Fairfield Connecticut Building Expert Directory

General Contractors: Consider Importance of "Primary Noncontributory" Language

February 16, 2017 — David Adelstein – Florida Construction Legal Updates
In prior articles, I reinforced the importance of general contractors including “primary and noncontributory” language in subcontracts and requiring the subcontractor to provide an analogous “primary and noncontributory” endorsement. As a general contractor this is important, particularly since you are going to require the subcontractor to (i) indemnify you for claims relating to personal injury, property damage, or death, and (ii) identify you as an additional insured under its commercial general liability (CGL) policy for claims arising out of the subcontractor’s scope of work. The “primary and noncontributory” language in your subcontracts allows you to maximize the value of your additional insured status. 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

When Is a Project Delay Material and Actionable?

January 11, 2022 — Rick Erickson - Snell & Wilmer Real Estate Litigation Blog
Welcome to 2022! This year, the construction industry will undoubtedly reflect on the last two years as unprecedented times plagued by construction project delays. The COVID-19 pandemic contributed to suspension of work and closure of construction projects worldwide in 2020. The end of 2021 brought additional delays caused by an inexplicable clog in the supply chain of construction materials. The combined impact of these events on project milestones and completion deadlines led our clients to ask, with unusual and particular urgency, who is liable for such delays and how do contracting parties lessen the consequences from such unexpected and uncontrollable delays. Granted that project delays are nothing new or unusual. They were common enough before inflation caused shipping complications and pandemic decimated the construction labor force. All delays, whatever the source, variably cause loss to all players on a construction project. But not all delays matter when it comes to claims and remedies available to the contracting parties in dispute resolution, where the determinative focus is on material delays impacting the entire project and on delays the claimant can credibly prove. Most, if not all, jurisdictions interpret actionable delays from the contract documents for the project. The contract is definitely where you should start before pursuing any delay remedies. Delay remedies may be a time extension only, or a time extension plus your additional general conditions. Some delay remedies may be barred by the contract’s express terms and may be enforced adversely by the courts when such contract terms are indisputable. See Quinn Constr. v. Skanska USA Bldg., Inc., 730 F. Supp. 2d 401, 411 (D.C. Pa. 2010) (enforcing the subcontractor’s contractual waiver of claims for delay and disruption damages). On the other hand, delay damages that are expressly allowed by the contract—like overtime necessitated by the delays—are usually actionable and recoverable. Id. However, not only the contract terms, but applicable law, may affect the outcome. Read the court decision
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Reprinted courtesy of Rick Erickson, Snell & Wilmer
Mr. Erickson may be contacted at rerickson@swlaw.com

Pay-if-Paid Clauses, Nasty, but Enforceable

March 12, 2015 — Craig Martin – Construction Contractor Advisor
I am preparing for a presentation this week on Troublesome Contract Clauses to the Construction Specifications Institute (“CSI”), Nebraska Chapter. One of the clauses we will be discussing is the dreaded Pay-if-Paid clause, a particularly nasty provision that places the risk of owner’s solvency squarely on the subcontractor’s shoulders. While pay-if-paid clauses can create tremendous problems for subcontractors, they are enforceable. Pay-if-Paid clauses eliminate the obligation to pay the subcontractor until the general contractor is paid by the owner. Pay-if-paid clauses usually contain something akin to the following phrases:

payment to subcontractors are “expressly and unequivocally contingent upon receipt of payment from the Owner for the Subcontract Work.”
the subcontractor “expressly acknowledges that it relies on payment under the Subcontract on the creditworthiness of Owner, not that of the General Contractor.”
the owner’s acceptance of the work and payment to the General Contractor are “conditions precedent to any obligation of the General Contractor to pay the subcontractor.”

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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

43% of U.S. Homes in High Natural Disaster Risk Areas

September 03, 2015 — Beverley BevenFlorez-CDJ STAFF
RealtyTrac released data that declared that “35.8 million U.S. single family homes and condos with a combined estimated market value of $6.6 trillion are in counties with high or very high natural hazard risk.” Each county was assigned one of five risk catagories for overall risk of natural disaster: Very High, High, Moderate, Low, and Very Low. States whose scores fell into the “Very High” category included California, Florida, New York, New Jersey, and North Carolina. “The weather is beautiful in SoCal, but we are statistically more susceptible to the risk of fire, floods and earthquakes than most areas. Our agents must be articulate in explaining the higher risks to buyers. People have to be able trust their agent to fully disclose the risks of natural disasters and homeownership to allow buyers to make the most informed decisions,” Mark Hughes, chief operating officer with First Team Real Estate, covering the Southern California market, told RealtyTrac. “A well-informed knowledgeable buyer is best prepared to take on the potential risks associated with SoCal homeownership.” Read the court decision
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Will Claims By Contractors on Big Design-Build Projects Ever End?

February 27, 2023 — Richard Korman - Engineering News-Record
In the annals of construction disputes, it is a blip, not a blast. After a Flatiron Construction-Zachry Group joint venture struck out on most of its arbitrated claims against engineering firm partners on the I-85/385 design-build interchange project in Greenville, S.C., and had others dismissed in court, the contractors had one more source from which to try to cover unexpected project costs: a contractor protective professional policy. Flatiron-Zachry filed a lawsuit last October in San Antonio federal court to try to force payment from Steadfast, a subsidiary of Zurich American Insurance Co. Reprinted courtesy of Richard Korman, Engineering News-Record Mr. Korman may be contacted at kormanr@enr.com Read the full story... Read the court decision
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Architect Sues School District

November 20, 2013 — CDJ STAFF
SFL+A Architects is suing the Marlboro County, South Carolina School District over $690,000 that the architect claims is owed to it by the school district. The firm did design work for the Blenheim Elementary Middle School, which opened in January. The architectural firm contends that the school district refused to pay for anything outside of basic services and failed to pay the full amount on those either. Read the court decision
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Not So Unambiguous: California Court of Appeal Finds Coverage for Additional Insured

October 11, 2017 — Malcom Ranger-Murdock - Saxe Doernberger & Vita, P.C.
California’s Fourth District Court of Appeal recently determined that manuscript additional insured endorsements (AIEs), which purportedly provided coverage for ongoing operations only, were ambiguous. The court also found the insurer that issued the policies, American Safety Indemnity Co. (American Safety), acted in bad faith due to its systematic efforts to deny coverage to general contractors as additional insureds. In Pulte Home Corp. v. American Safety Indemnity Co.,1 Pulte Home Corporation (Pulte Home), a general contractor, sued American Safety for failure to defend Pulte Home as an additional insured in connection with two underlying construction defect lawsuits. American Safety contended that it did not have a duty to defend Pulte Home because the loss occurred after the construction project was complete and the applicable AIEs did not provide coverage for completed operations, and/or because the policy’s faulty workmanship exclusions applied. The trial court awarded $1.4 million in compensatory and punitive damages to Pulte Home, and American Safety appealed. Read the court decision
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Reprinted courtesy of Malcom Ranger-Murdock, Saxe Doernberger & Vita, P.C.
Mr. Ranger-Murdock may be contacted at mrm@sdvlaw.com

OH Supreme Court Rules Against General Contractor in Construction Defect Coverage Dispute

October 30, 2018 — Theresa A. Guertin - Saxe Doernberger & Vita, P.C.
On October 9, 2018, the Ohio Supreme Court issued a decision in Ohio Northern University v. Charles Construction Services, Inc., Slip Op. 2018-Ohio-4057, finding that a general contractor was not entitled to defense or indemnity from its CGL insurer in a construction defect suit brought by a project owner post-project completion. With this decision, Ohio has solidified its place amongst a diminishing number of states, including Pennsylvania and Kentucky, which hold that there is no coverage for defective construction claims because those losses do not present the level of fortuity required to trigger CGL coverage. This places Ohio amongst the worst in the country on this issue at a time when numerous states have abandoned old precedent and moved towards a policyholder friendly analysis. Ohio Northern University (“ONU”) hired Charles Construction Services, Inc. (“CCS”) to construct the University Inn and Conference Center, a new hotel and conference center on their campus in Ada, Ohio. CCS purchased CGL insurance from Cincinnati Insurance Company (“CIC”) insuring the project. Following completion of the project, ONU sued CCS alleging defects in the construction of the completed project, including allegations that windows improperly installed by one subcontractor led to damage to walls built by another subcontractor. CIC agreed to defend CCS under a reservation of rights but intervened in the action between ONU and CCS to pursue a declaratory judgment that it had no obligation to defend or indemnify its insured for the alleged losses. Read the court decision
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Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita, P.C.
Ms. Guertin may be contacted at tag@sdvlaw.com

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES