FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Late Progress Payments on Local Public Works Projects Are Not a Statutory Breach of Contract

May 10, 2022 — Ted Senet & Christopher Trembley - Gibbs Giden
California local public agencies and their contractors should take note of a recent appellate decision pertaining to late progress payments on public works projects. In Clark Bros., Inc. v. North Edwards Water Dist., 2022 Cal. App. LEXIS 331, filed on April 22, 2022, the Court of Appeal for the Fourth Appellate District held that a local agency’s late progress payments to a general contractor did not constitute breach of contract under the prompt payment penalty statute, Public Contract Code § 20104.50. Notwithstanding this holding, the contractor recovered damages, interest, fees, and costs in excess of its contract amount. In 2013, the North Edwards Water District awarded a $6.2 million contract to Clark Bros., Inc. to construct a water treatment facility. The District’s water contained excessive levels of arsenic, and the project was sponsored by the State of California with funds earmarked to provide safe drinking water. The State agreed to disburse funds to the District during construction upon the State’s review and approval of the contractor’s progress payment applications. The contract required completion of the work within one year following the District’s issuance of a notice to proceed to the contractor. As a result of factors arguably outside the control of the contractor, including unforeseen site conditions and the failure of the District’s equipment supplier to meet delivery deadlines, the project was significantly delayed beyond the deadline for completion. The District nonetheless terminated the contractor, which in turn filed suit against the District and the State. The contractor asserted claims for breach of contract, including breach of contract for the District’s failure to pay the contractor’s progress payment applications within the time specified under Public Contract Code § 20104.50. Subsection (b) of the statute provides:

Any local agency which fails to make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from a contractor on a construction contract shall pay interest to the contractor equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the Code of Civil Procedure.

Reprinted courtesy of Ted Senet, Gibbs Giden and Christopher Trembley, Gibbs Giden Mr. Senet may be contacted at tsenet@gibbsgiden.com Mr. Trembley may be contacted at Ctrembley@gibbsgiden.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Happy New Year from CDJ

January 04, 2018 — Laura Parsons – CDJ Staff
The CDJ staff has compiled a “Top 10” list of the articles published in 2017. These articles were the “most read” by our audience last year. These most read stories range from contemplating construction industry conundrums to a surprising increase of new home construction nationwide. As we kick off our first publication of 2018 we are excited to continue to bring you interesting and relevant content. We hope that you will continue to rely on CDJ for an insightful weekly summary of what is happening in the construction defect industry. Read the court decision
Read the full story...
Reprinted courtesy of

---

Finding Plaintiff Intentionally Spoliated Evidence, the Northern District of Indiana Imposes Sanction

March 14, 2018 — Shannon M. Warren – The Subrogation Strategist
On January 23, 2018, the Northern District of Indiana issued a decision that clarifies what constitutes spoliation of evidence under Indiana law. In Arcelormittal Ind. Harbor LLC v. Amex Nooter, LLC, 2018 U.S. Dist. LEXIS 10141 (N.D. Ind.), the defendant filed a motion for sanctions, alleging that the plaintiff intentionally spoliated critical evidence. The defendant sought dismissal of the action, asserting that the plaintiff intentionally discarded and lost important physical evidence within hours of a fire that occurred while the defendant’s employees were performing work at its facility. The decision underscores the importance of taking immediate action to properly identify and secure potentially material evidence in order to satisfy ones duty to preserve pre-suit evidence and avoid any spoliation defenses and associated sanctions. In Arcelormittal, the court initially considered whether to apply state or federal law when analyzing a litigant’s duty to preserve pre-suit evidence and determine if that party committed spoliation. Since the case was brought in federal court based on diversity jurisdiction, the court held that Indiana state law governed the spoliation analysis. As noted by the court, under Indiana state law, “the intentional destruction, mutilation, altercation, or concealment of evidence” is considered to be spoliation. Thus, under Indiana law, a party who knew or should have known that litigation was imminent “may not lose, destroy or suppress material facts or evidence.” The plaintiff argued that Indiana law requires a showing of improper purpose or bad faith to establish that a litigant spoliated evidence. The Arcelormittal court rejected the plaintiff’s argument. Read the court decision
Read the full story...
Reprinted courtesy of Shannon M. Warren, White and Williams LLP
Ms. Warren may be contacted at warrens@whiteandwilliams.com

---

Steel Component Plant Linked to West Virginia Governor Signs $1M Pollution Pact

January 04, 2023 — Mary B. Powers - Engineering News-Record
Bluestone Coke, a 100-year old Birmingham. Ala. factory that produces a key component in steelmaking and is partially owned by West Virginia Gov. Jim Justice, must pay nearly $1 million under a Dec. 9 state consent decree for violating federal clean air rules by releasing toxic emissions from coke ovens. Reprinted courtesy of Mary B. Powers, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
Read the full story...
Reprinted courtesy of

