The construction industry uses a language all its own, and it is one Al DiVincentis speaks fluently. Before becoming a lawyer, Al spent 15 years working his way up the ranks in construction, ultimately becoming vice president of a major Connecticut construction company. Now, he uses that hands-on knowledge in his legal work on behalf of contractors and developers, getting quickly up to speed on a project and thoroughly understanding all its dimensions.
Al represents contractors, subcontractors, developers, design professionals, manufacturers and insurers in all facets of the construction industry from inception to completion. Al has drafted and negotiated design and construction agreements for multiple public and private construction projects with values in excess of $65M.
As a litigator, Al has extensive experience in construction and complex commercial disputes and transactions, and complex insurance coverage disputes. He has represented construction-industry clients in disputes involving as much as $85 million in claims. His clients have included one of the largest contractors in the world concerning construction related insurance coverage issues arising out of the World Trade Center clean-up project, and a global construction and materials conglomerate in multi-state litigation.
While skilled as a trial lawyer, Al devotes much of his practice to counseling construction and design professional clients on how to complete their projects without litigation. He encourages clients to come to him well before they launch, so that he can work closely with them as a key member of the project team. From a project's earliest stages, he counsels his clients on how best to manage their risks. If disputes arise as the project moves forward, he brings his industry knowledge and legal skill to bear in seeking the best way to resolve it.
For his commitment, dedication and service to the construction industry, Al was awarded the Dr. Stuart R. Bennett Alumni Award from Central Connecticut State University in 2008 and the Associated General Contractors of Connecticut's Service Provider of the Year in 2010.
Al is an appointed member of the Associated General Contractors of America National Committee on Contract Documents and of the Associated Builders and Contractors Legislative and Government Relations Committee. He is a member of the ALFA International Construction Section Steering Committee. He is a frequent lecturer on construction-law topics and is an appointed arbitrator with the American Dispute Resolution Center in New Britain.
H & S Successfully Argues Arbitration Agreement Exempts A Party From Apportionment
Insurance Law Update, 10/02/2012
In Girolametti et al. v. City of Danbury et al., 2011 WL 3849137 (Docket Nos. X06-CV-10-6011711 S, X06-CV-11-6011734 S) (Superior Court Judicial District of Waterbury, August 2, 2012), the Connecticut Superior Court addressed an issue of first impression, namely whether an agreement between parties to submit to unrestricted arbitration means that the parties have reached a settlement, rendering each party a settled party under Conn. Gen. Stat. 52-102b(c).1 The Court found in the affirmative because agreements to arbitrate provide finality and arbitration is a form of alternative dispute resolution.
By way of background, the plaintiffs previously entered into a construction contract with the apportionment defendant, Rizzo Corporation. The construction contract contained a provision for unrestricted arbitration between the parties to settle any claims or disputes arising out of the construction project. When a dispute arose, arbitration proceedings before the American Arbitration Association resulted in a ruling in favor of the apportionment defendant. Thereafter, the plaintiffs commenced the instant lawsuits. The defendants to these actions then sought to apportion negligence to the apportionment defendant.
In response, the apportionment defendant argued that it is a settled or released party within the meaning of Conn. Gen. Stat. 102b(c). It further argued that the agreement to arbitrate is a settlement of claims, and therefore the binding arbitration agreement between the plaintiffs and the apportionment defendant represents a settlement to all claims between them. Thus, the apportionment defendant contended that it may not be made an apportionment defendant per the guidelines of Conn. Gen.Stat. 102b(c). The defendants/apportionment plaintiffs, in response, argued that an arbitration agreement is not a settlement.
