FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Nevada Assembly Bill Proposes Changes to Construction Defect Litigation

April 14, 2011 — Beverley BevenFlorez CDJ STAFF

Assemblyman John Oceguera has written a bill that would redefine the term Construction Defect, set statutory limitations, and force the prevailing party to pay for attorney’s fees. Assembly Bill 401 has been referred to the Committee on Judiciary.



Currently, the law in Nevada states that “a defect in the design, construction, manufacture, repair or landscaping of a new residence, of an alteration of or addition to an existing residence, or of an appurtenance, which is done in violation of law, including in violation of local codes or ordinances, is a constructional defect.” However, AB401 “provides that there is a rebuttable presumption that workmanship which exceeds the standards set forth in the applicable law, including any applicable local codes or ordinances, is not a constructional defect.”



The Nevada courts may award attorney fees to the prevailing party today. However, AB401 mandates that attorney fees must be awarded, and the exact award is to be determined by the Court. “(1) The court shall award to the prevailing party reasonable attorney’s fees, which must be an element of costs and awarded as costs; and (2) the amount of any attorney’s fees awarded must be determined by and approved by the court.”



AB401 also sets a three year statutory limit “for an action for damages for certain deficiencies, injury or wrongful death caused by a defect in construction if the defect is a result of willful misconduct or was fraudulently concealed.”



This Nevada bill is in the early stages of development.

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Calling Hurricanes a Category 6 Risks Creating Deadly Confusion

March 25, 2024 — Brian K Sullivan - Bloomberg
Category 5 has become part of the world’s lexicon to describe a disaster of monumental proportion. Now, thanks to climate change, a pair of scientists don’t think that is a dire enough level to describe hurricanes. They raise the possibility, on a “hypothetical” basis, for a Category 6. Global warming has increased the energy available for storms to grow stronger, according to a paper by Michael Wehner, senior scientist at the Lawrence Berkeley National Lab, and James Kossin, climate and atmospheric professor at the University of Wisconsin. Their work was published in Proceedings of the National Academy of Sciences of the US. The scientists make a case for adjusting the five-step, Saffir-Simpson Hurricane Wind Scale, which is used to describe hurricane power. A Category 5 is assigned when storm winds reach 157 miles per hour, and today that goes up to the limit of physics. Wehner and Kossin suggest considering anything over 192 mph a Category 6. Read the court decision
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A Downside of Associational Standing - HOA's Claims Against Subcontractors Barred by Statute of Limitations

March 28, 2012 — Bret Cogdill, Colorado Construction Litigation

In multi-family construction defect litigation in Colorado, homeowners associations rely on associational standing to pursue claims affecting more than two units and to bring claims covering an entire development. This practice broadens an association’s case beyond what individual, aggrieved owners would otherwise bring on their own against a developer or builder-vendor. However, reliance on associational standing to combine homeowners’ defect claims into a single lawsuit has its drawbacks to homeowners.



A recent order in the case Villa Mirage Condominium Owners’ Association, Inc., v. Stetson 162, LLC, et al., in El Paso County District Court, presents an example. There, the HOA unsuccessfully sought a determination from the court that its claims against subcontractors were not barred by the statute of limitations. To do so, the HOAs attempted to apply the Colorado Common Interest Ownership Act (“CCIOA”), which governs the creation and operation of HOAs, and a statute intended to apply to persons under a legal disability.



Under CCIOA, during the period of “declarant control” the developer may appoint members to the association’s executive board until sufficient homeowners have moved into the development and taken seats on the board.

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Reprinted courtesy of Bret Cogdill of Higgins, Hopkins, McClain & Roswell, LLC. Mr. Cogdill can be contacted at cogdill@hhmrlaw.com.

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Texas Legislature Puts a Spear in Doctrine Making Contractor Warrantor of Owner Furnished Plans and Specifications

