FAIRFIELD CONNECTICUT CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

When Is an Arbitration Clause Unconscionable? Not Often

April 05, 2021 — Christopher G. Hill - Construction Law Musings
Here at Construction Law Musings, I have discussed the pros and cons of various forms of Alternative Dispute Resolution (ADR), including arbitration. I am a fan of most ADR, but less of one for arbitration than for mediation. However, where the arbitration can be done under a good set of cost-containing rules and with an arbitrator that is experienced in construction, arbitration can help with the resolution of construction claims. Of course, arbitration provisions in construction contracts are routinely upheld by the courts of Virginia with limited exceptions. One of these exceptions is where the arbitration clause is unconscionable and therefore unenforceable. A recent case out of the Western District of Virginia, Marroquin v. Dan Ryan Builders Mid-Atlantic LLC, shows how high a hurdle it is to get a court to invalidate an arbitration provision. In this case, the Marroquins purchased a new construction home from the Defendants. As is often the case in such purchase transactions, Defendant provided a limited warranty agreement (in this case provided by Quality Builders Warranty Corporation (“QBW”)) that along with the sales contract contained a mandatory arbitration provision. The parties executed the limited warranty and the sale proceeded with the Marroquins taking possession. Over the next year or so, the County inspector’s office issued several correction orders to Defendant, and the Marroquins, through counsel, identified numerous defects in construction, many of which they alleged to remain unremedied. Needless to say, they sued for breach of statutory warranty and for breach of the limited warranty. Defendant removed the case to Federal District Court and then moved to compel arbitration. Read the court decision
Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

---

Design Immunity Does Not Shield Public Entity From Claim That it Failed to Warn of a Dangerous Condition

May 17, 2021 — Garret Murai - California Construction Law Blog
Readers of this blog are familiar with the concept of the design immunity defense. Codified at Government Code section 830.6, it provides in pertinent that a public entity is not liable for an injury caused by a plan or design of a public improvement where the plan or design has been “approved in advance . . . by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved” if the trial or appellate court finds that there “is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.” In the next case, Tansavatdi v. City of Rancho Palos Verdes, Case No. B293670 (January 29, 2021), the 2nd District Court of Appeal examined whether the design immunity defense also serves as a defense to a claim that a public entity has a duty to warn of a dangerous condition on public property. Read the court decision
Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

---

UK Court Rules Against Bechtel in High-Speed Rail Contract Dispute

March 29, 2021 — Peter Reina - Engineering News-Record
The U.K. subsidiary of Bechtel Inc. has lost its legal challenge against the owner of the U.K. London-Birmingham high-speed railroad project, HS2, over its failed bid for a roughly $140-million Construction Partner (CP) contract in early 2019. Reprinted courtesy of Peter Reina, Engineering News-Record Mr. Reina may be contacted at reina@btinternet.com Read the full story... Read the court decision
Read the full story...
Reprinted courtesy of

---

The ABCs of PFAS: What You Need to Know About Liabilities for the “Forever Chemical”

February 22, 2021 — Robert F. Walsh, Gregory S. Capps & R. Victoria Fuller - Complex Insurance Coverage Reporter
This article is based on a presentation the authors made at White and Williams LLP’s Virtual Coverage College® on October 22, 2020. Every year, hundreds of insurance professionals come to Philadelphia—this year via our online platform—to participate in a full day of lectures and interactive presentations by White and Williams lawyers and guest panelists about the latest issues and challenges involved in claim handling and insurance litigation. Visit coveragecollege.com for more information and stay tuned for Coverage College® 2021. Perfluoroalkyl and polyfluoroalkyl substances, commonly referred to as PFAS or PFOS, have been a key ingredient in numerous industrial and consumer products for decades. These man-made chemicals are prevalent and are also known for their longevity in the environment. More recently, PFAS have been the focus of thousands of lawsuits alleging personal injury and property damage. Some insurers have already questioned whether PFAS could rival asbestos in scope and bottom-line impacts. It is a legacy that confronts manufacturers and other defendants and insurers today. This article provides a primer on PFAS, including the current regulatory framework and litigation landscape. We also identify some key emerging coverage issues insurers should be aware of when dealing with PFAS claims under liability and first-party property policies. Reprinted courtesy of Robert F. Walsh, White and Williams LLP and Gregory S. Capps, White and Williams LLP Mr. Walsh may be contacted at walshr@whiteandwilliams.com Mr. Capps may be contacted at cappsg@whiteandwilliams.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Haight’s Stevie Baris Selected for Super Lawyers’ 2021 Northern California Rising Stars

July 19, 2021 — Stevie B. Baris - Haight Brown & Bonesteel LLP
Congratulations to Stevie Baris who was selected to the Super Lawyers 2021 Northern California Rising Stars list. Each year, no more than 2.5% of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. Read the court decision
Read the full story...
Reprinted courtesy of Stevie B. Baris, Haight Brown & Bonesteel LLP
Mr. Baris may be contacted at sbaris@hbblaw.com

---

Congratulations to Haight’s 2021 Super Lawyers San Diego Rising Stars

May 03, 2021 — Catherine M. Asuncion, Arezoo Jamshidi & Michael C. Parme - Haight Brown & Bonesteel LLP
Haight congratulates partners Michael Parme and Arezoo Jamshidi and associate Catherine Asuncion who were selected to the 2021 San Diego Super Lawyers Rising Stars list. Reprinted courtesy of Catherine M. Asuncion, Haight Brown & Bonesteel LLP, Arezoo Jamshidi, Haight Brown & Bonesteel LLP and Michael C. Parme, Haight Brown & Bonesteel LLP Ms. Asuncion may be contacted at casuncion@hbblaw.com Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com Mr. Parme may be contacted at mparme@hbblaw.com Read the court decision
Read the full story...
Reprinted courtesy of

---

California Court of Appeal Vacates $30M Non-Economic Damages Award Due to Failure to Properly Apportion Liability and Attorney Misconduct During Closing Argument

February 08, 2021 — Krsto Mijanovic, Peter A. Dubrawski, Arezoo Jamshidi & Catherine M. Asuncion - Haight Brown & Bonesteel LLP
On January 20, 2021, the California Court of Appeal, Second District, Division Six (Ventura), in Plascencia v. Deese (B299142), vacated a $30 million non-economic damages award in a highway fatality case because: (1) the award did not properly apportion non-economic damages among everyone at fault in violation of Proposition 51; and (2) the amount of the award appeared to have been influenced by plaintiffs’ counsel’s misconduct and prejudicial remarks during closing argument. In Plascencia, the plaintiffs sued several defendants for the wrongful death of their daughter arising from a highway fatality accident. All the defendants settled or were dismissed before trial except the trucking defendants. The highway fatality was caused when one defendant driver made an illegal U-turn on a highway as she left another defendant’s fruit stand. The plaintiffs’ daughter swerved to avoid the U-turn driver, lost control of her car, and crashed into the back of the trucking defendants’ diesel tractor-trailer. The truck driver had parked the truck on the side of the highway near the fruit stand, which the trucking defendants’ expert conceded fell below the standard of care. Reprinted courtesy of Krsto Mijanovic, Haight Brown & Bonesteel LLP, Peter A. Dubrawski, Haight Brown & Bonesteel LLP, Arezoo Jamshidi, Haight Brown & Bonesteel LLP and Catherine M. Asuncion, Haight Brown & Bonesteel LLP Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com Mr. Dubrawski may be contacted at pdubrawski@hbblaw.com Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com Ms. Asuncion may be contacted at casuncion@hbblaw.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Even Where Fraud and Contract Mix, Be Careful With Timing

April 12, 2021 — Christopher G. Hill - Construction Law Musings
I have often discussed the limited circumstances under which a construction contract claim and a fraud claim can coexist. A recent case from the Western District of Virginia federal court demonstrates that care is necessary even in those limited circumstances. In Fluor Fed. Sols., LLC v. Bae Sys. Ordinance Sys., the Court examined the question of a fraud statute of limitations under Virginia law. The basic facts found in the Complaint are these: In 2011, the United States Army awarded BAE Systems Ordinance Systems Inc. a basic ordering agreement under which BAE was responsible for modernization projects at the Radford Army Ammunition Plant. This action stems from a subcontract between Fluor Federal Solutions LLC and BAE, under which Fluor agreed to design and construct a new natural gas boiler at the plant. Fluor has completed work on the project, and BAE has accepted that work. Nonetheless, Fluor claims that BAE has refused or failed to pay for the balance of the project costs. Fluor alleges that BAE received several changes to its prime contract from the Army but did not pass those changes along to Fluor until after BAE solicited a bid from Fluor and entered a contract with Fluor to build a temporary facility. Instead, BAE continued to misrepresent the scope of the project. Fluor alleges that the change in plans increased costs substantially, but that BAE withheld information about those changes so that it could solicit lower bids. Fluor alleges that it requested a copy of BAE’s prime contract on numerous occasions, but BAE failed to provide a copy of it. Instead, Fluor submitted a request under the Freedom of Information Act. It received a copy of BAE’s prime contract on Oct. 3, 2018. Read the court decision
Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

---