Fairfield Connecticut Building Expert Directory

“Positive Limiting Barriers” Are An Open and Obvious Condition, Relieving Owner of Duty to Warn

June 13, 2018 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog
On June 1, the U.S. Court of Appeals for the First Circuit decided the case of Potvin v. Speedway, Inc., a personal injury case subject to the laws of Massachusetts. In Massachusetts, environmental rules require the installation of “positive limiting barriers” at gasoline service stations to contain gasoline spills of up to 5 gallons. At a self-service station now owned by Speedway, Inc., the plaintiff, a passenger in a car being serviced, exited the car but tripped on these barriers and was injured. She sued Speedway in state court, and the case was removed to federal court. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLP
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Recommendations and Drafting Considerations for Construction Contingency Clauses Part III

December 27, 2021 — Samantha Schacht & Josh Levy - Construction Executive
The best contracts provide the parties with a clear allocation of risks and responsibilities, and a process for handling inevitable project challenges. Contract negotiations can enable parties to have the difficult conversations allocating risks before the start of a project. An effective negotiation, in turn, aligns the parties’ expectations and helps avoid costly disputes born out of misunderstandings of the parties’ respective rights and responsibilities on the project. This final installment of a three-part series on contingencies in construction contracts addresses factors that should be discussed and considered when drafting a contingency clause in a construction contract with the goal of helping to set clear expectations and avoid disputes. Part I The Best Laid Plans: Contingency in a Construction Contract explained what a construction contingency is and Part II The Best Laid Plans: Contingency in a Construction Contract discussed the two primary schools of thought on how a construction contingency fund should be used and managed. Reprinted courtesy of Samantha Schacht, Construction Executive and Josh Levy, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Ms. Schacht may be contacted at samantha.schacht@huschblackwell.com Read the court decision
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California Court Confirms Broad Coverage Under “Ongoing Operations” Endorsements

December 01, 2017 — Kevin C. Brantley - Payne & Fears
A California Court of Appeal has confirmed that additional insured endorsements (“AIE”) granting coverage for liability arising out of a named insured’s “ongoing operations,” and in effect during those “ongoing operations,” do not require that the liability arise while the named insured is performing work. McMillin Mgmt. Servs., L.P. v. Financial Pacific Ins. Co., Cal. Ct. App., November 14, 2017, Case No. D069814. In McMillin, a construction defect insurance coverage action, Lexington Insurance Company argued that McMillin had no liability to homeowners until after their homes closed escrow; thus, McMillin did not face liability while the named insureds’ work was ongoing. The Court of Appeal rejected Lexington’s argument, finding that the “ongoing operations” AIEs provide only that McMillin’s liability “be ‘linked’ through a ‘minimal causal connection or incidental relationship’ with [the named insureds’] ongoing operations.” (internal citations omitted). The Court reasoned that Lexington had not established that all of the damage in the underlying action occurred after the named insureds completed their work, thus Lexington had not established as a matter of law that there was no potential for coverage for McMillin under the policies. Read the court decision
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Reprinted courtesy of Kevin C. Brantley, Payne & Fears
Mr. Brantley may be contacted at kcb@paynefears.com

Committeewoman Requests Refund on Attorney Fees after Failed Legal Efforts

February 10, 2014 — Beverley BevenFlorez-CDJ STAFF
West Deptford, New Jersey township redevelopment counsel Mark Cimino had spent a year arguing that the city should receive a $4 million reduction in construction costs due to “inadequate documentation provided by the bank, as well as receipts showing disbursement had ‘improperly’ been made toward uses other than construction,” according to a December 30th 2013 article in the South Jersey Times. However, a state appellate court upheld the ruling that “the township had no basis” to request the reduction. Now, Committeewoman Denice DiCarlo is “seeking a $10,000 refund on the attorney fees paid” to Cimino, the South Jersey Times reported on February 6th. “This entire matter has been a monumental waste of tax dollars, and I am angry that the entire township committee was misled by Mr. Cimino and induced to believe we had any reasonable chance of recovering loan proceeds from this lawsuit,” DiCarlo stated in a letter to Mayor Raymond Chintall. Not all committee members agree with DiCarlo. Committeeman Sam Cianfarini told South Jersey Times that “he still believed Fulton Bank owed it to West Deptford to answer for any funds put toward anything other than construction.” Cimino declared “that both the lawsuit and appeal were valid,” according to the February 6th article. He “accused DiCarlo of ‘playing politics.’” Read the full story, December 30th Article... Read the full story, February 6th Article... Read the court decision
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California Beach Hotel to Get $185 Million Luxury Rebuild

September 17, 2014 — Nadja Brandt – Bloomberg
Rick Caruso, a Los Angeles shopping-mall developer, plans to spend about $185 million to rebuild a Southern California seaside hotel with a troubled past into a luxury getaway. The 170-room Miramar Beach Resort and Bungalows in Montecito, near Santa Barbara, will have such amenities as a beach club, spa, restaurants and two swimming pools, said Caruso, founder of closely held developer Caruso Affiliated. The site’s former hotel, known as Miramar by the Sea, has already been razed. Caruso bought the property in 2007 from H. Ty Warner, the billionaire creator of Beanie Babies plush toys and owner of the Four Seasons Hotel New York. The California hotel, on about 15 acres (6 hectares), had been out of service for more than a decade as past revival efforts were stalled by local opposition to development and the property market’s crash. Former owners include hotelier Ian Schrager. Read the court decision
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Reprinted courtesy of Nadja Brandt, Bloomberg
Ms. Brandt may be contacted at nbrandt@bloomberg.net

Pandemic-Related Construction Materials Pricing Poses Challenges in Construction Lawsuits

September 20, 2021 — Nick Stewart - Construction Executive
During the global pandemic the construction industry saw unprecedented inflation in the cost of building supplies as a result of a myriad of issues. On May 7, 2021, lumber prices hit a record high at $1,670.50 per thousand board feet. This was more than six times their pandemic low in April 2020. This significant price spike was related to closure of sawmills during the height of the pandemic, low supply, soaring demand to expand existing homes or purchase new construction, the western U.S. wildfires and tariffs. More recently, lumber prices have fallen but they are still up nearly 100% from spring 2020. Some experts believe that the recent wildfires in the western United States and upcoming hurricane season will cause prices to jump back up in the upcoming months. Additionally, since March 2020, steel prices are up roughly 200%. The increase in steel prices is a result of many of the same factors causing lumber pricing spikes. Many steel mills shut down production or drastically reduced production during the early days of the pandemic expecting a deep recession and/or to comply with restrictive government mandates. Despite these industry expectations, demand for steel -elated products like grills and home appliances soared. These household demands for steel-based products impacted the price of steel for construction projects. Prior to the pandemic, hot-rolled steel traded between $500 and 800 per ton but hit an all-time high of $1,825 per ton in early July 2021. Reprinted courtesy of Nick Stewart, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Stewart may be contacted at nstewart@turnerpadget.com

The Advantages of Virtual Reality in Construction

August 20, 2019 — Spivey Lipsey - Construction Executive
Virtual realty provides an unparalleled spatial sense for visualization at a lower cost than full-scale replicas. Today, VR is being used heavily in preconstruction to align owner expectations and educate design team stakeholders. For those already employing BIM solutions, coordination can be made much more effective by leveraging existing design models with very little added cost. As anyone who has tried a VR headset before can attest, the ability to accurately perceive spatial relationships in design cannot be replicated through traditional 2D media such as screens or paper. VR solutions also have the ability to iterate rapidly. These technologies are linked to BIM, providing real-time feedback as the design changes. This is in stark contrast to traditional full-scale mockups and offline renders, which are cumbersome and time-consuming to update with design changes. Substantial benefits without a hefty price tag Budget limitations and ROI are always a concern with emerging technology. Fortunately, VR comes cheaply with BIM production. These solutions are significantly less expensive than full-scale mockups and far more efficient when compared to longhand sequencing explanations and esoteric detailing of complex designs. Even the most elaborate VR setups are a fraction of overall construction cost, ranging from a few hundred to a few thousand dollars depending on the level of adoption. Reprinted courtesy of Spivey Lipsey, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Illinois Court Assesses Factual Nature of Term “Reside” in Determining Duty to Defend

October 30, 2023 — James M. Eastham - Traub Lieberman
In State Farm Fire & Cas. Co. v. Guevara, 2023 IL App (1st) 221425-U, P2, the Illinois First District Court of Appeals addressed an insurance carrier’s duty to defend under a homeowners insurance policy. The underlying suit stemmed from an alleged injury suffered at a residence located in Berwyn, Illinois and owned by named insured Luz Melina Guevara, a defendant in the suit. After Guevara tendered the suit, State Farm filed a complaint for declaratory judgment seeking a declaration that it had no duty to defend or indemnify Guevara because Guevara did not “reside” at the insured premises. The policy defined the "insured location" as the "residence premises," and residence premises was defined as "the one, two, three or four-family dwelling, other structures, and grounds or that part of any other building; where you reside and which is shown in the Declarations." In response to the underlying lawsuit, Guevara had filed an answer and affirmative defenses in which Guevara denied the allegation that "At all relevant times, [Guevara] resided in Berwyn, Cook County, Illinois." Guevara admitted that she owned the Berwyn property but denied that she "resided in, maintained and controlled the property". The declaratory judgment complaint alleged (among other things) that, based on admissions by Guevara in her answer, the Berwyn residence was not an "insured location" under the State Farm policy. State Farm moved for summary judgment at the trial court level on this ground and summary judgment was granted in State Farm’s favor. An appeal ensued wherein the parties disagreed as to whether there is a genuine issue of material fact that, under the language of the policy, State Farm had no duty to defend because the Berwyn property was not an "insured location" because she did not "reside" there. Read the court decision
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Reprinted courtesy of James M. Eastham, Traub Lieberman
Mr. Eastham may be contacted at jeastham@tlsslaw.com

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