FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

“Professional Best Efforts” part 2– Reservation of Rights for Engineers who agree to “best” efforts? (law note)

April 20, 2017 — Melissa Dewey Brumback - Construction Law in North Carolina
Recently, a reader reached out to me to ask about case examples of an engineer losing his insurance coverage because he agreed to a “heightened” or “best” standard of care. The reader stated that he was an insurance adviser who handled various construction professional coverages, and that in his experience it was very unusual to deny or limit damages because of a heightened standard of care. This comment led me to an informal survey of several insurance brokers that I deal with, and the general consensus is that instead of outright denying a claim, most E&O insurers will issue a “reservation of rights” letter. What that means is that the insurance company will defend the claim (i.e., pay for your lawyer to defend you and your Firm), but with the understanding that they are (potentially) denying any liability for any adverse money judgment against you. Inevitably, most such cases settle, but if they do not, the question then is whether the heightened duty created part of the damages. The insurer may ask to intervene in the lawsuit to ask the jury that question, in an effort to limit its share of the damages. Read the court decision
Read the full story...
Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett PLLC
Ms. Brumback may be contacted at mbrumback@rl-law.com

---

Construction Litigation—Battles on Many Fronts

May 07, 2015 — Craig Martin – Construction Contractor Advisor
When you are involved in construction litigation, you have battles on several fronts, including those against subcontractors, owners, insurers and the court. Shoring up your defenses on each of these fronts is imperative, or you may lose the battle or, worse yet, the war. A recent opinion out of the Eleventh Circuit Court of Appeals (overseeing federal courts in Alabama, Florida and Georgia) Carithers v. Mid-Continent Casualty Company, illustrates the various battle fronts involved in a construction case. In this case, the Carithers (Home Owner) sued their homebuilder, Cronk Duch Miller & Associates (Contractor) in state court after discovering multiple defects with their home. Battle Front #1—Claim Against Contractor The Contractor and Home Owner entered into a consent judgment for approximately $90,000.00 and the Contractor assigned its claim against its insurer to the Home Owner. It is unlikely that the Contractor paid the $90,000.00 judgment. The Home Owner likely agreed not to collect on the $90,000.00 in exchange for the chance to pursue the Contractor’s claim against its insurer. Read the court decision
Read the full story...
Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

---

The Future for Tall Buildings Could Be Greener

October 01, 2013 — CDJ STAFF
Skidmore, Owens and Merrill made its reputation by creating iconic structures of steel, concrete, and glass, but in a new report, the firm puts forth ways in which the first item would be wood. Building codes in many cities stipulate that buildings taller than four stories be built of steel and concrete, but the firm says that it has come up with a way of building structures of 30 stories or more using wood. The tallest wood-framed building currently is only ten stories tall. In order to calculate a comparison, Skidmore, Owens and Merrill designed a forty-two story building based on the design of an existing apartment building. Actually building it would require almost 4 million board-feet of wood. Unlike a typical single-family home (and its 20,000 board-feet of wood), these building would use glue-laminated timber and slabs. The study found that the building would weigh less than half as much, allowing a less massive foundation. If the wood came from sustainable sources, its environmental impact would be drastically reduced. They calculated that instead of 9,500 tons of CO2 emissions for the conventional tower, the wood structure would be responsible for only 2,100 tons of emissions. Skyscrapers will continue to be a feature of large cities. But instead of urban canyons of steel and concrete, in the future those towering buildings might be made of wood. Read the court decision
Read the full story...
Reprinted courtesy of

---

Not So Fast, My Friend: Pacing and Concurrent Delay

April 25, 2022 — William E. Underwood - ConsensusDocs
When critical path activities are delayed by the owner (or another party), contractors will sometimes “pace,” or slow down, other activities to match the owner-caused delay. After all, why should the contractor hurry up and wait? But paced activities can often appear as concurrent delays on a project’s overall schedule. And all too often, contractors fail to contemporaneously document their efforts to pace work. Not only can this create avoidable disputes with owners and other contractors, but it can also create future roadblocks to the recovery of delay damages. This article examines the interplay between pacing and concurrent delay[1] and what contractors should do to minimize risk and preserve their rights to obtain more than a simple time extension for project delays. Pacing versus Concurrent Delay As a basic matter, most contracts allocate responsibility/liability for a schedule delay to the party that caused the delay. For example, if an owner is contractually required to provide equipment for a contractor to install, then the owner likely bears responsibility for any delays caused if the equipment is delivered late. If, however, the contractor was also behind schedule on other activities during this time and the project would have been delayed regardless of the owner’s late deliveries, then the delay is probably concurrent. And the contractor will generally be entitled to only an extension of time, and no other monetary relief. Read the court decision
Read the full story...
Reprinted courtesy of William E. Underwood, Jones Walker LLP (ConsensusDocs)
Mr. Underwood may be contacted at wunderwood@joneswalker.com

---

What Types of “Damages Claims” Survive a Trustee’s Sale?

February 28, 2018 — Ben Reeves – Real Estate Litigation blog / Snell & Wilmer
Introduction Arizona’s trustee’s sale statutory scheme provides for the waiver of all defenses and objections to a trustee’s sale that: (i) are not raised prior to the sale, and (ii) do not result in an injunction against the sale going forward. See A.R.S. § 33-811(C). In other words, if you have an objection to a trustee’s sale, you must seek and obtain an injunction prior to the sale or your objection will be waived. Arizona’s Court of Appeals previously held that notwithstanding this statutory waiver, “common law” defenses to repayment of the debt survive a non-judicial foreclosure even in the absence of an injunction prior to the sale. See Morgan AZ Financial, L.L.C. v. Gotses, 235 Ariz. 21, 326 P.3d 288 (Ct. App. 2014). Our analysis of the Morgan decision can be found here. In Zubia v. Shapiro, 243 Ariz. 412, 408 P.3d 1248 (2018), the Arizona Supreme Court revisited the issue of what claims survive a trustee’s sale, and clarified that if a person fails to enjoin a trustee’s sale prior to its occurrence, then that person waives any and all damages claims dependent upon a trustee’s sale. That person does not, however, waive damages claims that are independent of the sale. Thus, determining what types of claims are “dependent” versus “independent” of a trustee’s sale is of critical importance to lenders and borrowers alike. Read the court decision
Read the full story...
Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

---

Lucky No. 7: Seventh Circuit Court of Appeals Issues Pro-Policyholder Decision Regarding Additional Insured Coverage for Upstream Parties

November 02, 2020 — Daniela Aguila - Saxe Doernberger & Vita
In Scottsdale Ins. Co. v. Columbia Ins. Group, Inc,1 the Seventh Circuit Court of Appeals recently held that a subcontractor’s insurer was obligated to defend and indemnify the project owner’s insurer for damages associated with the subcontractor's employee's personal injury lawsuit where the underlying complaint alleged negligence by the additional insureds. The case cements the notion that under Illinois law, one can significantly benefit from the facts presented in third party complaints as a basis for additional insured coverage. Rockwell Properties (“Rockwell”) was the project owner, along with Prairie Management & Development (“Prairie”), the general contractor, on a construction project in Chicago. Prairie subcontracted HVAC services to TDH Mechanical (“TDH”). When an employee of TDH Mechanical sustained serious injuries performing work at a construction site, a suit was lodged against Rockwell and Prairie in state court. The lawsuit did not bring any claims against TDH but instead alleged that both Rockwell and Prairie had negligently failed to supervise the subcontractors’ work on-site, thus contributing to the worker’s injuries. Read the court decision
Read the full story...
Reprinted courtesy of Daniela Aguila, Saxe Doernberger & Vita
Ms. Aguila may be contacted at dag@sdvlaw.com

---

Connecticut’s New False Claims Act Increases Risk to Public Construction Participants

April 02, 2024 — Fred Hedberg & William Stoll - Construction Law Zone
After several decades, Governor Ned Lamont signed a bill into law, effective July 1, 2023, An Act Concerning Liability for False and Fraudulent Claims, Public Act No. 23-129, eliminating language that previously limited enforcement of Connecticut’s False Claims Act to claims relating to a state-administered health or human services program. The revisions dramatically expanded potential liability under the False Claims Act, allowing both private citizens and the Attorney General to bring actions under the Act in any context, including the construction industry. Consequently, contractors, subcontractors, suppliers and design professionals on public construction projects in Connecticut must be familiar with this newly enacted law and take steps to reduce the risks of doing business on such projects. Reprinted courtesy of Fred Hedberg, Robinson & Cole LLP and William Stoll, Robinson & Cole LLP Mr. Hedberg may be contacted at fhedberg@rc.com Mr. Stoll may be contacted at wstoll@rc.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Meet the Forum's In-House Counsel: RACHEL CLANCY

November 16, 2023 — Jessica Knox - The Dispute Resolver
Company: Lobar, Inc. Email: rachel.clancy@lobar.com Website: www.lobar.com College: York College of Pennsylvania (Bachelor of Science in Marketing, 2001) Graduate School: Florida Institute of Technology (MBA in Acquisition and Contract Management, 2004) Law School: Penn State University, Dickinson School of Law (JD 2007) States Where Company Operates/Does Business: Headquarters are in Dillsburg, PA; construction projects located in Pennsylvania, Maryland, New York, and West Virginia Q: Describe your background and the path you took to becoming in-house counsel. A: Before law school, I spent three years as a Contract Specialist writing construction contracts for the Department of Defense, Naval Facilities Command in New Jersey. I had no idea I'd eventually find my way back to construction. After law school, I spent five years in the business department of a local law firm handling corporate formations, a variety of commercial contracts, and learning some real estate law. After another four years in-house with a data and marketing company in Harrisburg, I accepted my current position with Lobar, where I've been for the last seven years. Read the court decision
Read the full story...
Reprinted courtesy of Jessica Knox, Stinson LLP
Ms. Knox may be contacted at jessica.knox@stinson.com

---