May 31, 2021 — Paulo Flores, Timothy D. Matheny & Jackson Mabry - Peckar & Abramson, P.C.
The Texas Legislature has just sent Senate Bill 219 (“S.B. 219”) to the Governor for signature; if this legislation is signed by the Governor, it will further erode the Texas legal doctrine that makes the contractor the warrantor of owner-furnished plans and specifications unless the prime contract specifically places this burden on the owner. Background 49 states follow what is known as the Spearin doctrine (named after the U.S. Supreme Court case of United States v. Spearin) in which owners warrant the accuracy and sufficiency of owner-furnished plans and specifications. Texas, on the other hand, follows the Texas Supreme Court created Lonergan doctrine, which has been an unfortunate presence in Texas construction law since 1907. In its “purest form,” as stated by the Texas Supreme Court, the Lonergan doctrine prevents a contractor from successfully asserting a claim for “breach of contract based on defective plans and specifications” unless the contract contains language that “shows an intent to shift the burden of risk to the owner.” Essentially, this then translates into the contractor warranting the sufficiency and accuracy of owner-furnished plans and specifications, unless the contract between them expressly places this burden on the owner. Over the years some Texas courts of appeal had ameliorated this harsh doctrine, but in 2012, the Texas Supreme Court indicated Lonergan was still the law in Texas, in the case of El Paso v. Mastec. In 2019, the Texas Legislature took the first step toward hopefully abrogating the Lonergan doctrine by implementing a new Chapter 473 to the Texas Transportation Code with respect to certain projects undertaken by the Texas Department of Transportation, and Texas political subdivisions acting under the authority of Chapters 284, 366, 370 or 431 of the Transportation Code, adopting, as it were, the Spearin Doctrine in these limited, transportation projects. Now, the legislature has further chipped away at the Lonergan doctrine with the passage of S.B. 219. Reprinted courtesy of Paulo Flores, Peckar & Abramson, P.C., Timothy D. Matheny, Peckar & Abramson, P.C. and Jackson Mabry, Peckar & Abramson, P.C. Mr. Flores may be contacted at PFlores@Pecklaw.com Mr. Matheny may be contacted at tmatheny@pecklaw.com Mr. Mabry may be contacted at jmabry@pecklaw.com Read the court decision
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How the Jury Divided $112M in Seattle Crane Collapse Damages

April 04, 2022 — Richard Korman - Engineering News-Record
The jury verdict in a wrongful death lawsuit against companies involved in a 2019 Seattle crane collapse that killed four people split damages among three different companies—and also blamed a fourth firm that wasn't a defendant—but not in a way that matched the state safety fines proposed against the firms. 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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NYC Supertall Tower Condo Board Sues Over Alleged Construction, Design 'Defects'

October 04, 2021 — James Leggate - Engineering News-Record
The condominium board at a 1,396-ft-tall residential tower on New York City’s Billionaires’ Row has sued the building’s developers, claiming to have identified more than 1,500 construction and design defects in common areas alone. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Plans Go High Tech

April 25, 2012 — CDJ STAFF

One construction executive described it as “the wave of the future.” What is it? Accessing building plans on an iPad. According to an article in MacWorld, several companies are now offering solutions to distribute and update construction plans on iPads. Changes to plans and notes can be distributed quickly through cloud computing.



Alan Dillon, a senior superintendent at DPR Construction told MacWorld, “I can take my iPad into the field and have my whole set of drawings.” He described a set of drawings for a large construction project as “five or six inches thick.” Danielle Douthet, of Level 10 Construction said it “can help everyone be on the same page more quickly, and make sure that everybody is working off the most current set of documents.”



And it’s not just building plans. Other firms offer building management applications designed to be taken into the field on mobile devices.



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Limiting Liability: Three Clauses to Consider in your Next Construction Contract

June 25, 2019 — Tara Lynch - Gordon & Rees Construction Law Blog
In your next contract, consider including some (or all!) of the following clauses to limit your liability and maximize your profits. Waiver of Consequential Damages While a proven breach of contract will leave a design professional or contractor exposed to direct or compensatory damages, a waiver of consequential damages will help “stop the bleeding” and protect the design professional or contractor from paying every damage that might flow from the breach. Consequential damages include those damages which indirectly flow from the breach of contract, for example, lost rents, lost profits, lost use, lost opportunity, loss of employee productivity, and damages to reputation. The American Institute of Architects (AIA) has included a mutual waiver of consequential damages in its sample A201 for over 20 years. The AIA provision includes a definition of consequential damages which are waived, including many of the examples cited above. However, the AIA waiver of consequential damages clause carves out an exception for liquidated damages to the owner. Prudent design professionals and contractors will strike this exception so as not to render the clause meaningless. A well-drafted waiver clause will be mutual, will define which damages are consequential versus direct, and will not contain exceptions. Read the court decision
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Reprinted courtesy of Tara Lynch - Gordon & Rees Scully Mansukhani
Ms. Lynch may be contacted at tlynch@grsm.com

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