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    Home Builders & Remo Assn of Fairfield Co
    Local # 0780
    433 Meadow St
    Fairfield, CT 06824

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    Local # 0740
    20 Hartford Rd Suite 18
    Salem, CT 06420

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    Local # 0720
    2189 Silas Deane Highway
    Rocky Hill, CT 06067

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    Local # 0755
    2189 Silas Deane Hwy
    Rocky Hill, CT 06067

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    Local # 0710
    110 Brook St
    Torrington, CT 06790

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    Bloomfield, CT 06002

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    Building Consultant News and Information
    For Fairfield Connecticut

    Negligence Per Se Claim Based Upon Failure to Pay Benefits Fails

    Contractor’s Unwritten Contractual Claim Denied by Sovereign Immunity; Mandamus Does Not Help

    Toronto Contractor Bondfield Wins Court Protection as Project Woes Mount

    Insureds Survive Motion to Dismiss Civil Authority Claim

    Municipalities Owe a Duty to Pedestrians Regardless of Whether a Sidewalk Presents an “Open and Obvious” Hazardous Condition. (WA)

    Colorado Court of Appeals Finds Damages to Non-Defective Property Arising From Defective Construction Covered Under Commercial General Liability Policy

    How to Build a Water-Smart City

    Locals Concerns over Taylor Swift’s Seawall Misdirected

    Construction Payment Remedies: You May be Able to Skate by, But Why?

    Construction Defect Class Action Lawsuit Alleges National Cover-up of Pipe Defects

    Litigation Privilege Saves the Day for Mechanic’s Liens

    Client Alert: Catch Me If You Can – Giorgio Is No Gingerbread Man

    Indemnification Against Release/“Disposal” of Hazardous Materials

    Insurance Policy Language Really Does Matter

    Concrete Worker Wins Lawsuit and Settles with Other Defendant

    Don’t Forget to Mediate the Small Stuff

    Morrison Bridge Allegedly Crumbling

    Court Finds that Subcontractor Lacks Standing to Appeal Summary Judgment Order Simply Because Subcontractor “Might” Lose at Trial Due to Order

    U.S. Stocks Fluctuate Near Record After Housing Data

    Constructive Change Directives / Directed Changes

    ‘Revamp the Camps’ Cabins Displayed at the CA State Fair

    Wisconsin Supreme Court Holds that Subrogation Waiver Does Not Violate Statute Prohibiting Limitation on Tort Liability in Construction Contracts

    California Appeals Court Remands Fine in Late Completion Case

    Insurance Lawyers Recognized by JD Supra 2020 Readers' Choice Awards

    Newmeyer Dillion Announces New Partners

    The "Dark Overlord" Strikes The Practice Of Law: What Law Firms Can Do To Protect Themselves

    Montana Supreme Court: Insurer Not Bound by Insured's Settlement

    Construction Defects in Roof May Close School

    Construction Feb. Jobs Jump by 61,000, Jobless Rate Up from Jan.

    New Hampshire’s Statute of Repose for Improvements to Real Property Does Not Apply to Product Manufacturers

    Negligent Failure to Respond to Settlement Offer Is Not Bad Faith

    Colorado Senate Revives Construction Defects Reform Bill

    Feds to Repair Damage From Halted Border Wall Work in Texas, California

    Ohio Court of Appeals: Absolute Pollution Exclusion Bars Coverage For Workplace Coal-Tar Pitch Exposure Claims

    De-escalating The Impact of Price Escalation

    The Quiet War Between California’s Charter Cities and the State’s Prevailing Wage Law

    Excess-Escape Other Insurance Provision Unenforceable to Avoid Defense Cost Contribution Despite Placement in Policy’s Coverage Grant

    London Office Builders Aren’t Scared of Brexit Anymore

    Finding of No Coverage Overturned Due to Lack of Actual Policy

    Common Law Indemnification - A Primer

    Connecticut Supreme Court Finds Faulty Work By Subcontractor Constitutes "Occurrence"

    Details of Sealed Whistleblower Charges Over Cuomo Bridge Bolts Burst Into Public View

    Construction Defects Up Price and Raise Conflict over Water Treatment Expansion

    Maine Court Allows $1B Hydropower Transmission Project to Proceed

    Safe Harbors- not just for Sailors anymore (or, why advance planning can prevent claims of defective plans & specs) (law note)

    Woman Files Suit for Property Damages

    No Duty to Defend Under Renter's Policy

    Candlebrook Adds Dormitories With $230 Million Purchase

    Rancosky Adopts Terletsky: Pennsylvania Supreme Court Sets Standard for Statutory Bad Faith Claims

    Construction Site Blamed for Flooding
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    The Fairfield, Connecticut Building Consultant Group at BHA, leverages from the experience gained through more than 7,000 construction related expert witness designations encompassing a wide spectrum of construction related disputes. Leveraging from this considerable body of experience, BHA provides construction related trial support and expert services to Fairfield's most recognized construction litigation practitioners, commercial general liability carriers, owners, construction practice groups, as well as a variety of state and local government agencies.

