Fairfield Connecticut Building Expert Directory

Clearly Determining in Contract Who Determines Arbitrability of Dispute

April 26, 2021 — David Adelstein - Florida Construction Legal Updates
As you know from prior postings: “Arbitration provisions are creatures of contract and must be construed ‘as a matter of contract interpretation.’ ” Fallang Family Limited Partnership v. Privcap Companies, LLC, 46 Fla.L.Weekly D639e (Fla. 4th DCA 2021) (citation omitted). Thus, if you prefer to arbitrate potential disputes, instead of litigating potential disputes, you want to include an arbitration provision in your contract. While there are positives and negatives to arbitration, no different than litigation, these positives and negatives should be considered during the contract negotiation process when dealing with the dispute resolution process in the contract. Generally, under the law, the arbitrability of a dispute is determined by the court. However, this can be deferred to the arbitrator with clear and unmistakable language in the contract. By way of example, the American Arbitration Association includes a rule that allows an arbitrator to rule on the arbitrability of the dispute, i.e., the claims asserted are subject to the governing arbitration provision in the contract. Recent law has suggested that if the objective is to authorize an American Arbitration Association arbitrator to make this determination, the contract clearly and unmistakably needs to state this intent and generally referring to the American Arbitration Association rules is not good enough. For this reason, I have included in arbitration provisions language that specifically states, “In the event of any dispute as to the arbitrability of any claim or dispute, the parties agree that an appointed arbitrator within the American Arbitration Association shall make this determination.” I have also included in arbitration provisions the converse so that if there is a dispute as to the arbitrability of a claim or dispute, the court, and not the arbitrator, will make this determination. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

One World Trade Center Tallest Building in US

November 13, 2013 — CDJ STAFF
It’s official! The tallest building in the United States is in New York. For forty years, the tallest building in the United States has been the Willis Tower in Chicago (better known by its former name, the Sears Tower). Now, the Council on Tall Buildings and Urban Habitat has decreed that One World Trade Center edges it out with its 1,776 feet of height, surpassing the Willis by 325 feet. There is a caveat. The antennas on the top of the Willis building aren’t counted in. The mast on the top of One World Trade Center is, and it adds 441 feet to the height of the building. If the mast weren’t counted, One World Trade Center would be 116 feet shorter than the building in Chicago. Read the court decision
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The Flood Insurance Reform Act May be Extended to 2016

April 07, 2011 — Beverley BevenFlorez CDJ STAFF

The Flood Insurance Reform Act of 2011 (H. R. 1309) has been referred to the House Committee on Financial Services—the first step in the legislative process. The bill, if passed, would extend the program to September 30, 2016. It is currently slated to be terminated September 30 of this year. The bill also contains changes to premium rates, mapping protocols, and privatization initiatives.

H. R. 1309 has garnered the support of several Insurance organizations. Leigh Ann Pusey, president and CEO of the American Insurance Association (AIA), sent a letter of support to the Chair and Ranking member of the House Financial Services Subcommittee. “AIA has advocated for a long term reauthorization of the NFIP to protect consumers and help increase stability for real estate transactions and policyholders,” Pusey said. “AIA believes the five-year extension contained in HR 1309, will provide certainty in the flood program thereby increasing consumer and business confidence in the NFIP.”

Jimi Grande, senior vice president of federal and political affairs for the National Association of Mutual Insurance Companies (NAMIC) spoke out in support of the bill. “For the NFIP to survive, the prices for flood insurance must reflect the actual costs of flood risk for a property,” Grande said. “HR 1309 will provide that transparency. In addition, the Technical Mapping Advisory Council will give communities a voice in the flood mapping process, fostering a better understanding of what flood maps represent and how they are made.”

Read H. R. 1309...
Read the American Insurance Association statement...
Read the NAMIC Press Release...

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Attorneys' Fee Clauses are Engraved Invitations to Sue

April 19, 2021 — David M. McLain – Colorado Construction Litigation
As we start another trip around the sun, hopefully you are in the process of updating your form contracts, including purchase and sale agreements and express written warranties. Because the law and litigation landscape continually changes, it is a good practice to periodically update the forms you use in order to give yourself a fighting chance if and when the plaintiffs' attorneys come knocking on your door. As you engage in this process, I hope that you will take a critical look at whether your contracts include a prevailing party attorneys' fees clause and, if so, whether you should leave it in there. In Colorado, parties are entitled to recover attorneys' fees only if provided for by statute or by contract. Historically, plaintiffs' attorneys relied on two statutes, the Colorado Consumer Protection Act and Colorado's Statutory Interest statute, to recover attorneys’ fees in construction defect cases. In 2003, the Colorado legislature capped treble damages and attorneys' fees under the Colorado Consumer Protection Act at $250,000, effectively restricting plaintiffs' attorneys from relying on the CCPA to recoup their attorneys' fees, especially in large cases. In 2008, the Colorado Supreme Court issued its decision in Goodyear v. Holmes, stating that plaintiffs can only claim prejudgment interest under Colorado's Statutory Interest statute, in cases where they have already spent money on repairs, not when they are suing for an estimate of what repairs will cost in the future. Without either the CCPA or the prejudgment interest statute to recover attorneys' fees, plaintiffs' attorneys most often now rely on the prevailing party attorney fee clause in contracts between the owner and builder, or in the declaration of covenants, conditions and restrictions in situations where a claim is prosecuted by an HOA. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

