Fairfield Connecticut Building Expert Directory

Design-Assist Collaboration/Follow-up Post

March 16, 2020 — John P. Ahlers - Ahlers Cressman & Sleight PLLC
Shortly after posting the blog article “Design-Assist an Ambiguous Term Causing Conflict in the Construction Industry,” I received an email from Brian Perlberg, the Executive Director and Senior Counsel for ConsensusDocs. He brought two ConsensusDocs forms to my attention: ConsensusDocs 541 Design Assist Addendum and ConsensusDocs 300 Integrated Form of Agreement (IFOA). In the ConsensusDocs model of “design-assist,” the lead design professional retains design responsibility but benefits from input and consultation from the construction team during design development. By contrast, in the design-build project delivery method, the constructor assumes design responsibility and liability for either the entire project design (design-build) or just a component of the design (delegated design). The ConsensusDocs 541 document goal is to provide “accurate information concerning program, quality, cost, constructability and schedule from all parties.” It provides a range of standard and optimal services during design development that essentially shifts the curve of selecting the construction manager (CM) and most importantly, special trade contractors, to much earlier in the process, perhaps as soon as the owner’s program is developed. This opens a world of possibilities for the design and construction team to collaborate early and often. The design professional, however, does not abdicate its design responsibility or authority in this process. The ultimate goal is to end the all-too-common wasteful cycle of design and redesign that is common in construction projects.[1] Read the court decision
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Reprinted courtesy of John P. Ahlers, Ahlers Cressman & Sleight PLLC
Mr. Ahlers may be contacted at john.ahlers@acslawyers.com

Exculpatory Provisions in Business Contracts

May 30, 2018 — David Adelstein - Florida Construction Legal Updates
An exculpatory provision in a contract is a provision that relieves one party from liability for damages. It shifts the risk of an issue entirely to the other party. Such a provision is generally drafted by the party preparing the contract that is looking to eliminate or disclaim liability associated with a particular risk, oftentimes a risk within their control. These provisions are also known as limitation of liability provisions because they do exactly that — limit liability as to a risk. For this reason, they can be useful provisions based on the context of certain risks, and are provisions that are included in business contracts (such as construction contracts). While such clauses are disfavored, they are enforceable if they are drafted clearly, unambiguously, and unequivocally. If they are unclear, ambiguous, or equivocal, they will construed against enforcement. See Obsessions In Time, Inc. v. Jewelry Exchange Venture, LLP, 43 Fla.L.Weekly D1033a (Fla. 3d DCA 2018) (finding exculpatory clause in lease ambiguous and, therefore, unenforceable as to lessor looking to benefit from the exculpatory clause). Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

Traub Lieberman Partner Ryan Jones Provides Testimony Before Florida Senate Committees

January 09, 2023 — C. Ryan Jones - Traub Lieberman
On December 12, Traub Lieberman Partner Ryan Jones provided testimony before two Florida Senate Committees during a Special Session to address the insurance crisis in Florida. Following the Special Session, the Florida Senate passed Senate Bill 2-A, which was designed to improve the property insurance marketplace for homeowners. Among other changes, the bill eliminates the one-way attorney’s fees provision in favor of insureds for lawsuits over disputed property claims and sets pre-requisites to filing bad faith lawsuits. The bill was recently signed into law by Florida Governor Ron DeSantis. Read the court decision
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Reprinted courtesy of C. Ryan Jones, Traub Lieberman
Mr. Jones may be contacted at rjones@tlsslaw.com

CDJ’s #2 Topic of the Year: Ewing Constr. Co., Inc. v. Amerisure Ins. Co., 2014 Tex. LEXIS 39 (Tex. Jan.17, 2014)

December 31, 2014 — Beverley BevenFlorez-CDJ STAFF
Ewing received quite a bit of attention around the blogosphere, and Tred R. Eyerly of Damon Key Leong Kupchak Hastert wrote a nicely succinct case summary on his blog, Insurance Law Hawaii: “In a much anticipated decision, the Texas Supreme Court ruled that a general contractor who agrees to perform its work in a good and workmanlike manner does not "assume liability" for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion.” Read the court decision
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As Single-Family Homes Get Larger, Lots Get Smaller

September 03, 2014 — Beverley BevenFlorez-CDJ STAFF
The National Association of Home Builders’ (NAHB) Eye on Housing demonstrated that though the “single-family homes have been generally getting larger,” the average lot size has decreased over the years. For instance, from 1992-1995, “[t]he median lot size of a new single-family detached home sold was an even 10,000 square feet.” However, by 2004, lot size had decreased to 8,833 square feet. It bounced up to 9,000 and then came down again. In 2013, median lot size was 8,720 square feet. Read the court decision
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Another Exception to Fraud and Contract Don’t Mix

January 18, 2021 — Christopher G. Hill - Construction Law Musings
Here at Construction Law Musings, we’ve discussed the fact that, in Virginia, the “economic loss rule” generally renders claims of fraud and construction contracts like oil and water. This is true in most states, including Florida. What this means is that as a general rule where any party is supposed to perform under a contract, and fails to do so, the Virginia courts will dismiss a fraud claim out of a desire to avoid turning any breach of contract (read “broken promise”) case into a claim for fraud. As you have likely gathered by the title of this post, there are exceptions. One is a properly plead Virginia Consumer Protection Act (“VCPA”) claim. Another, found in a recent Loudoun County, VA Circuit Court opinion in Madison v. Milton Home Systems Inc., is so called fraud in the inducement (in other words, inducing a person to enter the contract under false pretenses). In Madison the Court analyzed several counts based upon a modular home contract and so called “performance agreement” guarantying that the home would be installed by the manufacturer in the event that it’s installer failed to perform. 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

Court Voids Settlement Agreement in Construction Defect Case

September 01, 2011 — CDJ STAFF

A U.S. District Court Judge in Florida has ruled in favor of a company that sought to void a settlement agreement. The case, Water v. HDR Engineering, involved claims of construction defects at Florida’s C.W. Bill Young Regional Reservoir. The Tampa Bay Water Authority attributed these to both HDR Engineering’s design and Bernard Construction Company which had built the embankment. Bernard Construction filed a complaint against their subcontractor, McDonald.

Tampa Bay Water settled with Bernard Construction and McDonald, in an agreement that set a minimum and maximum settlement, but also would “prohibit Barnard and McDonald from presenting any evidence on several claims and positions of TBW, to require Barnard to call certain witnesses at trial, to preclude Barnard and McDonald from calling other witnesses, and to restrict the filing of trial and post-trial motions.” HDR Engineering moved to void the agreement as collusive.

The judge that the agreementÂ¬? contained “133 paragraphs of ‘Agreed Facts’ that the parties stipulated would survive any order declaring the Settlement Agreement void or unenforceable.” He characterized these as stipulating “that Barnard neither caused nor contributed to TBW’s damages.” HDR motioned that a summary judgment be given to Barnard Engineering.

The court found that “the evidence identified by TBW is patently insufficient to survive summary judgment.” Further, TBW’s expert initially held Barnard responsible for “lenses, pockets, streaks and layers within the embankment,” but then later withdrew this assigning the responsibility to HDR. Further, the court notes that, “TBW’s arguments that lenses, pockets, streaks, and layers in the soil wedge caused or contributed to its damages and that Barnard is liable for those damages have been foreclosed by the Agreed Facts.”

As TBW failed to provide sufficient evidence to withstand summary judgment, the court granted summary judgment, mooted the claim against McDonald, and terminated the agreement between TBW and the other parties.

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Contracts and Fraud Don’t Mix (Even for Lawyers!)

August 24, 2020 — Christopher G. Hill - Construction Law Musings
In prior posts here at Construction Law Musings, I have discussed how fraud and contracts are often like oil and water. While there are exceptions, these exceptions are few and far between here in Virginia. The reason for the lack of a mix between these two types of claims is the so-called “source of duty” rule. The gist of this rule is that where the reason money is owed from one party to another (the source of the “duty to pay”) is based in the contract, Virginia courts will not allow a fraud claim. The rule was created so that all breaches of contract, claims that are at base a failure to fulfill a prior promise and could, therefore, be considered to be based on a prior “lie,” would not be expanded to turn into tort claims. This rule has been extended to claims that most average people (read, non-lawyers) would consider fraud because there was no intent to fulfill the contract at the time it was signed. Just so you don’t think that lawyers are exempt from this legal analysis, I point you to a recent case where a law firm sued a construction client of theirs for failure to pay legal fees. In EvansStarrett PLC v. Goode & Preferred General Contracting, the Fairfax County Circuit Court considered a motion by the Plaintiff law firm seeking to add a count of fraud to its breach of contract lawsuit. The Court considered the following facts. 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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