific was also ordered to disgorge $206,437 in prior payments.



The Court of Appeal reversed and remanded. The Court of Appeal agreed with Pacific and held that a C-12 specialty license was not required despite the Prime Contract. The Court of Appeal found that the C-12 specialty license would have been “superfluous” since it was fully encompassed within the Class A requirements. However, the Court of Appeal also remanded the case for further



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Reprinted courtesy of Steve Cvitanovic of Haight Brown & Bonesteel, LLP.

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