Fairfield Connecticut Building Expert Directory

Construction Lien Waiver Provisions Contractors Should Be Using

January 06, 2020 — Jason Lambert - Construction Executive
It is common in construction for a subcontractor or material supplier of any tier to be required to provide a lien waiver when receiving payment. But not all lien waivers are created equal. While at a minimum, a lien waiver, by definition, needs to include a release of liens, it can also include many other terms that can tie up loose ends or resolve potential problems before they begin. Additional Releases A typical lien release is going to release any liens and right to claim liens on the subject property. But a lien waiver can also include releases of any claims against surety bonds, other statutory rights or claims, and at its broadest, claims against the paying party. One example of a provision that could help accomplish this is a release of “any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights.” Broad release language can also be used to effectively preclude any claims arising prior to the date of the release. Payment Representations and Warranties A typical lien release has no representations or warranties about payment to subcontractors or material suppliers of a lower tier. But contractors can include language requiring the company receiving payment to represent and warrant that all subcontractors of a lower tier have been paid or will be paid within a certain timeframe using the funds provided and that these are material representations and inducements into providing payment. On a related note, if the contract requires subcontractors to provide lien releases from lower tier subcontractors in addition to their own release when seeking payment, contractors can require the sub-subcontractor releases to include representations that they have been paid by the subcontractor to try and tie up payment loose ends all around. Reprinted courtesy of Jason Lambert, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
Read the full story...
Reprinted courtesy of
Mr. Lambert may be contacted at jason.lambert@nelsonmullins.com

One More Thing Moving From California to Texas: Wildfire Risk

June 19, 2023 — Patrick Sisson - Bloomberg
In early January, Keith Elwell was doing one of the things he does best, swinging chainsaws to help save forests from wildfire. Amid groves of junipers and white oak trees, Elwell led a team of a half-dozen volunteers, clearing brush and dead limbs in Twin Springs Preserve in Williamson County, Texas, a 170-acre county preserve a 40-minute drive north of downtown Austin. Set on the northeastern edge of Hill Country, a rolling, rocky landscape of natural springs and wild grasses, it’s also adjacent to Georgetown, the fastest-growing city in the United States according to US Census Bureau data. Once a small farming town, it’s now an Austin suburb of more than 75,000 people with 60 subdivisions under construction. Read the court decision
Read the full story...
Reprinted courtesy of Patrick Sisson, Bloomberg

Supreme Court Eliminates Judicial 'Chevron' Deference to Federal Agency Statutory Interpretations

July 31, 2024 — Jane C. Luxton - Lewis Brisbois
Washington, D.C. (July 1, 2024) – In a much-anticipated decision, on June 28, 2024, the Supreme Court issued a sweeping opinion “overrul[ing]” a 40-year old precedent that required judges to defer to federal agency interpretations of their governing statutes when those laws were ambiguous or silent. Loper Bright Enterprises v. Raimondo, et al. No. 22-451 (2024), overruling Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The decision means that courts will no longer give special weight to an agency’s view of the scope of its regulatory powers but must apply independent judgment in deciding “whether an agency has acted within its statutory authority.” Loper Bright, slip op. at 35. Taking pains to explain that the new ruling would not allow for reversals of cases previously decided under the Chevron doctrine, the Court left no doubt that, in the words of Justice Neil Gorsuch, “[t]oday, the Court places a tombstone on Chevron no one can miss.” Id., Gorsuch Concurring Opinion at 1. Writing for a 6-2 majority, Chief Justice Roberts forcefully condemned the Chevron-based principle that courts should defer to a federal agency’s interpretation of the scope of its legal authority, rejecting the concept that agencies have any special expertise in statutory interpretation, a field reserved to the courts, not the executive branch, under Article III of the Constitution and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Read the court decision
Read the full story...
Reprinted courtesy of Jane C. Luxton, Lewis Brisbois
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com

Illinois Supreme Court Rules Labor Costs Not Depreciated to Determine Actual Cash Value

November 19, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The Illinois Supreme Court determined that a homeowner insurer may not depreciate labor costs in calculating actual cash value (ACV) after a loss under the policy. Sproull v. State Farm Fire and Casualty Co., 2021 Ill. LEXIS 619 (Ill. Sept. 23, 2021). Plaintiff was insured under a homeowner's policy that provided replacement cost coverage for structural damage. Under the policy, the insured would initially receive an ACV payment but then could receive replacement cost value (RCV) if repairs or replacement were completed within two years and the insurer was timely notified. The policy did not define "actual cash value." Plaintiff suffered wind damage to his residence and timely submitted a property damage claim to State Farm. The adjuster determined that the building sustained a loss with RCV of $1711.54. In calculating ACV, State Farm began with the RCV and then subtracted plaintiff's $1000 deductible and an additional $394.36, including taxes, for depreciation. Plaintiff thus received an ACV payment of $317.18. Plaintiff claimed that he was underpaid on his ACV claim because State Farm depreciated labor, which is intangible and thus not subject to wear, tear, and obsolescence. Further, labor should not have been depreciated because it was not susceptible to aging or wearing and its value did not diminish over time. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Bailout for an Improperly Drafted Indemnification Provision

