Fairfield Connecticut Building Expert Directory

Fifth Circuit Certifies Eight-Corners Duty to Defend Issue to Texas Supreme Court

June 21, 2021 — Jeremy S. Macklin - Traub Lieberman Insurance Law Blog
In the recent case of Bitco Gen. Ins. Corp. v. Monroe Guar. Ins. Co., No. 19-51012, 2021 WL 955155 (5th Cir. Mar. 12, 2021), certified question accepted (Mar. 19, 2021), the Fifth Circuit Court of Appeals certified to the Texas Supreme Court the question of whether a court can consider extrinsic evidence when determining an insurer’s duty to defend. The underlying lawsuit stems from a construction contract in which J&B Farms of Texas hired 5D, a construction company, to drill a commercial irrigation well through the Edwards Aquifer. Two years after beginning the project, J&B Farms sued 5D and its President for breach of contract and negligence. J&B Farms alleged that while drilling, 5D “stuck the drilling bit in the bore hole, rendering the well practically useless for its intended/contracted for purpose.” 5D then “failed and refused to plug the well, retrieve the drill bit, and drill a new well.” J&B Farms asserted that 5D drilled the well “with unacceptable deviation” and then “abandon[ed] the well.” 5D notified its insurers, BITCO and Monroe, of the lawsuit and demanded a defense from both. BITCO agreed to provide a defense to 5D, but Monroe refused arguing that the alleged property damage fell outside the relevant policy period, and therefore, it had no duty to defend 5D. BITCO then filed a declaratory judgment action seeking a finding that Monroe owed 5D a duty to defend. Read the court decision
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Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman
Mr. Macklin may be contacted at jmacklin@tlsslaw.com

Tokyo Building Flaws May Open Pandora's Box for Asahi Kasei

October 28, 2015 — Kathleen Chu, Joji Mochida & Katsuyo Kuwako – Bloomberg
Japanese real estate investment trusts are joining apartment owners and regulators in pushing Asahi Kasei Corp. for answers on an apartment building sagging sideways on the outskirts of Tokyo, as concerns are mounting that it may not be an isolated case. REITs including Advance Residence Investment, Nippon Accommodation Fund Inc., Daiwa House Residential Investment Corp. and Japan Rental Housing Investment Inc. have all asked Asahi Kasei for details on what other buildings might be flawed, according to the trusts. Asahi Kasei disclosed on Thursday the names of prefectures where the company has undertaken work in the past 10 years on more than 3,000 buildings, after the land ministry requested the data. The sites include 342 schools, 257 medical and health-care facilities, 696 housing complexes and 217 office buildings, the firm said. Asahi Kasei, the subcontractor of the project, said a unit didn’t properly install foundation piles at an apartment building in Yokohama, and the division falsified data on the work. The scandal has sent Asahi Kasei’s shares down more than 21 percent since Oct. 13, when news of the flawed building first emerged. Shares of Sumitomo Mitsui Construction Co., the contractor, plunged 25 percent and those of Mitsui Fudosan Co., which sold units at the Yokohama project in 2006, have tumbled 5 percent since then. All three companies said that the impact of the incident on their earnings is not yet clear. Reprinted courtesy of Bloomberg reporters Kathleen Chu, Joji Mochida and Katsuyo Kuwako Read the court decision
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Demonstrating A Fraudulent Inducement Claim Or Defense

May 18, 2020 — David Adelstein - Florida Construction Legal Updates
In a recent case, Florida’s Fourth District Court of Appeal reversed a trial court’s denial of a motion for a temporary injunction sought by an employer due to an independent contractor’s violation of a non-compete and non-solicitation provision in an employment / independent contractor agreement (“employment agreement”). You can find more on this case and the enforcement of the non-compete and non-solicitation clause here. A worthy discussion in this case centers on the independent contractor’s fraudulent inducement defense. Specifically, the independent contractor, as a defense to the injunction, claimed that he was fraudulently induced into entering into the employment agreement because the employer promised he would make a certain amount of money and he would work predominantly in one geographic location. The employment agreement contained NO such representations. Instead, the employment agreement contained a fee and services schedule and the independent contractor would be compensated based on that schedule. It stated nothing as to the independent contractor only having to work, or predominantly working, in one geographic location, or that the independent contractor would be guaranteed “X” amount of money working in that location. Why is this important? Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Naughty or Nice. Contractor Receives Two Lumps of Coal in Administrative Dispute

January 21, 2019 — Garret Murai - California Construction Law Blog
So, how were your holidays? Hopefully you were good and didn’t receive a lump of coal from Santa. For one contractor, 2018, wasn’t such a good year. And as its name, Black Diamond, suggests, it did indeed receive a black diamond from the courts. Actually, two of them. Contractors’ State License Board v. Superior Court (Black Diamond No. 1) In Contractors’ State License Board v. Superior Court, Court of Appeals for the First District, Case No. 1154476 (October 11, 2018), the Contractors State License Board (“CSLB”) brought disciplinary proceedings against Black Diamond Electric, Inc. (“Black Diamond”), a C-10 Electrical Contractor, for violating: (1) Labor Code section 108.2, which requires individuals performing work as electricians to be certified; and (2) Labor Code section 108.4, which permits uncertified persons seeking on-the-job experience to perform electrical work so long as they are under the direct supervision of a certified electrician. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen
Mr. Murai may be contacted at gmurai@wendel.com

Ninth Circuit Holds Efficient Proximate Cause Doctrine Applies Beyond All-Risk Policies

April 20, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Ninth Circuit held that the efficient proximate cause doctrine is not limited to all-risk policies. Olin Corp. v. Continental Cas. Co., 2016 U.S. App. LEXIS 4905 (9th Cir. March 17, 2016). Olin operated a plant that produced industrial chemicals. Continental issued a policy covering the plant's boilers and machinery. In late 2008, the machinery was damaged. Continental denied coverage for damage to Olin's diaphragm cells, which were tanks containing metal cathodes covered by asbestos diaphragms. Continental argued that the damage to the cells was not covered because it was not caused by an "accident." The jury returned a verdict in favor of Olin. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Workers at Two NFL Stadiums Test Positive for COVID-19, But Construction Continues

April 13, 2020 — Tim Newcomb - Engineering News-Record
Construction at SoFi Stadium in Inglewood, Calif., and Allegiant Stadium outside Las Vegas—two new NFL stadiums scheduled to open in 2020—continue forward despite a worker at each location testing positive for COVID-19. Tim Newcomb, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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Negligence Per Se Claim Based Upon Failure to Pay Benefits Fails

December 21, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Ninth Circuit affirmed the district court's issuance of the insurer's motion for summary judgment, thereby rejecting the insureds' negligence per se claim for failure to pay benefits. Braun-Salinas v. Am Family Ins. Group, 2016 U.S. App. LEXIS 19555 (9th Cir. Oct. 28, 2016). The insureds argued that Oregon recognized a negligence per se claim based on an insurer's failure to pay benefits in violation of the statutory standard under state law. Oregon appellate courts, however, only allowed a negligence per se claim only where a negligence claim otherwise existed. The Oregon courts had previously rejected a statutory theory, holding that a violation of the statute did not give rise to a tort action. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Select the Best Contract Model to Mitigate Risk and Achieve Energy Project Success

October 17, 2022 — Gregory S. Seador - Construction Executive
Power and energy projects are inherently complex and risky. Therefore, management and proper allocation of risk among project participants are essential to success. Careful drafting of the engineering, procurement and construction (EPC) contract is a critical first step in managing risk. The standard contract format used for power and energy construction projects is the EPC contract. In its traditional form, the EPC contract makes the EPC contractor responsible for the entire project, including engineering (design of the power plant), procurement (purchase, installation and performance of all equipment) and construction (construction of the plant). EPC contracts can, however, employ different contract models and pricing structures, each of which carries differing levels of risk for project participants. Selecting the appropriate contract model and pricing structure to meet the unique needs of the project is important. Reprinted courtesy of Gregory S. Seador, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Seader may be contacted at seador@slslaw.com

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