---

Erdogan Vows to Punish Shoddy Builders Ahead of Crucial Election

April 25, 2023 — Selcan Hacaoglu - Bloomberg
Turkish President Recep Tayyip Erdogan vowed to punish breakers of construction-safety regulations in the wake of February’s deadly earthquakes, a move to distance himself from the devastation brought by tens of thousands of building collapses. “We will squeeze them into a corner,” Erdogan said in an interview with with CNN-Turk television late Wednesday. “It will be included in crimes that can’t be pardoned.” The aftermath of the Turkey earthquakes, which killed at least 50,000 people, has become a major talking point ahead of May 14 presidential elections. Erdogan is looking to extend his two-decade rule and is facing his toughest test yet from a united opposition, and critics say he is responsible for allowing builders to skip safety rules to win support in previous votes. Read the court decision
Read the full story...
Reprinted courtesy of Selcan Hacaoglu, Bloomberg

---

How I Prevailed on a Remote Jury Trial

March 04, 2024 — Samuel Yu - Kahana Feld
Are you crazy? That is what I asked my client when he asked me to conduct a jury trial remotely. At the time, I did not even know if it was feasible. While I figured that most courtrooms had remote capabilities, I was not sure whether anyone was crazy enough to do a jury trial remotely and whether a courtroom would accommodate it. Would I be able to truly connect with the jurors? Would the jurors hold it against me that I am appearing remotely while they have to be there in person? I told my client that this was a terrible idea but that I would at least see if it was an option. At the Final Status Conference, the Court confirmed that it could accommodate a remote appearance for both the party and the party’s counsel and gave its permission to do so. It was also clear that I would be the only attorney exercising this option, and the judge remarked that this would be a first for him. Appearing remotely while other attorneys appear in person is not something I would normally consider. However, this case presented a unique set of circumstances. Read the court decision
Read the full story...
Reprinted courtesy of Samuel Yu, Kahana Feld
Ms. Yu may be contacted at syu@kahanafeld.com

---

Statute of Limitations Upheld in Construction Defect Case

September 30, 2011 — CDJ STAFF

The Missouri Court of Appeals has ruled in Ball v. Friese Construction Co., finding that Mr. Ball’s claims were barred by the statute of limitations.

Mr. Ball hired Friese Construction Company to build a single-family home. The sale was completed on March 29, 2001. That December, Mr. Ball complained of cracks in the basement floor. SCI Engineering, n engineering firm, hired by Friese, determined that the home’s footing had settled and recommended that Mr. Ball hire a structural engineer to determine if the footings were properly designed and sized. In September 2002, the structural engineer, Strain Engineering, determined that the cracks were due to slab movement, caused in part by water beneath the slab, recommending measures to move water away from the foundation. In 2005, Mr. Ball sent Friese correspondence “detailing issues he was having with the home, including problems with the basement slab, chimney structure, drywall tape, and doors.” All of these were attributed to the foundation problems. In 2006, Friese stated that the slab movement was due to Ball’s failure to maintain the storm water drains.

In 2009, Ball received a report from GeoTest “stating the house was resting on highly plastic clay soils.” He sued Friese in May, 2010. Friese was granted a summary judgment dismissing the suit, as the Missouri has a five-year statute of limitations. Ball appealed on the grounds that the extent of the damage could not be determined until after the third expert report. The appeals court rejected this claim, noting that a reasonable person would have concluded that after the conclusion of SCI and Strain Engineering that “injury and substantial damages may have occurred.”

The court concluded that as there were not “continuing wrongs causing new and distinct damages,” he should have filed his lawsuit after the first two expert reports, not waiting seven years for a third expert to opine.

Read the court’s decision…

Read the court decision
Read the full story...
Reprinted courtesy of

---

Joint Venture Dispute Over Profits

January 28, 2019 — David R. Cook, Jr. - Autry, Hall, & Cook, LLP
A recent Georgia Court of Appeals case demonstrates the risk of joint ventures failing to carefully define accounting rules in their joint venture agreement. Two trade contractors teamed up to accomplish certain tasks on a job at a wastewater lift station at Fort Gordon. A joint venture agreement provided for an equal split of the profits and losses. Unfortunately, the parties did not define “profit,” and particularly did not define what cost would be deducted in calculating profit. They disputed in particular whether certain large payments to individuals and 15% overhead charges should be deducted in calculating profits. One party presented the expert testimony of an accountant while the other did not. The party presenting expert testimony asked the court to dismiss the other party’s claim because it was not supported by expert testimony of an accountant. The trial court granted the motion and dismissed the claim. Read the court decision
Read the full story...
Reprinted courtesy of David R. Cook, Jr., Autry, Hall, & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

---