Real Estate & Construction News Round-Up 04/20/22

May 02, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
Construction defects emerge in pandemic-era buildings, investor confidence is improving in China’s real estate market, the proptech field continues to show significant signs of growth, and more.

Investor confidence in China’s real estate market is improving, with bond trading volumes and prices rising over the last few weeks, but the market is not projected to resume its high growth rate of the past. (Weizhen Tan & Evelyn Cheng, CNBC)
The economic shock caused by soaring mortgage rates over the past few weeks has dramatically increased mortgage payments for new homebuyers. (Lance Lambert, Fortune)
With the metaverse economy projected to be worth between $8 and $13 trillion by 2030, blockchain technology serves as a key driver for virtual real estate sales, allowing for “true” ownership of a property. (Robert Koonin, Dan Jasnow, & Kinnon McDonald, TFL)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

Modular Homes Test Energy Efficiency Standards

August 06, 2014 — Beverley BevenFlorez-CDJ STAFF
The Systems Building Research Alliance (SBRA) will be putting three different energy standards to the test, according to Big Builder. Clayton Homes has been selected to build three modular homes, which will be used in a 15-month energy performance test conducted by Southern Energy Homes (SEHomes). Each home will comply with a different standard: “one complies with the U.S. Department of Housing and Urban Development’s (HUD) thermal standards, one is an Energy Star-qualified home and one meets the DOE requirements for the Challenge Home Program, also known as a DOE Zero Energy Ready Home.” Testing is expected to be completed July 2015. Read the court decision
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EEOC Issues Anti-Harassment Guidance To Construction-Industry Employers

July 22, 2024 — Christopher Kelleher & Andrew Scroggins - The Construction Seyt
Seyfarth Synopsis: The Equal Employment Opportunity Commission (“EEOC”) has issued guidance tailored to the construction industry regarding compliance with anti-harassment laws. This lines up with our prediction in early 2024 that the EEOC had put the construction industry squarely in its sights. The guidance is important for construction-industry leaders and employers to understand to prevent and remedy workplace harassment, and to avoid potential harassment liability. On June 18, 2024, the EEOC issued its Promising Practices for Preventing Harassment in the Construction Industry. This guidance provides key recommendations that construction-industry leaders and employers should consider implementing to prevent and address harassment in the workplace, and avoid being the target of the EEOC’s enforcement efforts. The guidance is intended to supplement the EEOC’s Strategic Enforcement Plan (“SEP”) for fiscal years 2024-2028, which provides direction on the EEOC’s current objectives, principles, and enforcement efforts – among them, increasing diversity in the construction industry and remedying harassment. (We’ve written previously about the proposed and final SEP.) Reprinted courtesy of Christopher Kelleher, Seyfarth and Andrew Scroggins, Seyfarth Mr. Kelleher may be contacted at ckelleher@seyfarth.com Mr. Scroggins may be contacted at ascroggins@seyfarth.com Read the court decision
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Public Law Center Honors Snell & Wilmer Partner Sean M. Sherlock As Volunteers For Justice Attorney Of The Year

June 10, 2019 — Sean M. Sherlock – Snell & Wilmer Real Estate Litigation Blog
Snell & Wilmer is pleased to announce the Public Law Center (PLC) has named Orange County partner Sean M. Sherlock as the 2019 Volunteers for Justice Attorney of the Year. Sherlock donates his time and knowledge to his community through his pro bono work with PLC. From 2015 to earlier this year he headed a team of attorneys who represented an elderly PLC client in danger of losing her mobile home. The client is the primary caregiver for her disabled grandson who survives solely on a fixed income of disability and Social Security, causing her to fall behind on her space rent for her mobile home. In addition to pro bono work, Sherlock is an avid community volunteer, spending his time supporting organizations that have included Big Brothers/Big Sisters, Orange County Coastkeeper, AYSO and the Boy Scouts of America. “One of the most rewarding aspects of being an attorney is being able to obtain justice for the vulnerable and defenseless in our society who would otherwise be unable to navigate our legal system,” said Sherlock. “My relationship with the PLC has given me many opportunities to do some very gratifying work, and it is a real pleasure working with and learning from the excellent staff attorneys at PLC.” Read the court decision
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Reprinted courtesy of Sean M. Sherlock, Snell & Wilmer
Mr. Sherlock may be contacted at ssherlock@swlaw.com

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