Connecticut Construction Lawyer


Basing a Claim on the Total Cost Approach is Likely Throwing Good Money After Bad

Construction projects never go completely as planned. Construction managers, general contractors, subcontractors and suppliers all realize that changes in the work may be required for any number of reasons. For example, an area of the site may not become available due to the lack of an easement; there may be poor communication and/or coordination between trades; plans and/or specifications may contain certain deficiencies; critical shipments may be delayed; or, as allowed by most construction contracts, the owner simply may make design changes after the commencement of the work. One or more of the foregoing situations arises on almost every project. As a result, it is expected that construction schedules will be periodically updated during a project to address where the actual performance of the work was not completed in accordance with the original schedule. Schedule revisions are so commonplace that some specifications require construction schedules to be updated on a monthly basis ..


Design Professional Liability Raises Interesting Questions

Today, in many instances, the design/bid/build project delivery system has been modified through the use of construction managers (either at-risk or advisors) and owner’s representatives, or has been entirely usurped by a design-build arrangement. However, there are still many projects constructed using the traditional approach, where an owner first contracts with a design professional (either an engineer or an architect); the design professional then prepares a complete set of construction documents that the prospective general contractors rely upon to submit their bids; and the owner awards the contract for the project’s construction to the successful general contractor. The general contractor, in turn, hires various subcontractors and suppliers who then hire their sub-subcontractors and suppliers. As a result, there are a great number of individuals and entities relying upon the design professional’s work. The question is whether all these individuals and entities may hold the desig..


Expansion of State’s Affirmative Action Program May Be Problematic

In Connecticut, the state’s Commission on Human Rights and Opportunities administers an affirmative action program that has, until recently, only applied to state public works construction projects whose cost is greater than $50,000. Although the program has admirable goals, its implementation has been inconsistent. Part of the problem is the Commission’s inability to effectively administer the program. For example, effective January 1, 2015, the Commission instituted a “temporary policy” that allowed it to retain 2 percent retainage for a period of at least 120 days while the Commission “works diligently to eliminate of its backlog” of affirmative action plans requiring approval. Almost a year later, that temporary policy remains in effect despite its questionable validity. Section 46a-68j-26 requires the Commission to review affirmative actions plans within 60 days of receipt; yet, it has failed to do so. As a result, by executive fiat, the Commission gave itself the right to retain..


The Little Miller Act Time Limits are Only Mandatory for the Claimant and Not the Surety

Every state in the country allows those that supply labor, materials, and/or services for the improvement of private property to claim an interest in the improved property as security for their payment. Although the procedure for perfecting those interests vary from state to state, each state does provide for such security devices, which are generally known as mechanic’s liens. However, the governments, which created these statutory rights that encumber privately held property, have exempted publicly owned land from any such claims. Notwithstanding the foregoing, the statutory schemes that exempt public lands from the mechanic’s lien laws do not leave claimants without a remedy. The governments that have created a system where mechanic’s liens may be filed against privately owned land require general contractors on public projects to post surety bonds know as “payment bonds” or “labor and materials bonds,” that guarantee the payment for all those that supply labor, material, and/or se..


A Recent Supreme Court Decision Found an Owner of a Construction Company Personally Liable to the Owners of a Project

As most people are aware, one of the benefits of doing business as a corporation or limited liability company is that, generally speaking, the owners of the company cannot be held personally liable for the company’s debts. The exception to that general rule is that a court may pierce the corporate veil and hold the company owners personally liable if the company owners are found to have improperly used the corporate form, or have used the corporate form to commit wrongful acts. Nonetheless, even a cursory of the caselaw indicates that plaintiffs do not often prevail when they are attempting to pierce the corporate veil. The statement of the law with regard to piercing the corporate view is quite simple. In All Phase Builders, LLC v. New City Rests., 2011 Conn. Super. LEXIS 1793, *20-21, 2011 WL 3483368 (Conn. Super. Ct. July 12, 2011), the court ruled: “In order to pierce the corporate veil, a plaintiff must plead and prove that the corporate shield can be pierced under either the in..


National Labor Relations Board Expands Joint Employer Status

In a 3-2 decision along party lines on August 27, 2015, the National Labor Relations Board dealt a significant blow to contractors and other businesses that rely on staffing agencies to supply their workers. In this highly anticipated decision, the NLRB significantly expanded and overturned more than thirty (30) years of established law by significantly broadening its joint employer standard. The Board Majority characterized its former longstanding joint employer analysis as “out of step with changing economic circumstances,” specifically noting the growth in contingent employment relationships, noting that more than 2.87 million of the nation’s workers were employed through employment agencies in August 2014 If this decision survives on appeal, employers who currently rely upon staffing agencies will be forced to reevaluate their business model for obtaining labor. Under the previous standard, the NLRB reserved joint employer status for an employer that exercised actual, direct contr..


Contractual Time Limits for Providing Notice of Claim Must be Taken Seriously

The Connecticut Appellate Court recently issued a decision that should cause every contractor some concern. In J. WM. Foley Inc. v. United Illuminating Co., 158 Conn. App. 27 (Conn.App. 2015), the Appellate Court upheld a decision that denied a contractor’s $4.7 million delay claim because the contractor did not provide proper notice of the claim within the 10 days required by the contract. The case is disconcerting because the court’s decision appears to be based upon the contractor’s failure to strictly comply with the contract’s notice provision. There is no discussion indicating that the owner was harmed or prejudiced by the delay in receiving notice of the claim. Moreover, the decision acknowledges that the contractor had provided the owner with notice of events giving rise to the claim. In fact, despite denying the delay claim, the trial court awarded the plaintiff over one million dollars for its direct costs, which arose out of the same facts as the delay claim. The project un..


Only the “Owner” may seek Judicial Discharge of Mechanic’s Liens

The Connecticut Superior Court recently decided a case of first impression regarding the right to file an application for discharge of mechanic’s liens. The court in Grade A Mkt., Inc. v. Surplus Contrs., LLC held that a lessee did not have “standing” to file an application for discharge of mechanic’s liens and dismissed the tenant’s application. Grade A Mkt., Inc. v. Surplus Contrs., LLC, 2015 Conn. Super LEXIS 1342 (Conn. Super. May 26, 2015). In layman’s terms, “standing” is the right to have the court decide your case. The Grade A Mkt decision is interesting because it limits the ability of a tenant to obtain a discharge of mechanic’s liens even though the tenant’s lease with the owner may require the tenant to obtain a discharge of mechanic’s liens filed by contractors performing work for the tenant. Mechanic’s liens are a statutory right that the legislature created to provide contractors and/or suppliers that furnish labor, materials, and/or services to a property with security..


Recent Local Law Shows that the Law’s Understanding of Blasting is not Improving

In 2003, I published an article in The Journal of Explosives Engineering entitled “The Laws Governing Blasting,” in which I explained that, despite the fact that blasting is the most widely used method for rock removal on construction projects, court decisions pertaining to blasting damage claims often wrongfully hold blasters liable for alleged damage their blasting could not have possibly caused. As my article explains, these decisions reach the wrong conclusion because of a general misunderstanding of the science governing blasting. By citing technical and legal sources, the article demonstrates that courts often ignore scientific evidence in favor of lay testimony that the blasting caused damage because cracks were noticed after the building shook. However, years of research by the United States Bureau of Mines (“USBM”) demonstrates that such anecdotal evidence is not reliable or accurate. A fundamental principle from the USBM research stated in USBM Bulletin 8507 is that blast ge..


Recent Supreme Court Case Teaches Important Lessons

It is no secret that public works construction is a difficult business. On any given project there are innumerable ways that things can go wrong. With any project involving excavation and underground utilities, encountering changed conditions should not be a surprise. Of course, such changed conditions are not the contractor’s responsibility. What is the contractor’s responsibility, however, is providing the public owner with proper notice of its claims in accordance with the subject agreement. One of the reasons public works construction projects are more onerous than their private counterparts is because public owners rarely negotiate contract terms. Contracts that are slanted significantly in the public owner’s favor are the norm. Thus, as the contractor in a recent state Supreme Court decision learned, it is vitally important to read the contract and abide by its terms. One of the lessons from Old Colony Cosntr., LLC v. Town of Southington, 316 Conn. 202 (Conn. April 21, 2015) is..



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