FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Is Solar the Next Focus of Construction Defect Suits?

June 28, 2013 — CDJ STAFF
There’s been a rapid growth in the sale of solar panels, and that’s lead some industry observers to wonder if manufacturers have been cutting back on quality. Current use of solar is six times what it was in 2008, with more than forty percent of that in the last year. The growth shows no sign of stopping, either. The Solar Energy Industry Association expects the amount of power generated by solar to increase by more than two-thirds in 2013. With the oversupply, some fear that companies are relaxing their quality control. The New York Times found that there were widespread problems of defective units in solar cells, chiefly those manufactured in China. The Times article noted that at two solar plants in Spain, defect rates reached 34.5 percent. Some industry observers disagree. The Insurance Journal quoted Andy Klump, the CEO of Clean Energy Associates, a Shanghai firm that provides quality assurance in the solar industry, who said that if a business had a 34 percent failure rate, “they would be out of business in a heartbeat.” Mr. Klump described the Times article as “not realistic.” If the Times is right, Scott Turner, a construction insurance attorney, feels that the industry should ready itself for “a wave of large lawsuits.” Turner feels that “this litigation wave could make the battles over liability and insurance coverage for Chinese drywall seem like a small claims dispute.” Read the court decision
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Negligent Inspection Claim Against Supervising Design Professional / Consultant

August 07, 2023 — David Adelstein - Florida Construction Legal Updates
Can a negligence argument be created against consulting design professionals or entities that are involved in the inspection of a trade’s work? The recent opinion in Bautech USA, Inc. v. Resolve Equipment, Inc., 2023 WL 4186395 (S.D.Fla. 2023) contains an interesting fact pattern that touches upon this issue. While the case dealt with a motion to dismiss, it contains a number of issues that may be discussed in follow-up postings. Here, a prime contractor was hired by Broward County, Florida to install offshore reef mitigation units. The contractor entered into a subcontract with a concrete fabricator to fabricate the reef mitigation units. The contractor also separately hired consultants to inspect the units. The contractor and its consultants rejected the units even after the fabricator implemented design revisions. The fabricator was then terminated and not paid for contract work plus revisions it implemented to finished units. The fabricator sued the contractor and the contractor’s consultants for non-payment under many (ten) different theories of liability claiming it was damaged to the tune of millions of dollars. 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

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What I Love and Hate About Updating My Contracts From an Owners’ Perspective

July 25, 2022 — ConsensusDocs
The Construction Owners Association of America (COAA) is the largest association of construction owners in the United States. COAA just held its Spring Connect conference in downtown Baltimore on the University of Maryland, Baltimore (UMB) campus. One session featured “What I Love and Hate About Updating My Contracts from an Owners’ Perspective.” ConsensusDocs’ Executive Director & Senior Counsel Brian Perlberg spoke on a panel with Joe Cleves of Taft Law and Pen Wolf from the Cleveland Clinic. Pen Wolf from Cleveland Clinic outlined the process he used to update his contracts recently. The Cleveland Clinic builds facilities annually and owns different facilities at different locations. The clinic employs over 75,000 employees. For an owner with a broad reach like the Cleveland Clinic, Wolf recommended using outside counsel with construction expertise to update contracts. He concluded that while it was a significant effort, the endeavor to update the Clinic’s contracts was absolutely worth the time commitment and expense. Wolf shared that updating the Clinic’s contracts has generated positive reviews internally and externally. Now their written agreements better reflect their business practices in their construction design and construction program. Read the court decision
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Reprinted courtesy of ConsensusDocs

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What Counts as Adequate Opportunity to Cure?

June 13, 2022 — Christopher G. Hill - Construction Law Musings
qimono @ PixabayHere at Musings, we like to discuss (likely more than readers would like) the fact that in Virginia, the contract is king and its terms will be looked at carefully by the courts. One of those provisions that will be looked at carefully is the so-called “cure period.” The “cure period” is the time that a subcontractor has to fix any non-compliant construction after receiving notice of any deviation from the contract documents that must be fixed. In United States ex rel Allan Myers VA, Inc. v. Ocean Construction Services, Inc. the federal court for the Eastern District of Virginia examined what it means to grant a proper opportunity to cure. The Ocean Construction Services case arises from a contractual dispute between Allan Myers VA Inc. and Ocean Construction Services Inc., or OCS, involving renovation work performed in sections of Arlington National Cemetery. Presently before the court is Myers’ motion for partial summary judgment, arguing that the undisputed facts demonstrate that it was not provided with a three-day cure period, a contractual prerequisite to OCS terminating the subcontract for default. 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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Collapse Claim Fails Due To Defectively Designed Roof and Deck

May 28, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The insured's claim for collapse of his roof and deck failed due to defective design and other exclusions under the policy. Dudar v. State Farm & Cas. Co., 2024 U.S. Dist. LEXIS 52706 (N.D. Ga. Feb. 6, 2024). The insured submitted a claim to State Farm for damage to the roof ("Roof Claim"). State Farm's adjuster placed a ladder on the deck to access the roof and a portion of the deck collapsed. The insured then reported a claim to State Farm for damage to the deck ("Deck Claim"). The claims were denied and suit was filed. The roof had leaked on several occasions prior to submission of the Roof Claim. On February 25, 2022, the insured discovered that a branch had cut a hole in the tarp, causing water to leak into the home. The insured performed repairs on the roof. On March 8, 2022, a storm caused more water to seep through the tarp into the ceilings and walls. Thereafter, the Roof Claim was submitted. The damage from the leaking roof and the deck collapse were caused by rotting. The rotting, in turn, was caused by a combination of defective building design and resulting water damage from rain and storms over the years. The roof and deck were constructed to provide mutual support to one another. The roof did not contain an adequate slope, which caused water to seep down into the walls and flooring rather than to flow downward and away from the property. Over time, penetrating water caused portions of the roof, the floor, and the supporting wall between the roof and deck to rot. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Coverage for Construction Defects Barred By Exclusion j (5)

April 15, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Texas Court Appeal reversed a trial court judgment which found coverage in favor of the contractor based upon exclusion j(5). Dallas Nat'l Ins. Co. v. Calitex Corp., 2015 Tex. App. LEXIS 2002 (Tex. Ct. App. March 3, 2015). Turnkey Residential Group, Inc., was the contractor to construct a twelve-unit townhome complex in Dallas. The owner of the project was Calitex Corporation. Construction began on November 2006. The project was to be completed by Turnkey by October 27, 2007. Calitex filed suit against Turnkey and some of its subcontractors in February 2008. Calitex alleged problems with Turnkey's work included: (1) the stone exterior was not properly treated and leaked, and some areas were left uncovered with stone; and (2) windows leaked. It was further alleged that the quality of materials, labor and craftsmanship did not meet the standards of the contract and resulted in damages. Turnkey submitted a notice of claim to its insurer, Dallas National Insurance Company (DNIC). Coverage was denied. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Insuring Lease/Leaseback Projects

August 19, 2024 — David G. Jordan & Jeffrey J. Vita - Saxe Doernberger & Vita, P.C.
Overview Several states utilize a unique statutory mechanism to allow school districts to finance the construction of public-school facilities. This arrangement (known as a “lease-leaseback agreement”) allows a school district to lease property to a contractor/developer, who then constructs or renovates a school facility on the property. Once the work is completed, the contractor/developer leases the school building back to the school district. The school district then makes lease payments over time, often many years, which can be structured in various ways to spread out the cost of construction. The arrangement typically requires a site lease for the land leased to the contractor/developer, a facilities lease for the lease-back of the school building to the school district and a traditional construction agreement. In some ways, the arrangement resembles a Public-Private Partnership (PPP) whereby a public entity collaborates with a private entity for the purpose of financing and delivering a project traditionally provided solely by the public sector. Reprinted courtesy of David G. Jordan, Saxe Doernberger & Vita, P.C. and Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. Mr. Jordan may be contacted at DJordan@sdvlaw.com Mr. Vita may be contacted at JVita@sdvlaw.com Read the court decision
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Failure to Meet Code Case Remanded to Lower Court for Attorney Fees

May 24, 2011 — CDJ STAFF

Judge Patricia J. Cottrell, ruling on the case Roger Wilkes, et al. v. Shaw Enterprises, LLC, in the Tennessee Court of Appeals, upheld the trial court’s conclusion that “the builder constructed the house in accordance with good building practices even though it was not in strict conformance with the building code.” However, Judge Cottrell directed the lower court to “award to Appellants reasonable attorneys' fees and costs incurred in their first appeal, as determined by the trial court.”

Judge Cottrell cited in her opinion the contract which specified that the house would be constructed “in accordance with good building practices.” However, after the Wilkes discovered water leakage, the inspections revealed that “that Shaw had not installed through-wall flashing and weep holes when the house was built.” The trial court concluded that:

“Separate and apart from the flashing and weep holes, the trial court concluded the Wilkeses were entitled to recover damages for the other defects they proved based on the cost of repair estimates introduced during the first and second trials, which the court adjusted for credibility reasons. Thus, the trial court recalculated the amount the Wilkeses were entitled to recover and concluded they were entitled to $17,721 for the value of repairs for defects in violation of good business practices, and an additional 15%, or $2,658.15, for management, overhead, and profit of a licensed contractor. This resulted in a judgment in the amount of $20,370.15. The trial court awarded the Wilkeses attorneys” fees through the Page 9 first trial in the amount of $5,094.78 and discretionary costs in the amount of $1,500. The total judgment following the second trial totaled $26,973.93.”

In this second appeal, Judge Cottrell concluded, that “the trial court thus did not have the authority to decide the Wilkeses were not entitled to their attorneys” fees and costs incurred in the first appeal.”

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