Fairfield Connecticut Building Expert Directory

A Lack of Sophistication With the Construction Contract Can Play Out In an Ugly Dispute

November 07, 2022 — David Adelstein - Florida Construction Legal Updates
There are times where a lack of sophistication can come back to haunt you. This is not referring to a lack of sophistication of the parties. The parties, themselves, could be quite sophisticated. This is referring to a lack of sophistication with the construction contract forming the basis of the relationship. While parties don’t always want to buy into the contract drafting and negotiation process, it is oftentimes the first document reviewed. Because contract terms and conditions are important. They govern the relationship, the risk, scope, amount, and certain outcomes with disputes. However, a lack of sophistication can play out when that contract that should govern the relationship, the risk, the scope, the amount, and certain outcomes doesn’t actually do that, or if it does, it does it poorly. An example of how bad a dispute can play out when it comes to the lack of sophistication on the front end is Avant Design Group, Inc. v. Aquastar Holdings, LLC, 2022 WL 6852227 (Fla. 3d DCA 2022), where a cost-plus contract was treated as a lump sum contract. Here, an owner planned to perform an extensive interior build-out to a residential unit. The owner had an out-of-country architect; because the architect was not licensed in Florida, the owner hired a local architect/designer to oversee construction and obtain goods and services for the residential interior build-out. The contract was nothing but a proposal of items and costs. The proposal stated the owner “would pay the cost of goods and services of the vendors, plus pay a ‘20% Interior Design & Administrative Fee’” to the local designer. Avant Design Group, 2022 WL at *1. The proposal further stated, “This preliminary budget of the Client’s construction costs include [sic] anticipated costs for construction materials, labor and sales tax. Any other cost, including but not limited to freight, cartage, shipping, receiving, storage and delivery are not included in the preliminary budget and will be invoiced separately.” Id., n.2. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Public Contract Code Section 1104 Does Not Apply to Claims of Implied Breach of Warranty of Correctness of Plans and Specifications

October 30, 2023 — Garret Murai - California Construction Law Blog
It’s the classic tale of two cities. One city is occupied by architects and engineers. The other, by contractors. And while the cities typically co-exist relatively peacefully together, at times, they do not, such as when a defect arises that can either be a design or construction defect. Sometimes, project owners are pulled into these fights as well. There is a common law rule that when contracting with a contractor the owner impliedly warrants to the contractor that the plans and specifications are sufficiently accurate and correct. And, if you work on local public works projects, you may be familiar with Public Contract Code section 1104 which provides that, with the exception of design-build projects, local public entities cannot require a bidder to assume responsibility for the completeness and accuracy of architectural or engineering plans and specifications. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

When Can a General Contractor’s Knowledge be Imputed to a Developer?

August 06, 2014 — Zach McLeroy – Colorado Construction Litigation
The Colorado Court of Appeals recently handed down an opinion clarifying when the knowledge of a general contractor can be imputed to a developer. In the case of Jehly v. Brown, 327 P.3d (Colo. App. 2013), the Court of Appeals held that a developer cannot be held liable for fraudulent concealment when the developer has no actual knowledge of the fact or facts allegedly being concealed even if the general contractor had knowledge. In this case, Brown, the developer, owned real property in Teller County and hired a general contractor to build a single-family house. Sometime before or during the construction, the general contractor became aware that part of the home site was located in a designated floodplain. Although the general contractor was aware that part of the home site was located in a floodplain, he continued to build the home without informing Brown of the floodplain designation. Once the home was complete, Brown sold the property to the Jehlys. Brown completed a Seller’s Property Disclosure Form regarding the condition of the house and property, but failed to identify that the home site was located in a governmentally designated floodplain. Read the court decision
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Reprinted courtesy of Zack McLeroy, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLeroy may be contacted at McLeroy@hhmrlaw.com

2018 California Construction Law Update

January 10, 2018 — Garret Murai – California Construction Law Blog
The California State Legislature introduced 2,495 bills during the first year of the 2017-2018 Legislative Session. Of these, 859 were signed into law. While much political attention was focused on several California laws that could be viewed as California’s rebuke of Washington, including California’s legalization of marijuana, enactment of “sanctuary state” legislation, and bills focused on climate change, 2017 also saw the enactment of a package of bills intended to address the state’s housing affordability crises (for a great summary of these bills see Wendel Rosen’s Landuse Group’s recent article Slate of New Housing Bills Takes Effect January 1, 2018 ), as well as a range of other bills of interest to the construction industry including bills related construction financing, alternative project delivery methods, and solar construction. Each of the bills discussed below took effect on January 1, 2018, except as otherwise stated. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel, Rosen, Black, Dean, LLP
Mr. Murai may be contacted at gmurai@wendel.com

OSHA ETS Heads to Sixth Circuit

December 13, 2021 — George Morrison - White and Williams LLP
On November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit was selected during the Judicial Panel on Multidistrict Litigation’s lottery to hear the multiple consolidated challenges to the recent COVID-19 Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). OSHA is permitted to issue an ETS if the agency arrives at the conclusion that a “grave danger” to worker safety exists. An ETS does not go through the typical notice-and-comment period that federal regulations usually follow. Inheriting the Fifth Circuit’s recent nationwide stay on implementation and enforcement of the ETS, the Sixth Circuit will decide whether the stay should be “modified, revoked, or extended” in the short term. Early this morning, OSHA filed an emergency motion to dissolve the Fifth Circuit’s stay of the vaccine mandate with the Sixth Circuit. OSHA argued, among other things:

The Fifth Circuit erred in holding “that OSHA lacked statutory authority to address the grave danger of COVID-19 in the place on the ground that COVID-19 is caused by a virus and also exists outside of the workplace” because “[t]hat rationale has no basis in the statutory text.”
The Fifth Circuit erred in finding the ETS both over- and underinclusive because “OSHA recounted extensive empirical data showing that all employees can transmit COVID-19 in the workplace and that COVID-19 has spread in a vast variety of workplace.”
The “petitioners have not shown that their claimed injuries outweigh the interests in protecting employees from a dangerous virus while this litigation proceeds . . . . These claimed injuries do not justify delaying the [ETS] that will save thousands of lives and prevent hundreds of thousands of hospitalizations.”

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Reprinted courtesy of George Morrison, White and Williams LLP
Mr. Morrison may be contacted at morrisong@whiteandwilliams.com

Manhattan Gets First Crowdfunded Condos

September 03, 2015 — David M. Levitt & Oshrat Carmiel – Bloomberg
New York’s first real estate project financed significantly though crowdfunding is set to open, a step forward for a nascent investing model that has yet to prove itself in commercial property. AKA United Nations, an extended-stay hotel-condominium on East 46th Street near Second Avenue, will start taking guests Sept. 10. Sales of the suites have already begun. Of the $95 million it cost to buy and fix up the existing hotel, $12 million was raised from online pledges. It’s “the first ever crowdfunded building in New York coming to completion, from A to Z,” said Rodrigo Nino, chief executive officer of Prodigy Network, which is gut-renovating the building with partners. Until now, “everything has been about promises.” Reprinted courtesy of David M. Levitt, Bloomberg and Oshrat Carmiel, Bloomberg Read the court decision
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Dangerous Condition, Dangerous Precedent: California Supreme Court Expands Scope of Dangerous Condition Liability Involving Third Party Negligent/Criminal Conduct

August 19, 2015 — R. Bryan Martin, Laura C. Williams, & Lawrence S. Zucker II – Haight Brown & Bonesteel LLP
In Cordova v. City of Los Angeles (filed 8/13/15, Case No. S208130), the California Supreme Court held a government entity is not categorically immune from liability where the plaintiff alleges a dangerous condition of public property caused the plaintiff’s injury, but did not cause the third party conduct which precipitated the accident. The case arises out of a traffic collision by which the negligent driving of a third party motorist caused another car to careen into a tree planted in the center median owned and maintained by the City of Los Angeles (“City”). Of the four occupants in the car that collided with the tree, three died and the fourth was badly injured. The parents of two of the occupants sued the City for a dangerous condition of public property under Government Code Section 835. The plaintiffs alleged the roadway was in a dangerous condition because the trees in the median were too close to the traveling portion of the road, posing an unreasonable risk of harm to motorists who might lose control of their vehicles. The City successfully moved for summary judgment, which plaintiffs appealed. On review, the Court of Appeal affirmed holding the tree was not a dangerous condition as a matter of law because there was no evidence that the tree had contributed to the criminally negligent driving of the third party motorist. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys R. Bryan Martin, Laura C. Williams and Lawrence S. Zucker II Mr. Martin may be contacted at bmartin@hbblaw.com Ms. Williams may be contacted at lwilliams@hbblaw.com And Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Thank You to Virginia Super Lawyers

July 13, 2017 — Christopher G. Hill - Construction Law Musings
Thank you to all of my peers and those at Virginia Super Lawyers for nominating and electing me to the Virginia Super Lawyers Rising Stars for 2011. I am particularly honored because this puts me in a group of only 2.5% of lawyers in Virginia. I am truly honored to be a part of this list. Add this honor to my election to the Virginia Business Legal Elite in Construction Law and 2010 has been a great year for my new firm! Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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