    Building Consultant News & Info
    Fairfield, Connecticut

    Wisconsin Court of Appeals Re-affirms American Girl To Find Coverage for Damage Caused by Subcontractors

    September 20, 2021 —
    The trial court's finding of no occurrence and no property damage due to faulty workmanship was reversed by the appellate court. No. 5 Walworth v. Engerman Contracting, Inc., 2021 Wis. App. LEXIS 401 (Wis. Ct. App, July 30, 2021). Engerman was the general contractor on a construction project at a residence. Engerman was hired to build a poll complex. Engerman subcontracted the project to Downes Swimming Pool Co., Inc. Downes purchased shotcrete (sprayed concrete) from Otto Jacobs Company LLC for the swimming poll walls and base. After completion, the pool immediately began leaking. An investigation determined that the shotcrete material was not installed correctly, contributing to cracking in the pool walls and the steel reinforcing bars were not sufficient to prevent cracks in the pool walls. The owner demolished the pool and constructed a new one. Thereafter, the owner sued Engerman, its insurers (General Casualty Company of Wisconsin and West Bend Mutual Insurance Company) and Downes and its insurer. Downes filed a third-party complaint against Jacobs and its insurer (Acuity Mutual Insurance Company) alleging Jacobs negligently provided inferior shotcrete to Downes. Read the court decision
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    Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
    Mr. Eyerly may be contacted at

    A Court-Side Seat: Permit Shields, Hurricane Harvey and the Decriminalization of “Incidental Taking”

    May 31, 2021 —
    This is a brief review of some of the significant environmental (and administrative law decisions) released the past few weeks. THE U.S. SUPREME COURT On April 22, 2021, the Court decided two important administrative law cases: Carr, et al. v. Saul and AMG Capital Management v. Federal Trade Commission. Carr, et al. v. Saul In this case, the constitutionality of Social Security Administrative Law Judges (ALJs) hearing disability claims disputes was at issue. More precisely, were these ALJs selected in conformance with the Appointments Clause of the Constitution? A similar issue was litigated in the case of Lucia v. Securities and Exchange Commission. There, the Court held that many of the agency’s ALJs were not selected in conformance with the Appointment’s Clause. Here, the Court held that this issue could be decided by the courts without compelling the litigants to first exhaust their administrative remedies. Thousands of ALJs are employed by the federal government, and it may take some time to resolve this question for every agency. AMG Capital Management v. Federal Trade Commission In this case, the court held, unanimously, that the Commission does not presently have the authority to employ such equitable remedies as restitution or disgorgement. Read the court decision
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    Reprinted courtesy of Anthony B. Cavender, Pillsbury
    Mr. Cavender may be contacted at

    Court of Appeals Affirms Dismissal of Owner’s Claims Based on Contractual One-Year Claims Limitations Period

    October 04, 2021 —
    In a recent unpublished decision – Tadych v. Noble Ridge Construction, Inc.– the Washington State Court of Appeals, Division One, held that a one-year contractual claim limitations clause was valid and enforceable. The Tadych decision is important because it reiterates the strict approach courts will take to a claim limitations clause less than the statutory six years for breach of contract claims prescribed by RCW 4.16.040(1). In other words, when the parties agree to shorten the limitations period, the agreement will be enforced barring any procedural or substantive unconscionability. In Tadych, plaintiff owners (the Tadychs) contracted with defendant contractor (Noble Ridge Construction, Inc., or NRC) for the construction of a custom home in 2012. The contract provided a one-year claim limitations clause in which claims could be raised, and that all claims not raised in the one-year period would be waived. In December 2013, as the project neared completion, the Tadychs met with NRC to identify any outstanding project issues. The Tadychs noted several, including rainwater pools at the landing at the bottom of the stairs and several nicks and cracks on the stucco exterior walls. Read the court decision
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    Reprinted courtesy of Cassidy Ingram, Ahlers Cressman & Sleight
    Ms. Ingram may be contacted at

    Attorneys' Fee Clauses are Engraved Invitations to Sue

    April 19, 2021 —
    As we start another trip around the sun, hopefully you are in the process of updating your form contracts, including purchase and sale agreements and express written warranties. Because the law and litigation landscape continually changes, it is a good practice to periodically update the forms you use in order to give yourself a fighting chance if and when the plaintiffs' attorneys come knocking on your door. As you engage in this process, I hope that you will take a critical look at whether your contracts include a prevailing party attorneys' fees clause and, if so, whether you should leave it in there. In Colorado, parties are entitled to recover attorneys' fees only if provided for by statute or by contract. Historically, plaintiffs' attorneys relied on two statutes, the Colorado Consumer Protection Act and Colorado's Statutory Interest statute, to recover attorneys’ fees in construction defect cases. In 2003, the Colorado legislature capped treble damages and attorneys' fees under the Colorado Consumer Protection Act at $250,000, effectively restricting plaintiffs' attorneys from relying on the CCPA to recoup their attorneys' fees, especially in large cases. In 2008, the Colorado Supreme Court issued its decision in Goodyear v. Holmes, stating that plaintiffs can only claim prejudgment interest under Colorado's Statutory Interest statute, in cases where they have already spent money on repairs, not when they are suing for an estimate of what repairs will cost in the future. Without either the CCPA or the prejudgment interest statute to recover attorneys' fees, plaintiffs' attorneys most often now rely on the prevailing party attorney fee clause in contracts between the owner and builder, or in the declaration of covenants, conditions and restrictions in situations where a claim is prosecuted by an HOA. Read the court decision
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    Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
    Mr. McLain may be contacted at

    Florida Governor Signs COVID-19 Liability Shield

    May 17, 2021 —
    On March 29, 2021, Florida Governor Ron DeSantis signed into law Florida Statute 768.38, granting significant protections to business entities, educational institutions, governmental entities, and religious institutions from claims related to COVID-19 if they made a good faith effort to follow guidelines to prevent the spread of the coronavirus. The law is effective immediately and applies to actions filed after March 29, 2021. Recognizing the financial impact that the pandemic has had across the State of Florida, the new law aims to dissuade potential claimants from filing meritless claims for personal injuries, wrongful death, or other damages allegedly due to COVID-19 exposure in a few key ways. Read the court decision
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    Reprinted courtesy of Andrea de Oña, Lewis Brisbois
    Ms. Oña may be contacted at

    Call to Conserve Power Raises Questions About Texas Grid Reliability

    July 05, 2021 —
    With the days getting hotter and tropical activity picking up in the Gulf of Mexico, concerns are mounting about the reliability of the Texas power supply after the state’s main grid operator asked residents to go on a five-day energy conservation diet. Reprinted courtesy of Autumn Cafiero Giusti, Engineering News-Record ENR may be contacted at Read the full story... Read the court decision
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    Reprinted courtesy of

    Measure Of Damages for Breach of Construction Contract

    October 18, 2021 —
    How do you determine damages for a breach of a construction contract? If you are interested in pursing a breach of a construction contract action, this is something you NEED TO KNOW! The recent Fourth District Court of Appeal’s decision in Cano, Inc. v. Judet, 46 Fla. L. Weekly D2083b (Fla. 4th DCA 201) explains:
    Where a contractor breaches a construction contract, and the owner sues for breach of contract and the cost to complete, the measure of damages is the difference between the contract price and the reasonable cost to perform the contract. See Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037, 1039-40 (Fla. 1982). In Grossman, the supreme court adopted subsection 346(1)(a) of the Restatement (First) of Contracts (1932), which it concluded was “designed to restore the injured party to the condition he would have been in if the contract had been performed.” Id. at 1039. In other words, the owner will obtain the benefit of his bargain [and this is known as benefit of the bargain damages]. But where there is a total breach of the contract as opposed to a partial breach, an injured party may elect to treat the contract as void and seek damages that will restore him to the position that he was in prior to entering into the contract or the party may seek the benefit of his bargain. See McCray v. Murray, 423 So. 2d 559, 561 (Fla. 1st DCA 1982).
    In Judet, an owner entered into a fixed price contract with a contractor to repair damage from a lightning strike. The contract amount was $300,000 payable in $30,000 installments. A few months after the contractor commenced performance, the owner terminated the contractor because the owner learned the contractor had not obtained required electrical and plumbing permits. At this time, the owner had paid the contractor $90,000. The contractor recorded a $40,000 lien for an amount it claimed it was owed and filed a lawsuit to foreclose its construction lien. The owner counter-sued the contractor to recover a claimed over-payment and a disgorgement of monies for unpermitted work. The owner was NOT claiming benefit of the bargain damages, but rather, damages for the contractor’s total breach “to restore him to the position that he was in prior to entering into the contract.” Read the court decision
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    Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
    Mr. Adelstein may be contacted at

    20 Wilke Fleury Attorneys Featured in Sacramento Magazine 2020 Top Lawyers!

    August 10, 2021 —
    Congratulations to Wilke Fleury’s featured attorneys who made the Sacramento Magazine’s Top Lawyer List for 2020! Each attorney has been awarded an accolade in the following practice areas: Kathryne Baldwin – Insurance Dan Baxter – Business Litigation & Government Contracts Adriana Cervantes – Medical Malpractice Heather Claus – Health Care Aaron Claxton – Health Care Dan Egan – Bankruptcy and Creditor/Debtor Samson Elsbernd – Employment & Labor Danny Foster – Litigation Insurance David Frenznick – Construction & Construction Litigation George Guthrie – Real Estate & Construction Litigation Read the court decision
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    Reprinted courtesy of Wilke Fleury LLP