FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

When Subcontractors Sue Only the Surety on Payment Bond and Tips for General Contractors

August 13, 2019 — Ira M. Schulman & Emily D. Anderson - ConsensusDocs
Payment bonds have been a staple of public construction projects since 1874, when the U.S. Congress first passed the Heard Act, which required that contractors obtain payment bonds for public projects to ensure that subcontractors and material suppliers have a way to recover their damages if an upstream contractor fails to pay for work performed and materials furnished on the project. The 1874 Heard Act has since been replaced by the 1935 Miller Act, and the concept has been expanded to construction projects funded by the states through state statutes known as “Little Miller Acts.” But the structure remains the same: On most public projects where the project’s cost exceeds $100,000, the prime contractor (the bond principal) is required to obtain a payment bond from a surety equal to the contract price to guarantee to subcontractors and material suppliers (the bond obligees) that the surety will pay for labor and materials under certain statutory or contractual conditions should the contractor fail to make payment. A surety is jointly and severally liable with the contractor to the subcontractor, which means that the subcontractor may seek recovery against either the contractor or the surety or both, and the contractor and surety will be liable for the damages together. Put another way, in most states and in federal court, an unpaid subcontractor has the right to sue only the surety on the payment bond without joining the contractor because a contract of suretyship is a direct liability of the surety to the subcontractor.1 When the contractor fails to perform, the surety becomes directly responsible at once — it is unnecessary for the subcontractor to establish that the contractor failed to carry out its contract before the obligation of the surety becomes absolute. Reprinted courtesy of Ira M. Schulman, Pepper Hamilton LLP and Emily D. Anderson, Pepper Hamilton LLP Mr. Schulman may be contacted at schulmani@pepperlaw.com Ms. Anderson may be contacted at andersone@pepperlaw.com Read the court decision
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Shifting the Risk of Delay by Having Float Go Your Way

July 05, 2021 — Christopher J. Brasco & Matthew D. Baker - ConsensusDocs
Critical path delay plays a central role in allocating responsibility for project delay. The interrelated concept of concurrency is also frequently determinative of entitlement on a range of claims including by owners for liquidated damages and by contractors for delay damages. What constitutes critical/concurrent delay, however, is hotly debated by scheduling experts. The lack of real consensus regarding how critical/concurrent delay should be determined and analyzed has created significant uncertainty in scheduling disputes. Indeed, courts have adopted differing and at times conflicting theories of concurrency that can produce divergent outcomes for the parties. In an effort to reduce uncertainty, stakeholders have increasingly adopted specialized contractual provisions and scheduling techniques which have significant implications for the evaluation of the companion concepts of criticality and concurrency. One such mechanism is float sequestration. Regardless of whether float sequestration is ultimately in the construction industry’s broader interest, stakeholders must be able to recognize its use and appreciate the implications for delay disputes on their projects. Simply defined, float is the number of days an activity can be delayed before affecting the project’s critical path (i.e., the longest chain of activities which determines the project’s minimal duration). Typically, only delays affecting the critical path can produce concurrent delay. Consequently, the concept of float is integral to understanding and resolving issues of both criticality and concurrency. Reprinted courtesy of Christopher J. Brasco, Watt, Tieder, Hoffar & Fitzgerald, LLP and Matthew D. Baker, Watt, Tieder, Hoffar & Fitzgerald, LLP Mr. Brasco may be contacted at cbrasco@watttieder.com Mr. Baker may be contacted at mbaker@watttieder.com Read the court decision
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How Finns Cut Construction Lead Times in Half

December 17, 2024 — Aarni Heiskanen - AEC Business
Rakennustieto organized a Q&A on December 5, 2024, titled “Halving Construction Lead Times—Responsible or Irresponsible?” The discussion focused on speeding up residential construction and renovations. The experts answering questions were representatives from two Finnish contractors (COfLOW and Fira), a client organization (HOAS), a building materials retailer (STARK), and a research institute. Can you halve construction lead time without sacrificing quality? Jaana Matilainen of Rakennustieto asked the panelists whether halving construction time is a realistic goal today, whether they can provide any examples, and if the speed-up has increased or decreased quality. 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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New York Team Secures Appellate Win on Behalf of National Home Improvement Chain

September 26, 2022 — Lewis Brisbois
New York, N.Y. (August 12, 2022) - New York Appellate Partner Nicholas P. Hurzeler, with New York Partners John J. Doody and David M. Pollack, obtained a significant appellate victory on behalf of a national home improvement chain when a New York Appellate Division panel for the Second Department reduced a jury verdict by more than half. In this matter, which was covered by Law360, the plaintiff was a customer at one of the chain's stores when he was involved in a confrontation with a man and his wife as they exited the store. The chain's loss prevention official told police that the plaintiff had assaulted the female customer. As a result of the incident, the plaintiff was arrested, spent the night in jail, and was arraigned at the same courthouse where he worked as a staff attorney while wearing only an undershirt and jogging shorts. He also had to disclose his arrest on his judgeship nomination application. The charges against him were ultimately dropped after the chain's loss prevention official told prosecutors that surveillance video showed that the female customer’s assault claims were false. The plaintiff subsequently sued the home improvement chain and its loss prevention official for allegedly causing his false arrest and interfering with his career goal of securing a New York state court judgeship. At the close of the trial in this case, the jury determined that the defendant was liable for battery and false imprisonment, and awarded the plaintiff $1.8 million for pain and suffering. Read the court decision
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Reprinted courtesy of Lewis Brisbois

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Weslaco, Texas Investigating Possible Fraudulent Contractor Invoices

March 19, 2014 — Beverley BevenFlorez-CDJ STAFF
The city of Weslaco in Texas fears that they have received “fraudulent invoices from the contractor of the…Valley Nature Center facility,” according to the Mid-Valley Town Crier. The project had been stalled due to “problems with numerous subcontractors claiming they hadn’t received payment.” Furthermore, “[c]onstruction is more than 14 months delayed and now halted as contractor GAS Enterprises demands more money from the city.” City Manager Leo Olivares informed GAS President Rene Salinas “that the city was aware of ‘forged requests for payments,’ ‘padding invoices’ and ‘requests for reimbursement for items, materials and labor that you did not pay,’” reported the Mid-Valley Town Crier. While Salinas did not respond to the Mid-Valley Town Crier when asked for a comment, he did send a letter to the city “arguing that none of the subcontractors had questioned the documents to him.” Read the court decision
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Construction Litigation Roundup: “It’s One, Two… Eight Strikes: You’re Out!”

May 28, 2024 — Daniel Lund III - Lexology
In a matter handled by this writer and the Phelps firm for various insurance companies, the insurers sought to be extricated from a $51,000,000+ arbitration and prevailed, securing a preliminary injunction from a federal district court in New Orleans. The dispute centers on the contract between the designer for the new terminal facility at the Louis Armstrong New Orleans International Airport and a claim by the airport board against the designer team as well as the insurers for the designers. The principal design contract – to which the insurers were not parties – contains an arbitration clause. The airport board initiated an American Arbitration Association arbitration against the designers and their insurers, and the insurers sought relief from the court. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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CISA Guidance 3.1: Not Much Change for Construction

June 22, 2020 — Laura Bourgeois LoBue - Gravel2Gavel Construction & Real Estate Law Blog
This week, the Cybersecurity & Infrastructure Security Agency (CISA) issued Version 3.1 of its Guidance on the Essential Critical Infrastructure Workforce. For the most part, CISA’s Guidance 3.1 did not change from Version 3.0 as it relates to construction. However, CISA added a few construction-related services to “Essential Critical Infrastructure”:

• “Workers who support the construction and maintenance of electric vehicle charging stations.”
• “Engineers performing or supporting safety inspections.”

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Reprinted courtesy of Laura Bourgeois LoBue, Pillsbury
Ms. LoBue may be contacted at laura.lobue@pillsburylaw.com

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Helsinki is Building a Digital Twin of the City

May 20, 2019 — Aarni Heiskanen - AEC Business
The capital of Finland first tested city modeling as long back as 1987. But the most recent model of the Kalasatama district demonstrates the new state-of-the-art possibilities of this technology: creation of a highly accurate digital twin of the city. My hosts, Helsinki’s city modeling specialists Jarmo Suomisto and Enni Airaksinen, showed me their latest projects. One of them offered a glimpse of history through a lens of the future. With 3D glasses on, I was able to experience the unrealized city plan made by Eliel Saarinen, the father of the world-renowned architect Eero Saarinen. The virtual model in question was a digitized version of a huge physical model from 1915. Being able to stroll the streets and fly over the roofs of the imagined city really made me understand how awesome the original design was. I had seen a scale model of this same plan while it was laid in the foyer of the Museum of Finnish Architecture many years ago, but this experience was quite different. 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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