Fairfield Connecticut Building Expert Directory

Assert a Party’s Noncompliance of Conditions Precedent with Particularity

July 26, 2017 — David Adelstein - Florida Construction Legal Updates
Construction contracts oftentimes and should contain conditions precedent to payment. Conditions precedent apply to both progress payments and final payment. The conditions precedent operate such that payment is NOT due until the conditions are satisfied. The satisfaction of the conditions precedent triggers the payor’s obligation to pay. If a dispute arises due to the payee’s noncompliance with conditions precedent to payment, the noncompliance should be asserted with particularity in the answer and affirmative defenses. For example, if a subcontractor was required to provide lien waivers and releases as a condition precedent to payment, then this should be asserted with particularity as an affirmative defense. If the contractor’s receipt of payment from the owner was a condition precedent to payment to the subcontractor (pay-when-paid), then this should be asserted with particularity as an affirmative defense. Any noncompliance with a condition precedent should be identified as an affirmative defense. 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

Celebrities Lose Case in Construction Defect Arbitration

May 26, 2011 — CDJ STAFF

An arbitration panel has ruled that problems with the Idaho home of actors Tom Hanks and Rita Wilson were not due to construction defects but rather to “poor design and bad architectural advice.” The couple had settled with the architectural firm, Lake Flato of San Antonio, Texas for $900,000 and was subsequently seeking $3 million from Storey Construction of Ketchum, Idaho.

Problems with the couple’s home “included leaking roofs, inadequate drainage, fireplaces that did not vent properly and an inadequate air-conditioning system. In 2003, sliding snow from the roof damaged kitchen windows and roof components.”

The arbitration panel, according to the report in the Idaho Mountain Express and Guide, noted that “Hanks and Wilson were responsible for the full $167,623 cost of arbitration, but further denied a Storey Construction counterclaim that alleged Hanks and Wilson filed their claim out of malice.”

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Risky Business: Contractual Protections in the 'New Normal'

January 04, 2023 — Daniel Lund III - Construction Executive
The point of contracts is to create certainty to avoid litigated or arbitrated disputes. Still, the various parties in the construction process may have different risk tolerances. For example, general contractors are often characterized as “risk-tolerant.” That risk, though, is usually calculated by the contractor internally, outside the terms of the written contract, based on an assumption that the contractor can get the work done more cheaply and more quickly than the owner anticipated. Project owners typically want and expect close-to-absolute certitude—absolutely as to cost—in their construction contracts. The standard fixed-price or lump-sum construction contract is geared toward protecting that interest. Post-COVID-19, however, the discussion in the industry suggests that all bets are off when pricing and agreeing to construction work. Labor and materials shortages have sent owners and their design consultants backpedaling when general contractors pursuing a fixed-price contract seek contractual concessions that “un-fix” the price. Reprinted courtesy of Daniel Lund III , Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Cybersecurity "Flash" Warning for Construction and Manufacturing Businesses

April 26, 2021 — Jeffrey M. Dennis - Newmeyer Dillion
The FBI recently released its 2020 Internet Crime Report (Report), which details and analyzes complaints received through the FBI’s Internet Crime Complaint Center (IC3). In 2020, IC3 received a record number of complaints – nearly 800,000, with reported losses in excess of $4.1 billion. Companies must acknowledge that cybercrime is a real, dangerous threat to their business, and understand how, and why, these threats continue to escalate. At a minimum, businesses should take several proactive steps to protect themselves. What is IC3? IC3 is an online platform hosted by the FBI, which exists to provide the public with a trusted place to report cybercrime to the FBI. Since its inception in 2000, the IC3 has received 5.6 million complaints, and has averaged approximately 440,000 complaints over each of the last five years. The complaint figure for 2020 is nearly double that average. Read the court decision
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Reprinted courtesy of Jeffrey M. Dennis, Newmeyer Dillion
Mr. Dennis may be contacted at jeff.dennis@ndlf.com

Umbrella Policy Must Drop Down to Assist with Defense

May 12, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The court determined that an umbrella carrier was obligated to assist the general liability insurer in defending the insured. Am. States Ins. Co. v. Insurance Company of the State of Pennsylvania, 2016 U.S. Dist LEXIS 38128 (E.D. Cal. March 23, 2016). Sierra Pacific Industries obtained rights to timber harvesting operation on a parcel of land in northern California. Sierra hired Howell's Forest Harvesting to perform certain timber harvest operations under the terms of a logging agreement. The logging agreement required Howell to obtain a CGL policy and to name Sierra as an additional insured. 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

He's the Top U.S. Mortgage Salesman. His Daughter Isn't Buying It

July 16, 2014 — Lorraine Woellert – Bloomberg
David Stevens, chief executive officer of the Mortgage Bankers Association, has spent his career lauding the merits of homeownership. One person still isn’t buying it: his daughter. Sara Stevens, 27, knows interest rates are low, rents are high and owning a home can build wealth. She also had a front-row seat to the worst real-estate slump since the Great Depression. “The world has changed,” she said. Six years since the collapse of Lehman Brothers triggered a financial meltdown, some young adults are more risk averse and view the potential upsides of status and wealth more skeptically than before the crisis, altering the homeownership calculation. It’s more than the weight of student loans, an iffy job market and tight credit -- even those who can buy are hesitant. Read the court decision
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Reprinted courtesy of Lorraine Woellert, Bloomberg
Ms. Woellert may be contacted at lwoellert@bloomberg.net

School District Settles Construction Lawsuit with Additional Million

April 03, 2013 — CDJ STAFF
The southern New York town of Liberty has settled a lawsuit filed by the contractor with an agreement that the school district will pay an additional $1.1 million. Darlind Construction of LaGrangeville, New York had alleged that “errors, omissions, and other defects” in the plans provided to them required additional work. The school project had previously cost the town about $36 million. Darlind Construction’s initial claim had been for $1.6 million. Funds for the settlement will come from monies appropriated for the project, most of which were contributed by the State of New York. Read the court decision
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LEED Certified Courthouse Square Negotiating With Insurers, Mulling Over Demolition

June 06, 2011 — Douglas Reiser, Builders Council Blog

Apparently, Courthouse Square is still unresolved. The County hasnow hired an attorney to handle its insurance claim against Affiliated FM. Is there a lawsuit coming?

Right now, no lawsuit is expected. According to officials, the insurer has been acting in good faith. But, its been quite a while since Salem officials learned that the Courthouse Square building had significant concrete issues that would result in probable demolition of the LEED certified building.

If you have yet to hear about Courthouse Square, let me fill you in briefly. The Salem building was substantially completed in 2000 and LEED certified by the US Green Building Council in 2002. The project cost more than $30 Million to complete and the building was revered for its innovation as a crowning achievement for city leaders.

But, structural problems in the building’s core were discovered as early as 2002, writes Chris Cheatham of Green Building Law Update. Final tests earlier in the year, determined that the building had to be vacated. The building has been clear since July 2010.