February 11, 2019 — David Adelstein - Florida Construction Legal Updates
A recent opinion came out that held that even though an indemnification provision in a subcontract was unenforceable per Florida Statute s. 725.06, the unenforceable portion is merely severed out of the indemnification clause leaving the rest of the clause intact. In essence, an otherwise invalid indemnification clause is bailed out by this ruling (which does not even discuss whether this subcontract had a severability provision that states that if any portion of any provision in the subcontract is invalid, such invalid portion shall be severed and the remaining portion of the provision shall remain in full force and effect). This opinion arose from a construction defect case, CB Contractxors, LLC v. Allens Steel Products, Inc.,43 Fla.L.Weekly D2773a (Fla. 5thDCA 2018), where the general contractor, sued by an association, flowed down damages to subcontractors based on the contractual indemnification provision in the subcontracts. Subcontractors moved to dismiss the contractual indemnification claim because it was not compliant with Florida Statute s. 725.06. The indemnification provision required the subcontractors to indemnify the general contractor even for the general contractors own partial negligence, but failed to specify a monetary limitation on the extent of the indemnification as required by Florida Statute s. 725.06. (The indemnification clause in the subcontract was the standard intermediate form of indemnification that required the subcontractor to indemnify the general contractor for claims regardless of whether the claims were caused in part by the general contractor.) Read the court decision
Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Quick Note: Mitigation of Damages in Contract Cases

October 02, 2018 — David Adelstein - Florida Construction Legal Updates
In an earlier article, I discussed an owner’s measure of damages when a contractor breaches the construction contract. This article discussed a case where the contractor elected to walk off a residential renovation job due to a payment dispute when he demanded more money and the owners did not bite. This case also discussed the commonly asserted defense known as mitigation of damages, i.e., the other party failed to properly mitigate their own damages. In the breach of contract setting, mitigation of damages refers to those damages the other side could have reasonably avoided had he undertaken certain (reasonable) measures. This is known as the doctrine of avoidable consequences. Read the court decision
Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Avoid Drowning in Data: Keep Afloat with ESI in Construction Litigation

May 15, 2023 — Steve Swart - The Dispute Resolver
Maybe it is another lawyer on your team, a client, the Court. Maybe it is you. Almost every lawyer has heard (or thought, felt, or anguished over) the following: Wait — What? Discovery is going to cost how much? The concern is real. Per a 2019 Southern District of New York opinion:

The average case can involve collection, review and production of 100 gigabytes of data (or 6.5 million pages of Word documents).
At a typical rate of review of 40-60 documents per hour, assuming 100,000 documents are collected, that is about 2,000 hours of attorney review time.
Adding in fees for forensic collection, storage, and processing to maintain metadata can result in a bill totaling $500,000.

Brown v. Barnes & Noble, Inc., 474 F. Supp. 3d 637, 645 & n.3 (S.D.N.Y. 2019). What's counsel to do? The following four points can help counsel streamline and reduce costs in discovery: (1) know your case, (2) know your data — understand it and document collection, (3) cooperate with counsel, and (4) implement a protocol for electronically-stored information ("ESI"). Read the court decision
Read the full story...
Reprinted courtesy of Steve Swart, Williams Mullen
Mr. Swart may be contacted at sswart@williamsmullen.com

Defect Claims Called “Witch Hunt”

November 20, 2013 — CDJ STAFF
Saying that “it was blatantly obvious that LAWA’s airport maintenance has culpability in this matter,” Tutor-Saliba Corp is claiming that the recent lawsuit from Los Angeles World Airports, the operators of LAX, is “an apparent witch hunt.” The airport has claimed that Tutor-Saliba’s work in building the runway was defective. The firm notes in response that their warranty against defects expired in 2009 and claims that some of the areas with problems are areas they did work. Instead of defective workmanship, Tutor-Saliba has suggested that the problems with the runway are due to poor maintenance. Their suggestion is that LAX review its maintenance procedures. Read the court decision
Read the full story...
Reprinted courtesy of

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES