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    Local # 0780
    433 Meadow St
    Fairfield, CT 06824

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    Expert Witness Engineer News and Information
    For Fairfield Connecticut

    Foreclosing Junior Lienholders and Recording A Lis Pendens

    Undocumented Debris at Mississippi Port Sparks Legal Battle

    Renee Zellweger Selling Connecticut Country Home

    Exceptions to Privette Doctrine Do Not Apply Where There is No Evidence a General Contractor Affirmatively Contributed to the Injuries of an Independent Contractor's Employee

    Home Builders Wear Many Hats

    Colorado’s New Construction Defect Law Takes Effect in September: What You Need to Know

    French Laundry Spices Up COVID-19 Business Interruption Debate

    Genuine Dispute Over Cause of Damage and Insureds’ Demolition Before Inspection Negate Bad Faith and Elder Abuse Claims

    Construction in Indian Country – What You Need To Know About Sovereign Immunity

    Few Homes Available to Reno Buyers, Plenty of Commercial Properties

    2018 Update to EPA’s “Superfund Task Force Report”

    Chinese Lead $92 Billion of U.S. Home Sales to Foreigners

    Connecticut District Court to Review Proposed Class Action in Defective Concrete Suit

    Federal Subcontractor Who Failed to Follow FAR Regulations Finds That “Fair” and “Just” are Not Synonymous

    Court’s Ruling on SB800 “Surprising to Some”

    Senior Housing Surplus Seen as Boomers Spur Building Boom

    Texas Construction Firm Officials Sentenced in Contract-Fraud Case

    Digital Twins – Interview with Cristina Savian

    Deducting 2018 Real Property Taxes Prepaid in 2017 Comes with Caveats

    Nevada Assembly Bill Proposes Changes to Construction Defect Litigation

    Alarm Cries Wolf in California Case Involving Privette Doctrine

    The Little Ice Age and Delay Claims

    Homebuilding in Las Vegas Slows but Doesn’t Fall

    DEP Plan to Deal with Noxious Landfill Fumes Met with Criticism

    Vacation Rentals: Liability of the Owner for Injury Suffered by the Renter

    A Third of U.S. Homebuyers Are Bidding Sight Unseen

    Want to Stay Up on Your Mechanic’s Lien Deadlines? Write a Letter or Two

    Was Jury Right in Negligent Construction Case?

    Sanctions Award Against Pro Se Plaintiff Upheld

    Testimony from Insureds' Expert Limited By Motion In Limine

    The Evolution of Construction Defect Trends at West Coast Casualty Seminar

    Dealing with Abandoned Property After Foreclosure

    Triple Points to the English Court of Appeal for Clarifying the Law on LDs

    "Abrupt Falling Down of Building or Part of Building" as Definition of Collapse Found Ambiguous

    Safety Accusations Fly in Dispute Between New York Developer and Contractor

    Apartment Investors Turn to Suburbs After Crowding Cities

    Colorado statutory “property damage” caused by an “occurrence”

    Insurer Must Defend Additional Insured Though Its Insured is a Non-Party

    Home Prices Up in Metro Regions

    Coverage Denied for Faulty Blasting and Improper Fill

    Focusing on Design Elements of the 2014 World Cup Stadiums

    Why Financial Advisers Still Hate Reverse Mortgages

    Construction Defect Notice in the Mailbox? Respond Appropriately

    Insurer's Denial of Coverage to Additional Insured Constitutes Bad Faith

    Canada’s Largest Homebuilder Sets U.S. Growth Plan

    Reversing Itself, Alabama Supreme Court Finds Construction Defect is An Occurrence

    Contractual Impartiality Requires an Appraiser to be Unbiased, Disinterested, and Unswayed by Personal Interest

    Lis Pendens – Recordation and Dissolution

    Update Relating to SB891 and Bond Claim Waivers

    Nationwide Immigrant Strike May Trigger Excusable Delay and Other Contract Provisions
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    DOD Contractors Receive Reprieve on Implementation of Chinese Telecommunications Ban

    September 14, 2020 —
    In our previous alert, we discussed the expansion on the Section 889(a)(1)(B) ban on certain Chinese telecommunications equipment and services to contractors and subcontractors who use the equipment and services in their internal operations. Effective August 13, 2020, federal agencies were prohibited from procuring, obtaining, extending, or renewing a contract with a contractor that uses equipment, systems, or services that use covered telecommunications equipment or services as a substantial or essential component or as critical technology, unless an exception applies or a waiver is granted. Since then we have received feedback from contractors, complaining about the difficulties in determining whether their internal operations use covered telecommunications equipment and services and the need for additional time to become compliant or even obtain enough information to submit a waiver request. Now it seems that Department of Defense (DoD) contractors and subcontractors may be getting a temporary reprieve. The DoD Under Secretary for Acquisition and Sustainment requested a waiver that would allow DoD to continue to execute procurement actions providing supplies, equipment, services, food, clothing, transportation, care, and support necessary to execute the DoD mission. The Director of National Intelligence granted the temporary waiver until September 30, 2020 pending a further review of waiver request. Depending upon the outcome of this additional review, the temporary waiver may be continued beyond September 30, 2020 if it is in the national security interests of the United States. Reprinted courtesy of Lori Ann Lange, Peckar & Abramson and Sabah Petrov, Peckar & Abramson Ms. Lange may be contacted at Ms. Petrov may be contacted at Read the court decision
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    Reprinted courtesy of

    Just When You Thought the Green Building Risk Discussion Was Over. . .

