Fairfield Connecticut Building Expert Directory

Quick Note: COVID-19 Claim – Proving Causation

August 03, 2020 — David Adelstein - Florida Construction Legal Updates
In certain jurisdictions, the number of people testing positive for COVID-19 is on the rise. As this occurs, there is the possibility that a construction project will have to deal with one or more workers testing positive. That is the current reality. If the dialogue has not occurred before, now is the time to discuss any enhanced measures—above OSHA guidelines—that could be implemented to address this reality and mitigate the risk. Part of the reality, though, is that regardless of the enhanced measures and mitigation, it is impossible to truly prevent this risk. No one disputes COVID-19. There may be a dispute as to whether COVID-19 constitutes a force majeure event or some other event, however, before you start labeling it, you still NEED TO PROVE the impact caused by COVID-19. There needs to be a cause-and-effect relationship so you can address (i) how this impacted the critical path of your schedule and/or (ii) how this impacted labor productivity. In other words, you need to prove causation. Stating there was a delay or loss of productivity without establishing the cause-and-effect relationship (i.e, causation) provides no value because it does not support the production impact or time extension and, without either, there is no basis for additional compensation (even if you establish it should be deemed an excusable, compensable delay). 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

University of California Earthquake Report Provides List of Old Concrete Buildings in LA

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
According to a list provided to the city of Los Angeles by the University of California, there are “about 1,500 old concrete buildings that are potentially at risk of collapse during an earthquake,” the Los Angeles Times reported. The list can help the city identify “concrete buildings most likely to fail in an earthquake.” The report, however, “does not amount to a list of dangerous buildings,” the university scientists told the Los Angeles Times. It is a list of concrete buildings built before 1980. Some of the “buildings are vulnerable, others are not.” Concrete buildings pose a potentially dangerous threat, reported the Los Angeles Times: “After the Northridge earthquake caused two concrete buildings to collapse and severely damaged others, structural engineers warned that the collapse of a single concrete building ‘has the potential for more loss of life than any other catastrophe in California’ since the 1906 San Francisco earthquake.” Eric Garcetti, Los Angeles Mayor, has asked Lucy Jones, a U.S. Geological Survey seismologist, to act as his science advisor on earthquake issues. Garcetti has asked Jones “to come up with recommendations by the end of the year on retrofitting issues, including how to get privately owned concrete buildings retrofitted.” Read the court decision
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Blue-Sky Floods Take a Rising Toll for Businesses

March 04, 2019 — Eric Roston - Bloomberg
When American colonists planned downtown Annapolis, Maryland in 1695, they wanted easy access to the sea. Almost 325 years later, the sea is now closer than ever. It’s so close, in fact, that 16 small businesses lost roughly 2 percent of their revenue in 2017. In a first-of-its-kind study, Stanford University and Naval Academy researchers looked at the effect of sea-level rise on a single city-block. Specifically, they examined sunny-day floods—inundation that occurs when infrastructure built for lower waters is no longer sufficient to keep back the highest tides—at a central parking lot at City Dock. As sea levels rise, these “nuisance floods” are becoming more common. From the 1950s to the early 2000s, the days of flooding in the 27 most vulnerable cities across the U.S. grew from two per year to nearly 12. Read the court decision
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Reprinted courtesy of Eric Roston, Bloomberg

Construction Litigation Roundup: “Too Soon?”

July 02, 2024 — Daniel Lund III - Lexology
Not at all, said the Louisiana Supreme Court, in a case dealing with the timing of filing of a claim for indemnity. In the case, a Louisiana intermediate appellate court had earlier ruled in very short order on a supervisory writ application (reversing the trial court) that a claim for indemnity (based upon an indemnity clause in a construction contract) was “premature” until a “determination that damages are actually owed and the indemnitee sustains a loss. … At this time, the lawsuit is still pending against [the putative indemnitee], and no determination of liability had been made; thus, there is no obligation for indemnity and defense costs. … Stated differently, indemnity (or reimbursement) is not available at this time because [the indemnitee] has not discharged a liability which [the indemnitor] should have assumed or otherwise suffered any loss or damages. … Accordingly, [the] cause of action for indemnity and defense is not ripe for adjudication.” Bennett v. Demco Energy Servs., LLC, 2023-0581 (La. App. 1 Cir. 09/11/23); 2023 La. App. LEXIS 1449. 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