In Girolametti, the Court relied heavily on Viera v. Cohen, 283 Conn. 412 (2007) in which the application of Conn. Gen. Stat. 52-572h and 52-102b to settled and released parties was analyzed. The Court in Girolametti found instructive the identified examples of similar agreements, including offers to compromise, covenants not to sue, and stipulated judgments. Importantly, these similar agreements brought finality to a controversy among parties. Accordingly, the Court in Girolemetti ultimately concluded that an arbitration agreement is a 'similar agreement' as defined in General Statutes 52-572h(n). An arbitration is agreement is a settlement between the parties to resolve their disputes. It provides the parties with finality and is considered an alternative form of dispute resolution.
The Girolemetti decision serves to further highlight the importance of arbitration agreements within contracts. Properly drafted, such agreements to arbitrate, including appraisal, can themselves provide a final resolution to disputes preventing the contracting parties from later being subject to claims of apportionment.
1Conn. Gen. Stat. 52-102b(c) provides:
No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff's injuries or damage and the plaintiff has previously settled or released the plaintiff's claims against such person, then a defendant may cause such person's liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiff's claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant's claim that the negligence of such person was a proximate cause of the plaintiff's injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.
Id. (2012).ConsensusDOCS Offer An Alternative to Perceived Standard Agreements
The construction industry is too often fragmented, adversarial, litigious, and inefficient. The contract documents which govern the performance of stakeholders in the design and construction process are part of the problem. Thirty five leading construction associations, representing a diverse coalition of owners, contractors, sureties, and design professionals, joined together to develop a set of consensus standard contracts intended to have reasonable risk allocation for all parties. The result is ConsensusDOCS, which includes more than 90 contracts documents that address all project delivery methods, including the first standard Integrated Project Delivery (IPD) contract. Publication of ConsensusDOCS marks the first time that the entire construction industry was invited to join together to draft standard contracts.
Contracts ultimately written by one organization are often perceived as being biased towards that membership's interests. The American Institute of Architects (AIA) has historically played the role of decider of industry standard contracts. However, many involved in the drafting of the ConsensusDOCS perceived the AIA contract documents as self-servingly biased towards architects as well as driven by revenue concerns. As a result, the memberships of the Associated General Contractors of America (AGC) and the American Subcontractor's Association (ASA) both unanimously elected not to endorse the 2007 edition of the AIA documents based upon the substantive concerns that were left unaddressed.
Judging by the general state of affairs in construction contracts, the old ways may not serve the best interests of the industry. Fair risk allocation generally follows the principal that the party in the best position to control and mitigate risk should be allocated that risk. However, many view contracts as an opportunity to push risk away rather than manage it. Consequently, parties downstream in the contractual chain, who are often in the weakest position, bear an inordinate amount of the risk. The lack of consensus has led a fragmented industry to fragment in its use of contracts. Some markets report use of 54 different standard contracts. Moreover, even if a standard contract is used, it is often so modified that it loses the predictability that it was intended to provide.
ConsensusDOCS are intended to solve the Gordian Knot of perceived bias by giving all the stakeholders in the construction process an equal seat at the table. The DOCS in ConsensusDOCS stands for Designers, Owners, Contractors, Subcontractors, and Sureties. Upon reaching consensus, AGC and COAA merged their previous contract documents programs into ConsensusDOCS, thereby proactively providing cohesion and predictability in a fragmented industry. Some argue that the ConsensusDOCS are solely a re-branding effort of the old AGC contract documents. That conclusion is the result of a misunderstanding of the process which resulted in the publication of the ConsensusDOCS. In reality, the participating organizations built consensus from the foundation of both the previous AGC and the COAA contracts. In addition to creating entirely new and innovative contract documents, every document, article, and section was put on the drafting table and subjected to an intensive three-year process that explored fundamental, as well as intricate, details to craft contractual best practices for today's industry and beyond.
ConsensusDOCS contracts stress collaboration and communication between the primary parties to control their destiny and resolve potential disputes before they become intractable. The owner is empowered to decide who should serve and be paid to be an impartial decision-maker or arbitrator in the mix from the inception of the contractual relationship. The architect may, or may not, be assigned this role.
Written by experienced construction professionals and attorneys, the contracts provide solutions drawn from multiple segments of the construction process. The ConsensusDOCS also address cutting-edge issues, such as electronic communications and Building Information Modeling (BIM). In addition, ConsensusDOCS includes an important new agreement-the Tri-Party Collaborative Agreement (ConsensusDOCS 300)-which was the first standard Integrated Project Delivery (IPD) document published. The Tri-Party IPD Agreement brings together three parties-Owner, Design Professional, and Constructor-to execute the same contract and create a core team to act on behalf of the project. Agreements of this type have been used in Australia for some time, where they are known as alliancing or relational contracting. The document allows the project's core team, which may include key specialty contractors and consultants, to make consensus decisions based upon the best interests of the project. The Tri-Party IPD Agreement helps facilitate the use of BIM and incorporates LEAN construction techniques.
ConsensusDOCS contracts offer an alternative approach to single organization standard agreements based upon the fundamental belief that risk should be allocated fairly. If this is how you believe your contracts should be, you've got nothing to lose by giving ConsensusDOCS a look.Understanding and Managing the Risks of Design Delegation
A common misconception in the construction industry is that contractors have no responsibility for professional design services on a project if they are furnished drawings and specifications by the owner. On the contrary, contractors bear significant design related risks even under the traditional design-bid-build method of project delivery. Although contractors commonly delegate design responsibilities to subcontractors or consultants, the contractor may be vicariously liable for such design. Moreover, in an effort to reduce project costs, contractors routinely engage in value engineering activities where the contractor recommends changes to the established design. In such cases, absent specific contractual language to the contrary, the contractor is generally responsible for the adequacy of such design alternatives and impliedly warrants their feasibility.
Aside from value engineering, design may only be delegated from the design professional to the contractor by agreement. The most commonly used design delegation clause appears in the AIA A201-1997, 3.12.10.
Categories of Design Delegation
The AIA design delegation clause can be broken down into two categories.
Category I concerns design services specifically required by the Contract Documents that relate to systems, materials and equipment. In the case of Category I, the contractor must design that particular portion of the work as required by the Contract Documents, provided the designer specifies the performance and design criteria that the contractor must meet. An example of Category I is the design of a cold rolled steel framing system where the contractor is charged with meeting certain specified loading criteria.
Category II concerns design services that relate to the contractor's means, methods, techniques and procedures. This category does not involve design services for the finished work, but instead involves design services necessary to facilitate the construction process. The most common example of this category is temporary shoring systems.
In all instances, the design delegated to the contractor must be performed by properly licensed professionals.
Since design responsibility can only be delegated through specific direction provided in the Contract Documents it is important to understand the varying types of specifications and the risks associated with each.
Types of Specifications
There are two general types of specifications prevalent in the construction industry-design specifications and performance specifications.
Under a design specification, the owner, through its design professional, provides the specific design to be followed and the materials to be used. In such case, the contractor is obligated to follow the stated design without deviation. If the contractor does so, the contractor generally bears no responsibility if the design proves inadequate to achieve the intended result. The contractor's risk, even if framed in absolute terms, is a guarantee that is limited to the quality of materials and workmanship employed in following the owner's design.
A performance specification requires a contractor to produce a specific result without specifying the particular method or means of achieving that result. Under a performance specification, only an objective or standard of performance is set forth, and the contractor is generally free to choose the materials, methods and design necessary to meet the objective or standard of performance, provided the contractor's design meets the general requirements of the design intent.
Concomitant with control over the choice of design, materials and methods is the corresponding responsibility to ensure that the end product performs as desired. In other words, the contractual risk of nonperformance is upon the contractor. Accordingly, in the event of nonperformance, the contractor is exposed to any damages that would flow from the contract and any other damages or theories of recovery that may be allowed by law. There are, however, two general exceptions. Contractors will generally not be excused from performing something that is possible because of unforeseen difficulties, however, the contractor may still be excused from performance if the contractor can establish the elements of objective impossibility or practical impossibility. If these legal standards are met, the risk generally returns to the owner.
Communication of the Delegated Design
The contractor's delegated design is generally communicated to the architect and owner by virtue of the submittal process. In such case, the architect generally only reviews, approves, or takes other appropriate action on submittals for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. In some jurisdictions, the design professional's review does not necessarily mean that the design professional will evaluate the contractor's design or coordinate such design work with other work on the project. Furthermore, as a general rule, approval of the contractor's submittals will not relieve the contractor of any error that may exist in the contractor's work (as opposed to an error that may exist in performance criteria) so long as the submittal review clause stating so is specific.
Managing the Risk
Most contractors mistakenly assume that by hiring a licensed and insured design professional or a subcontractor to perform the delegated design work they have insulated themselves from the risk associated with design. The contractor generally cannot transfer the entire risk of design. This holds true even where the contract with the design professional or subcontractor contains the appropriate risk transfer provisions such as, hold harmless agreements and additional insured status requirements.
Contractors should not rely exclusively on hold harmless and other contract provisions to shield themselves from liability for the following reasons:
The indemnity agreement might be unenforceable. In most states, one cannot be indemnified for its own negligence.
The design firm may not be in business when the loss occurs. Since most professional liability coverage is written on a claims made basis, it is possible that coverage may not exist at the time of the claim.
E&O insurance covers professional negligence only and typically does not cover contractual liability such as that assumed in the hold harmless provision unless liability would attach even in the absence of the hold harmless provision.
Even if the E&O policy does respond, the design professional may only carry relatively low limits and have limited tangible assets to satisfy the indemnity obligations if the insurance proves to be inadequate.
Consequently, the contractor's contractual obligation to protect the owner is not relieved by the inability to collect for design damages from the design sub-consultant.
What about the Contractor's CGL Policy?
Although the specific language of the CGL policy will control, design exposures and losses (the cost to remedy negligent design) are generally not covered by most CGL policies because such exposures involve professional risks and services. Instead, CGL policies typically limit coverage to property damage and bodily injury caused by an occurrence as those terms are defined by the policy.
What does this all mean?
Contractors should be aware that they assume some degree of design risk on virtually every project. The key, therefore, is to effectively manage that risk. Contractors can manage the risk by properly drafted risk transfer, hold harmless and insurance provisions and by ensuring that the persons to whom the design is delegated carry an appropriate amount of professional liability insurance. Finally, contractors should have their own professional liability insurance program to cover claims of the contractor's own negligence and for vicarious liability caused by negligent design.ALFA State Compendium, William S. Wilson, II and Alfred A. DiVincentis, May 2007
I. MECHANICS' LIEN BASICS
Conn. Gen. Stat. 49-33 et seq. provides for and governs mechanics' liens on private projects. A mechanics' lien is an encumbrance on the owner's interest in the property and payment may be obtained only when a lien is foreclosed upon. The statutory procedural requirements must be strictly followed to perfect a lien right. The general considerations for mechanics' lien include...
News & Events
Al DiVincentis to Teach BIM Educational Program
Alfred DiVincentis, a partner in the Firm's Construction Practice Group, will co-present a program entitled BIM Contract Negotiation and Risk Allocation on April 27, 2012. The program is presented by the AGC of Connecticut and the BIM Education Program. It is the third installment of the AGC of Connecticut's BIM Education Program.
BIM Contract Negotiation and Risk Allocation is a full-day (8-hour) course that examines BIM and contract terminology to determine best practices for integrating BIM into project contracts. Hot-button issues such as standard of care, intellectual property rights, and insurance and surety bonding coverage are discussed to help participants successfully prepare for BIM implementation.
For registration information .Firm Attorneys Judge Frederick Douglass Moot Court Competition
Halloran & Sage attorneys, in conjunction with the National Black Law Students Association (NBLSA)and the Assistant Regional Director of the Frederick Douglass Moot Court Northeast Region Competition, are pleased to participate as volunteer judges in the 2011 Frederick Douglass Moot Court Northeast Region Competition. The theme for this year's 36th Annual competition is, 1975-2011: Building a Legacy of Advocates to Fight For the Causes of Today.
The goal of the competition is to expose participants to realistic appellate advocacy experiences through oral argument and brief writing. Timothy McGuire is participating as a briefing judge and Attorneys Daniel Scapellati, John Farley, Brett Szczesny, Tracy Montalbano, Laura Pascale Zaino and Al DiVincentis are serving as oral judges. Over 100 teams from across the nation compete in six Regional Competitions. The top three teams from each region go onto compete at the national level during NBLSA's Annual Convention.Al DiVincentis Winner of the Associated General Contractors of Connecticut 2010 Supplier/Service Provider Award
Al DiVincentis was recently selected by the Associated General Contractors of Connecticut (AGC) as the recipient of their 2010 Supplier/Service Provider award. Criteria for this award includes: a high level of leadership; a willingness to learn; a desire to excel; an understanding of construction principles and theory; a high skill level, developed through education and job experience; the experience, discipline and focus to bring thoughtfulness and skill together successfully in various types of construction projects; and an adherence to fair and responsible business practices. Al was the only attorney nominated in the Supplier/Service Provider category.
AGC of Connecticut is a statewide construction trade association. Its membership is comprised of general contractors, construction managers, subcontractors and specialty contractors, and firms that supply and serve the Connecticut commercial construction industry. AGC members build the public and private infrastructure of our state, including colleges, public schools, city halls, fire stations, libraries, civic centers, police stations, roads, bridges and airports and many other commercial construction projects.
The AGC of Connecticut Industry Recognition Awards were established in 2005 to recognize leading individuals from the commercial construction industry who have demonstrated skills, integrity, and responsibility in their careers.Al DiVincentis Finalist for Associated General Contractors Award
The Associated General Contractors of Connecticut has selected Al DiVincentis as a finalist for their 2010 Supplier/Service Provider award. Recipients for this award are selected based on their high level of leadership; a willingness to learn; a desire to excel; an understanding of construction principles and theory; a high skill level, developed through education and job experience; the experience, discipline and focus to bring thoughtfulness and skill together successfully in various types of construction projects; and an adherence to fair and responsible business practices. Alfred is the only attorney nominated in the Supplier/Service Provider category.
The AGC is the leading national construction trade association representing all facets of commercial construction. Alfred will be recognized at the association's annual Industry Recognition Awards & Dinner on October 12, 2010.American Arbitration Association Appoints Al DiVincentis to its Northeast Region Advisory Council
Al DiVincentis, a partner in the Construction Practice Group, was appointed to the Advisory Council for the American Arbitration Association's Northeast Region.
The purpose of the regional advisory committee is to provide feedback and direction to the American Arbitration Association on its construction related dispute avoidance and resolution services. The committee may be asked to provide suggestions for changes or enhancements to our rules, guides, administrative policies, roster of neutrals, types of services as well as systems for service delivery, products, promotional activities, education and training programs all with the goal of supporting the overall mission of the AAA and expanding the use of the AAA dispute avoidance and resolution services in the construction industry.H & S Partner Receives Distinguished Alumni Award From Central Connecticut State University
Halloran & Sage partner, Al DiVincentis recently received the Dr. Stuart R. Bennett Distinguished Alumni Award from Central Connecticut State University. The award is presented by the School of Technology to an alumnus for their outstanding commitment and contribution to the construction industry. Last year, Dr. Bennett, the award's namesake was the first recipient. This year, over 700 alumni were considered for the award, six finalists were chosen and Mr. DiVincentis was the award recipient.
Al is a partner in the Construction Practice Group at Halloran & Sage and graduated from Central Connecticut State University.William Wilson and Al DiVincentis Teach Construction Institute Ethics Course
William Wilson, II and Al DiVincentis, members of the Halloran & Sage Construction Law Practice Group will team up to teach Ethics: A new Minefield for the Public Works Contractor for the Construction Institute on Tuesday, May 8, 2007. After extensive activity aimed at reforming the state contracting process in both the legislative and executive branches, Public Acts, 05-287 and 05-183 were signed into law in 2005. Combined, these two Public Acts repealed and replaced nearly all of the relevant Code of Ethics statutes (C.G.S. 1 -79 through 1 - 89) and created new far-reaching laws ( 1 - 101mm through 1 - 101rr). The course will focus on how these ethics laws are affecting nearly all public work performed by both resident and non-resident contractors.
The Construction Institute, a division of The University of Hartford, is a non-profit, non-partisan association of diverse professionals working to improve the construction industry by sharing experiences and knowledge, advancing relationships, and developing business leaders.H & S Announces New Partners and Counsel
The law firm of Halloran & Sage is pleased to announce that Alan Curto, Al DiVincentis and Brett Szczesny have been admitted as partners and Laura Pascale Zaino has been named counsel.
Alan is a member of the Administrative and Regulatory Group and graduated from the University of Connecticut School of Law in 1998. Al is a litigation attorney in the Construction Group and graduated from the University of Connecticut School of Law in 2000. Brett graduated from the Catholic University of America Columbus School of Law in 1997. Laura is a member of the Litigation Group. She graduated from the University of Connecticut School of Law in 1996.H & S Supports Lawyers Collaboration for Diversity Programs
Halloran & Sage attorneys recently participated in a wide of range of diversity programs in conjunction with the Lawyers Collaborative For Diversity, Inc (LCD).
The Lawyers Collaborative for Diversity was formed by concerned lawyers to answer the call for diversity. Their current challenge is to increase the recruitment, retention and promotion or lawyers of color. Their mission is to unite the resources, energy and commitment of the State's leading law firms, corporations, public sector entities, law schools and state bar associations in the joint mission of making Connecticut a more attractive place for attorneys of color and women to practice law and find satisfying professional opportunities.
Recently, at the LCD annual meeting, Attorneys, Carl Ficks, Jr., Brian Rich, William Wilson, II and Al DiVincentis participated in an open forum facilitating the advancement of the diversity dialogue. The discussion focused on the importance of mentoring during law school so that law students of color have every opportunity to succeed academically and develop strong networking skills to help them become successful members of the bar.
A variety of topics were covered, including job searching, life as lawyers and public sector opportunities for law students of color.
Recently, Attorneys Alfred DiVincentis, Jeffrey Gostyla and Human Resources participated in a discussion entitled Creating Best Practices for Evaluations of Associates of Color.
In addition, Halloran & Sage is proud to sponsor the LCD Edwin Archer Randolph Diversity Award Celebration. This award ceremony honors and celebrates significant contributions and accomplishments in the advancement of attorneys of color within the legal community.
Halloran & Sage is committed to supporting diversity initiatives inside the Firm and out of the office. Our Firm is richer because of our involvement in initiatives such as these.Al DiVincentis To Co-chair ABA Section of Litigation ADR & Construction CLE Conference
Halloran & Sage is pleased to announce that Al DiVincentis, a member of the Firm's Construction Group has been selected to Co-chair the ABA's Section of Litigation Alternative Dispute Resolution & Construction CLE Conference. The Conference will take place November 9 - 11, 2005 in Las Vegas, Nevada and will feature some of the nation's foremost construction law and ADR practitioners. Sessions offered at the conference will address guidance in drafting better ADR clauses, resolving insurance issues, presenting claims and damages, and practical advice on making ADR work.
Al is a litigation attorney with extensive experience in construction and complex commercial disputes and transactions, as well as complex insurance coverage disputes. He has a unique perspective on construction law resulting from 15 years of work as a superintendent, project manager, chief estimator and vice president at major construction companies in Connecticut.