    May 25, 2020 —
    As a reader of Construction Law Musings, you no doubt realize that I am a big proponent of “green” or sustainable building. I have also been known to sound a bit like Eeyore when discussing the charge into the breach of green building without considering the potential risks. Thankfully, and despite some of the risk predictions made here (and elsewhere for that matter) there have not been but so many major court cases relating to these risks. However, as a recent article in ENR Magazine warns, this lack of litigation does not mean that you should let your guard down. Just because the economy, warnings by attorneys and others, and possible lack of financial incentive to sue have kept the litigation numbers down does not mean that the risks have gone away. LEED requirements, time horizons and other risks that have become evident during the process of vetting green building contracts and practices still must be dealt with in contracts and insurance policies. These risks are well laid out in the ENR article and in other places here at Musings so I won’t outline them in detail here. Read the court decision
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    Reprinted courtesy of The Law Office of Christopher G. Hill
    Mr. Hill may be contacted at

    LEEDigation: A Different Take

    June 22, 2020 —
    This weeks Guest Post Friday at Musings is a real treat. Sara Sweeney is a registered architect, LEED AP and GreenFaith Fellow in religious environmental leadership. Her 18-year architectural career reflects her passion and commitment to sustainable building design and stewardship of our natural environment. She is the founder of EcoVision LLC, a solutions-based research and consulting firm, grounded in sustainable design practices, environmental stewardship, and building science. Dude Every so often I come across a word that drives me nuts. A few years ago it was ‘Dude.’ Lately, it is ‘LEEDigation.’ It’s a new term to “describe green building litigation” coined by Chris Cheatham, a fine person and very knowledgeable attorney in construction law and a LEED AP as well. Per his definition, LEEDigation “could involve disputes arising from green building certification, could arise if a project fails to obtain government incentives or satisfy mandates for green building construction, or could simply result from improperly designed or constructed green building strategies. It all makes sense. So why does it drive me nuts? Round Peg. Square Hole. Although I fully understand why the term was coined, such a term keeps us in flat world, that is, the world of conventional design and construction. Designing and building to LEED standards, or rather, just designing and building sustainably in general, whether to meet a third party standard or not, is a different way than what we have been used to. Period. Whereas our conventional way is focused on first costs, and sees the building more as a commodity than the human imprint and legacy on Earth, sustainable design and building is a process which, at its best, considers the economic impacts of NOT building responsibly. It is a more holistic way of building and balances long-term costs and implications with short term costs. Read the court decision
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    Reprinted courtesy of The Law Office of Christopher G. Hill
    Mr. Eyerly may be contacted at

    No Global MDL for COVID Business Interruption Claims, but Panel Will Consider Separate Consolidated Proceedings for Lloyds, Cincinnati, Hartford, Society

    August 24, 2020 —
    In a widely anticipated ruling, the Judicial Panel on Multidistrict Litigation has denied two motions to centralize pretrial proceedings in hundreds of federal cases seeking coverage for business interruption losses caused by the COVID-19 pandemic. However, the Panel has ordered expedited briefing on whether four separate consolidated proceedings should be set up for four insurers – Cincinnati, Society, Hartford, and Lloyds – who appear to be named in the largest number of claims. In seeking a single, industry-wide MDL proceeding, some plaintiffs had argued that common questions predominated across the hundreds of pending federal suits: namely, [1] the question of what constituted ‘physical loss or damage’ to property, under the allegedly standardized terms of various insurers’ policies; [2] the question whether various government closure orders should trigger coverage under those policies, and [3] the question whether any exclusions, particularly virus exclusions, applied. Reprinted courtesy of Eric B. Hermanson, White and Williams and Konrad R. Krebs, White and Williams Mr. Hermanson may be contacted at Mr. Krebs may be contacted at Read the court decision
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    Reprinted courtesy of

    Colorado Legislature Kills SB 20-138 – A Bill to Extend Colorado’s Statute of Repose

    June 22, 2020 —
    As previously reported, SB 20-138, “Concerning Increased Consumer Protection for Homeowners Seeking Relief for Construction Defects,” would have extended the Colorado statute of repose applicable to construction defect claims. Senate Bill 20-138, if enacted, would have:
    1. Extended Colorado’s statute of repose for construction defects from 6+2 years to 10+2 years;
    2. Required tolling of the statute of repose until the claimant discovers not only the physical manifestation of a construction defect, but also its cause; and
    3. Permitted statutory and equitable tolling of the statute of repose.
    Read the court decision
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    Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
    Mr. McLain may be contacted at

    U.S. Department of Defense Institutes New Cybersecurity Maturity Model Certification

    July 13, 2020 —
    Contractors doing business with the Federal Government, particularly with the Department of Defense (“DoD”), commonly handle sensitive information that is not intended to be disseminated. Controlled Unclassified Information (“CUI”) is one such type and is more specifically defined as “information that requires safeguarding or dissemination controls pursuant to and consistent with laws, regulations and government-wide policies.”1 Because some DoD contracts require contractors to handle CUI, certain safeguards have been put in place to ensure its security. This article briefly touches on the current cybersecurity protocols, followed by a discussion of the new system being developed by the DoD, and what contractors most need to know about the new system. The Defense Federal Acquisition Regulation Supplement (“DFARS”) has long required contractors to comply with certain cybersecurity standards, as published by the National Institute of Standards and Technology (“NIST”). Specifically, DFARS sought to implement the cybersecurity framework found in NIST Special Publication (“SP”) 800-171, entitled “Protecting Controlled Unclassified Information in Nonfederal Systems and Organizations.” NIST SP 800-171 sets forth fourteen (14) families of recommended security requirements for protecting the confidentiality of CUI in nonfederal systems and organizations, including, among others, access control, audit and accountability, incident response, personnel security, and system and information integrity. However, after a series of data breaches, the DoD reassessed the efficacy of the continued use of NIST SP 800-171 and ultimately decided to institute a new methodology to ensure the security of CUI. Read the court decision
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    Reprinted courtesy of Joseph N. Frost, Peckar & Abramson
    Mr. Frost may be contacted at

    Carrier Has Duty to Defend Claim for Active Malfunction of Product

    October 19, 2020 —
    Rejecting that the underlying claim was based solely on faulty workmanship, the Third Circuit held the insurer had a duty to defend allegations of a malfunctioning product. Nautilus Ins. Co. v. 200 Christina Street Partners LLC, 2020 U.S. App. LEXIS 22118 (3d Cir. July 16, 2020). The insureds were sued by homeowners in two separate suits alleging defects in the construction of their homes. Nautilus defended under a reservation of rights. Nautilus filed suit in District Court and moved for judgment on the pleadings. The District Court denied the motion, finding Nautilus had a duty to defend because the underlying claims sufficiently alleged product--related tort clams that could fall within the scope of coverage under the relevant policies. The Third Circuit affirmed. There was a distinction between a claim of faulty workmanship, for which the insurer did not have a duty to defend, and a claim of "active malfunction" of a product, for which an insurer did have such a duty. An active malfunction was sufficiently fortuitous as to constitute an "occurrence." 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

    Enforcement Of Contractual Terms (E.G., Flow-Down, Field Verification, Shop Drawing Approval, And No-Damage-For-Delay Provisions)

    May 04, 2020 —
    What you contractually agree to matters, particularly when you are deemed a sophisticated entity. This means you can figuratively live or die by the terms and conditions agreed to. Don’t take it from me, but it take it from the Fourth Circuit’s decision in U.S. f/u/b/o Modern Mosaic, Ltd. v. Turner Construction Co., 2019 WL 7174550 (4th Cir. 2019), where the Court started off by stressing, “One of our country’s bedrock principles is the freedom of individuals and entities to enter into contracts and rely that their terms will be enforced.” Id. at *1. This case involved a dispute between a prime contractor and its precast concrete subcontractor on a federal project. The subcontractor filed a Miller Act payment bond lawsuit. The trial court ruled against the subcontractor based on…the subcontract’s terms! So, yes, what you contractually agree to matters. Example #1 – The subcontractor fabricated and installed precast concrete panels per engineering drawings. However, the parking garage was not built per dimensions meaning the panels it fabricated would not fit. The subcontractor had to perform remedial work on the panels to get them to fit. The subcontractor pursued the prime contractor for these costs arguing the prime contractor should have field verified the dimensions. The problem for the subcontractor, however, was that the subcontract required the subcontractor, not the prime contractor, to field verify the dimensions. Based on this language that required the subcontractor to field verify existing conditions and take field measurements, the subcontractor was not entitled to its remedial costs (and they were close to $1 Million). Furthermore, and of importance, the Court noted that the subcontract contained a flow down provision requiring the subcontractor to be bound by all of the terms and conditions of the prime contract and assume those duties and obligations that the prime contractor was to assume towards the owner. While this flow-down provision may often be overlooked, here it was not, as it meant the subcontractor was assuming the field verification duties that the prime contractor was responsible to perform for the owner. Read the court decision
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    Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
    Mr. Adelstein may be contacted at