Express Warranty Trumping Spearin’s Implied Warranty

March 06, 2022 — David Adelstein - Florida Construction Legal Updates
Be mindful of that express warranty provision in your contract. It could result in an outcome that you did not consider or factor when submitting your proposal or agreeing to your contract amount. An express warranty could have the effect of eviscerating the argument that you performed your scope of work pursuant to the plans and specifications. In other words, the applicability of the Spearin doctrine could be rendered moot based on express warranty language in your contract that is fully within your control because you do not have to agree to that language. Under the Spearin doctrine:

[W]hen a ‘contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specification.’ Spearin and its progeny set forth a default rule of fundamental fairness that when a general contractor requires a subcontractor to follow certain plans and specifications, the general contractor impliedly warrants that those plans and specifications are ‘free from design defects.’ Put simply, Spearin protects subcontractors from liability for simply following the general contractor’s direction and requirements. However, the implied warranty set forth in Spearin and its progeny may be overcome by express agreement. Where a general contractor and subcontractor expressly agree to allocate the risk of a defective product to the subcontractor, that express agreement must prevail over Spearin’s implied warranty. Lighting Retrofit International, LLC v. Consellation NewEnergy, Inc., 2022 WL 541156 (D. Md. 2022) (internal citations omitted).

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

New Addition to the ASCE/SEI 7-22 Standard Protects Buildings from a 500-year Flood Event

June 05, 2023 — The American Society of Civil Engineers
Reston, VA — The American Society of Civil Engineers (ASCE) released a new update to their most widely used standard today, ASCE/SEI 7-22 Minimum Design Loads and Associated Criteria for Building and Other Structures. As the increasing frequency of severe storms puts strain on communities across the globe, the design standard's new flood load provisions will protect against 500-year flood events, which is a significant improvement to the 100-year flood hazard referenced in the previous version. The update — which is available in a supplement as a free download — is a significant revision of the design provisions in Chapter 5 to strengthen building resilience against the flood hazard. The ASCE 7 national loading standard is an integral part of building codes in the United States and around the globe. "For more than 30 years, the ASCE 7 standard has been the authoritative source for the specification of minimum design loads and related criteria in the civil engineering community," said Tom Smith, ASCE Executive Director. "To ensure structures continue to be safe for the public, it is imperative that the standards we rely on are updated to account for emerging risks to the built environment. This Supplement is the most significant change to the standard's flood load provisions since the inception of ASCE 7 and will improve the safety and reliability of structures across the globe." ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel. Read the court decision
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Doctrine of Merger Not a Good Blend for Seller of Sonoma Winery Property

April 15, 2015 — Kristen Lee Price and Lawrence S. Zucker II – Haight Brown & Bonesteel LLP
In Ram’s Gate Winery, LLC v. Joseph G. Roche, et al. (No. A139189 & A141090, filed 4/9/15) (Ram’s Gate), the California Court of Appeal for the First Appellate District held the doctrine of merger did not extinguish a seller’s contractual duty to disclose potentially hazardous seismic conditions on a Sonoma winery property. In Ram’s Gate, the buyer of the property filed a lawsuit alleging the seller failed to disclose information relating to earthquake issues prior to the close of escrow. In the parties’ “Purchase and Sales Agreement” (Purchase Agreement) the seller agreed to disclose any information known to it regarding “known geological hazards . . . soil reports . . . geotechnical reports” and other facts “having effect on the value of the ownership or use of the property.” The seller, however, argued this disclosure warranty did not survive the escrow period because it did not expressly provide for survival while other provisions in the Purchase Agreement did. Reprinted courtesy of Kristen Lee Price, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Ms. Price may be contacted at kprice@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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2013 May Be Bay Area’s Best Year for Commercial Building

November 20, 2013 — CDJ STAFF
A tech boom has resulted in something of a commercial building boom for the Bay Area. The region will see about $6 billion in commercial construction projects during 2013. This is better than the totals for 2012, 2011, and 2009. During that period, however, 2010 set a record for the area with $6 billion of construction. Some estimates see 2013 beating that with as much as $6.7 billion in construction by year’s end. The surge has been attributed to job creation. One Bay-area company, Infoblox, moved into a new office complex, after extensive renovation. The company had 250 employees and now has room to expand to 500 employees. But 2014 could be even better. Apple is about to begin construction of its new campus, which is expected to cost the company $5 billion. Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES