Fairfield Connecticut Building Expert Directory

Construction Litigation Roundup: “It’s None of Your Business.”

May 22, 2023 — Daniel Lund III - Lexology
“It’s none of your business.” So said a construction surety resisting discovery of its underwriting file in the context of the surety’s affirmative $2 million indemnity claim (on a $25M bond), and a Missouri federal court agreed. In response to the surety’s indemnity suit, the defaulted principal contractor and additional corporate indemnitors offered up defenses of “lack of consideration and the doctrine of unclean hands, laches, waiver and/or estoppel, among others.” The indemnitors also issued written discovery to the surety seeking to obtain the surety’s underwriting file – which would reveal the underpinnings of the surety’s decision to issue the bond to the contractor – asserting “that the underwriting and due diligence documents are relevant to the[] lack of consideration defense. [Indemnitors] claim that ‘[t]his defense is based on Defendants' belief that Plaintiff did not conduct any reasonable inquiry into any Defendants' ability to pay or financial resources and therefore Plaintiff did not rely on the financial condition of each Defendant in determining whether to issue the bonds.’" Read the court decision
Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

Traub Lieberman Partner Eric D. Suben and Associate Laura Puhala Win Summary Judgment in Favor of Insurer, Determining it has No Duty to Defend

September 18, 2023 — Traub Lieberman
In a declaratory judgment action brought before the United States District Court, Eastern District of New York, Traub Lieberman Partner Eric D. Suben and Associate Laura Puhala won summary judgment in favor of Plaintiff Foremost Signature Insurance Co. (“Foremost”), obtaining a declaration that it has no obligation to defend or indemnify Defendant 170 Little East Neck Road LLC (“Little East”) in an underlying state court personal injury action. In the underlying action, a self-employed financial advisor leasing a suite for her business on the second floor of the property at 170 Little East Neck Road (the “Property”), sued Little East in New York Supreme Court, Suffolk County, alleging injuries resulting from slipping on ice on a walkway near an exterior door at the Property. Reprinted courtesy of Eric D. Suben, Traub Lieberman and Laura S. Puhala, Traub Lieberman Mr. Suben may be contacted at esuben@tlsslaw.com Ms. Puhala may be contacted at lpuhala@tlsslaw.com Read the court decision
Read the full story...
Reprinted courtesy of Traub Lieberman

The COVID-19 Impact: Navigating the Legal Landscape’s New Normal

July 27, 2020 — Amanda Mathieu - Lewis Brisbois
While most of the country has been at a standstill since March, you might be wondering, what about my lawsuit or my administrative charge? For the past couple of months, most litigation cases have largely been put on pause in the courts and at administrative agencies. However, as we adjust to what is clearly a new normal in both our lives and the legal landscape as we know it, cases will begin to pick up speed again, albeit with new strategies and challenges to keep in mind. As courts begin to reopen, judges are emphasizing in many jurisdictions that criminal cases will take priority in an effort to attend to constitutionally required timelines. Nevertheless, it will remain just as important as before the pause button was hit to keep cases moving forward. This ramp up period presents a unique opportunity for clients and attorneys to invest meaningful time into investigating and developing defenses to claims while the court system and related case pace remains slowed. Read the court decision
Read the full story...
Reprinted courtesy of Amanda Mathieu, Lewis Brisbois
Ms. Mathieu may be contacted at Amanda.Mathieu@lewisbrisbois.com

Mediating Contract Claims and Disputes at the ASBCA

December 20, 2021 — Brian Waagner - Construction Executive
The Contract Disputes Act establishes the formal process for resolving nearly all claims and disputes that arise under federal government contracts. It is the source of the requirement that contractors certify claims in excess of $100,000, the contracting officer’s final decision and the deadlines for bringing a dispute to the court of federal claims or an agency board of contract appeals. It is also the source of the federal government’s authority to use mediation and other forms of alternative dispute resolution. Here are six key factors contractors should know about mediating contract claims and disputes at the Armed Services Board of Contract Appeals (ASBCA). 1. The Parties Control the Parameters of ADR Proceedings Many commercial contracts and court rules require mediation of every dispute. There is no settlement meeting, mediation or any other type of mandatory ADR proceedings in cases brought to the ASBCA. The parties control the process, and they may adopt any approach to ADR that they believe will be effective. Mediation is nevertheless voluntary. Without the agreement of both parties, it won’t happen. Reprinted courtesy of Brian Waagner, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
Read the full story...
Reprinted courtesy of

Effectively Managing Project Closeout: It Ends Where It Begins

August 06, 2019 — William E. Underwood - ConsensusDocs
Project closeout is sometimes one of the last things on a contractor’s mind at the beginning of a project, but project closeout can have a huge impact on a contractor’s overall profitability and success. Effectively managing the closeout process is critical, and it all begins with the negotiation and execution of the project contract. This contract can, and should, provide a complete roadmap for project closeout, as addressing these issues on the front end can set up the parties for successful project completion. It is then equally important to re-review the terms of the contract as project closeout approaches to ensure that everyone, including the owner, adheres to all contractual requirements. This article examines several pertinent issues related to project closeout that should be addressed during the contracting stage, including defining substantial and final completion, inspection and acceptance, punch lists, and warranties. Defining Substantial and Final Completion Having clear definitions for both substantial and final completion in your construction contract is an important and necessary early step in achieving successful project closeout. Read the court decision
Read the full story...
Reprinted courtesy of William E. Underwood, Jones Walker LLP
Mr. Underwood may be contacted at wunderwood@joneswalker.com

BKV Barnett, LLC v. Electric Drilling Technologies, LLC: Analyzing the Impact of Colorado’s Anti-Indemnification Statute

December 23, 2024 — David M. McLain – Colorado Construction Litigation Blog
In the recent case of BKV Barnett, LLC v. Electric Drilling Technologies, LLC, the United States District Court for the District of Colorado dealt with significant legal issues concerning indemnification and insurance obligations in construction agreements. The ruling, handed down on September 26, 2024, serves as a crucial reminder of the limitations imposed by Colorado’s Anti-Indemnification Statute, C.R.S. § 13-21-111.5, and its implications for contracts in the construction industry. This case arose from a Master Service Contract (“MSC”) between BKV Barnett, LLC (“BKV”) and Electric Drilling Technologies, LLC (“EDT”), in which EDT provided electrical services and equipment to an oil and gas lease wellsite in Texas. Following a lightning strike in early 2022 that damaged electrical infrastructure at the site, EDT dispatched Turn Key Utility Construction to repair the damage. During the repair work, an arc flash occurred, causing significant injuries to one of Turn Key’s employees, Matthew Lara, leading to a personal injury lawsuit filed by Lara in Dallas County, Texas. BKV sought indemnification, defense, and additional insured status from EDT under the terms of their MSC, which EDT contested. Read the court decision
Read the full story...
Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

Walking the Tightrope of SB 35

December 22, 2019 — Robert Howard, Alexander Walker and Matt Olhausen - Gravel2Gavel Construction & Real Estate Law Blog
Developers in California know that getting approval to build new housing projects can be extremely difficult, time-consuming, and expensive. But a new policy is finally coming into full effect which could help developers cut through those barriers. SB 35, enacted in 2017, streamlines the approval process for housing developments in areas with inadequate housing supply, so long as the developments meet certain criteria. We have written elsewhere about the initial impacts of SB 35. SB 35 has successfully allowed some developers to obtain their entitlements quickly and easily through a streamlined process, but some local governments have resisted the use of SB 35. For example, the City of Los Altos denied an application that attempted to obtain streamlining through SB 35, prompting a nonprofit housing organization to sue. In Cupertino, the Planning Commission Chairman advocated in April 2019 for rescinding the SB 35 approval of the redevelopment of the Vallco Mall, which would include over 2,400 units of housing, while some residents have sued to block the development. As a result, it is crucial for developers to understand the details of SB 35 and make sure to meet all of its requirements. Any misstep may allow a recalcitrant local government to deny that a development project qualifies for SB 35 treatment and attempt to block it. In November 2018, the state Department of Housing and Community Development (HCD) released Guidelines to clarify the criteria for SB 35 and assist cities in determining whether projects qualify for streamlining. Reprinted courtesy of Pillsbury attorneys Robert Howard, Alexander Walker and Matt Olhausen Mr. Howard may be contacted at robert.howard@pillsburylaw.com Mr. Walker may be contacted at alexander.walker@pillsburylaw.com Mr. Olhausen may be contacted at matt.olhausen@pillsburylaw.com Read the court decision
Read the full story...
Reprinted courtesy of

Partners Jeremy S. Macklin and Mark F. Wolfe Secure Seventh Circuit Win for Insurer Client in Late Notice Dispute

November 12, 2019 — Jeremy S. Macklin & Mark F. Wolfe - Traub Lieberman Perspectives
In a written decision dated August 12, 2019, authored by Chief Judge Diane P. Wood, the U.S. Court of Appeals for the Seventh Circuit ruled in favor of Traub Lieberman’s insurer client, affirming the District Court’s grant of summary judgment in the insurer’s favor. Partners, Jeremy S. Macklin and Mark F. Wolfe, represented the insurer client in the District Court and before the Seventh Circuit. Macklin argued the case before the Seventh Circuit on behalf of the insurer on May 28, 2019. The insurer client issued an excess liability policy to Deerfield Construction, a telecommunications construction company, which incorporated the notice requirements of the primary liability insurance policy issued by American States Insurance Company. The insured’s employee was involved in an automobile accident in 2008, during the effective dates of the excess liability policy. A lawsuit arising from the accident was filed and served in 2009. While Deerfield Construction, through its retained insurance intermediary, provided immediate notice of the accident and lawsuit to the primary liability insurer, the insurer client did not receive notice of either the accident or the lawsuit from any source until December 2014, approximately six weeks before trial. Following a $2.3 million judgment, the insurer client filed a complaint for declaratory judgment seeking a finding that Deerfield Construction materially breached the excess liability policy by not providing reasonable notice of the accident or the lawsuit, as required by the policy. The District Court found that the notice given to the insurer client was unreasonable as a matter of law. The District Court rejected Deerfield Construction’s argument that an insurance broker involved in the purchase of the excess liability policy, Arthur J. Gallagher, was the insurer client’s apparent agent for purposes of accepting notice. The District Court also rejected Deerfield Construction’s argument that the insurer client’s acts of requesting discovery, reviewing trial reports, and participating in settlement discussions raised equitable estoppel concerns. Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman and Mark F. Wolfe, Traub Lieberman Mr. Macklin may be contacted at jmacklin@tlsslaw.com Mr. Wolfe may be contacted at mwolfe@tlsslaw.com Read the court decision
Read the full story...
Reprinted courtesy of

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES