Fairfield Connecticut Construction Expert Witness Directory

Real Estate & Construction News Roundup (1/10/24) – New Type of Nuclear Reactor, Big Money Surrounding Sports Stadiums, and Positivity from Fannie Mae’s Monthly Consumer Survey

February 05, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, the commercial real estate market poses a risk to financial stability, New York City moves towards net-zero building emissions, workers at several Los Angeles area hotels tentatively agree to a new contract, and more!

For the first time since Fannie Mae’s monthly consumer survey was launched in 2010, more homeowners overall believe rates will go down rather than up. (Diana Olick, CNBC)
According to U.S. regulators, the commercial real estate market is potentially a leading risk to financial stability in 2024, noting rising vacancy rates, declining values of office properties, high interest rates and the possibility of an economic slowdown. (Jim Tyson, CFO Dive)
New York City will soon begin penalizing owners of buildings that emit too much greenhouse gas — a move toward requiring net-zero building emissions by 2050. (Jennifer Kingson, Axios)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

Are Construction Contract Limitation of Liability Clauses on the Way Out in Virginia?

March 11, 2024 — Christopher G. Hill - Construction Law Musings
Remember BAE Systems and Fluor? This post is the third here at Construction Law Musings relating to this case which is a seemingly never-ending source for content. In the prior post discussing this case, the Court found that Va. Code 1-4.1:1 which bars waiver of a right to payment before work is performed did not apply because Fluor had provided work before execution of the contract or any change orders. In the most recent opinion in this long-running litigation, and after a motion to reconsider by Fluor that was granted, the Court re-examined this finding along with the contractual language found in the Limitation of Damages (LOD) clause and came to the opposite conclusion regarding certain change orders that remained unpaid by BAE. The Court first looked to the language of the contract itself and specifically the language in the LOD provision that states “Except as otherwise provided in this Subcontract.” The Court then looked at the change order provision and its typical equitable adjustment language and the mandatory nature of the equitable adjustment language. The Court found that the LOD provisions did not apply to change orders both because price increases due to change orders are not “damages” and because of the exception language in the LOD provision itself. Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Mass Timber Reduces Construction’s Carbon Footprint, But Introduces New Risk Scenarios

March 04, 2024 — Michael Bruch & Franck Fumat - Allianz Commercial
Mass timber has the potential to be a critical building component for the cities of the near future given the need for the construction sector to reduce its reliance on concrete and steel to lower its Co2 emissions. However, as this market grows and mass timber buildings evolve to greater heights, the construction risk landscape will also be transformed, bringing risk management challenges for companies, according to the new Emerging Risk Trend Talk report from Allianz Commercial. “The emergence of mass timber as a sustainable construction alternative represents a significant opportunity for the building sector to reduce its carbon footprint while also satisfying a demand for a material that is more cost-efficient but as durable as steel and concrete,” says Michael Bruch, Global Head of Risk Advisory Services at Allianz Commercial. “However, in any industry, deployment of new materials or processes can result in new risk scenarios, potential defects, or unexpected safety consequences, as well as bringing benefits, and mass timber is no different. Given this market’s expected future growth, companies should do all they can to develop a greater understanding of their exposures including fire, water damage, repetitive loss scenarios and even termite infestation, and ensure they have robust loss prevention measures in place to combat these.” The need for mass timber The building and construction sector is among the largest contributors to Co2 emissions, accounting for over 34% of energy demand and around 37% of energy and process related Co2 emissions in 2021 [1]. Given emissions reduction is essential to meet climate change commitments around the world, the need for more sustainable solutions in the built environment has become increasingly important, driven by growing investor and consumer concerns, and legislation, regulation and reporting requirements evolving quickly in many jurisdictions around the world. Read the full story...
Reprinted courtesy of Allianz Commercial

Judicial Economy Disfavors Enforcement of Mandatory Forum Selection Clause

December 16, 2023 — David Adelstein - Florida Construction Legal Updates
Mandatory forum (venue) selection provisions are generally construed in favor of enforceability. Parties agreed to the forum for disputes so why not enforce them, right? A recent federal district court case out of the Eastern District of Louisiana exemplifies an exception grounded in judicial economy which disfavors the enforceability of mandatory forum selection provisions. Keep in mind that this judicial economy exception is fairly limited but the fact pattern below demonstrates why enforcing the mandatory forum selection provision was disfavored due to judicial economy. In U.S. f/u/b/o Exposed Roof Design, LLC v. Tandem Roofing, 2023 WL 7688584 (E.D.La. 2023), a sub-subcontractor filed a Miller Act payment bond lawsuit against the prime contractor and the prime contractor’s Miller Act payment bond sureties. The sub-subcontractor also sued the subcontractor that hired it. However, the sub-subcontractor’s subcontract with the subcontractor included a mandatory forum selection provision in a different form. The subcontractor moved to sever and transfer the sub-subcontractor’s claims against it to the forum agreed upon in the subcontract. The trial court denied the severance and the transfer. Below are the reasons. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Atlanta Office Wins Defense Verdict For Property Manager On Claims By Vendor, Cross-Claims By Property Owner

January 08, 2024 — Lewis Brisbois Newsroom
Atlanta, Ga. (December 18, 2023) – Atlanta Partner Adi Allushi and Associate Cecilia Walker recently secured a defense verdict for a national property management corporation on claims brought by a vendor and cross-claims lodged by the property owner. Lewis Brisbois’ client is a national corporation, over a century old, that managed over 140 properties with 40,000 units. In 2019, the client entered the Georgia market managing three apartment complexes owned by a hedge fund in New York. The owner terminated without cause the client within six months, and several vendors – including the plaintiff, who was a remedial services provider – were not paid during the last few months and the transition period. The plaintiff sued the owner for the unpaid services, as well as an incorrect entity it believed to be the client. The owner cross-claimed against the client for fraudulent misrepresentations. Based on the misnomer statute, the court granted default judgment against the client. Read the full story...
Reprinted courtesy of Lewis Brisbois

Embracing Generative Risk Mitigation in Construction

February 12, 2024 — Georgia Stillwell - Construction Executive
Project delays have long plagued the construction industry, with risk often identified as the primary culprit. However, finding effective solutions to mitigate risk on complex projects has remained daunting. Traditional methods for simulating risk primarily focus on extending project timelines, overlooking the diverse range of opportunities available for risk mitigation. With the construction industry’s digital transformation, generative methodologies have emerged to handle complex decision-making in uncertain situations. This article aims to shed light on the limitations of existing risk modeling and introduce a novel approach known as generative risk mitigation to enhance decision-making under deep uncertainty. According to McKinsey, 98% of megaprojects experience cost overruns exceeding 30%. Project delays have become so pervasive that the industry has grown accustomed to them. For example, in 2022, the UK government issued ‘The Green Book,’ which requires contingency funds in projects, such as a 44% contingency budget for standard civil projects. This implies that for a $100 million project, you should allocate $144 million to manage expected risks. There is no denying significant academic literature on the root cause of these delays: it is ‘risk,’ and there is an entire industry based on it. Conversations with project directors and risk experts reveal the same issue, different project. And that issue is that we cannot easily forecast risk, qualify the impacts or fully understand the opportunities that exist to mitigate risks and make timely decisions. A method that will finally help us overcome this has emerged within the industry. Reprinted courtesy of Georgia Stillwell, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...

The Importance of the Recent Amendment to Rule 702 of the Federal Rules of Evidence

January 22, 2024 — Andrew G. Vicknair - The Dispute Resolver

Every litigator understands that expert witnesses play a key role in litigation, especially when dealing with construction issues. Expert testimony at trial can be a deciding factor in persuading a judge or jury in your client’s favor. It is so important that, as parties get closer to trial, litigators often spend considerable time filing motions to limit or disqualify certain aspects of expert testimony in an effort to gain an advantage at trial. Because experts are a key aspect of the trial process, it is important to understand the various rules governing use of expert testimony, primarily Rule 702 of the Federal Rules of Evidence.

On December 1, 2023, amendments to Rule 702 of the Federal Rules of Evidence went into effect which added the language in underline below and removed the language which is crossed out:

Rule 702. Testimony by Expert Witness

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(d) ~~the expert has reliably applied~~ expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

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Reprinted courtesy of Andrew G. Vicknair, D'Arcy Vicknair, LLC
Mr. Vicknair may be contacted at agv@darcyvicknair.com

The Three L’s of Real Estate Have New, Urgent Meaning

April 15, 2024 — Mark Gongloff - Bloomberg
What will it take to make Americans stop rushing headlong into climate peril? Cheaper housing in safer places, for one thing. But maybe big red flags on property listings will help, too. Redfin Corp., the digital real estate company, last week added air-quality data to its listings as part of its “climate risks” feature, which aims to warn homebuyers of the chances their dream home could succumb to a global-warming nightmare. Using data from the climate research firm First Street Foundation, Redfin estimates a property’s current and predicted risk levels for flooding, wildfires, extreme heat, high winds — and now days when the Environmental Protection Agency’s Air Quality Index tops 100, a category known as “unhealthy for sensitive groups.” Read the full story...
Reprinted courtesy of Mark Gongloff, Bloomberg

FAIRFIELD CONNECTICUT CONSTRUCTION EXPERT WITNESS DIRECTORY AND CAPABILITIES