FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Build Me A Building As Fast As You Can

March 15, 2021 — Jodi Stein & Jennifer Dickson - Sheppard Mullin Construction & Infrastructure Law Blog
Not your average game of patty-cake! Earlier this week, New York’s First Department, Appellate Division issued its decision related to 200 Amsterdam,[1] overturning the lower court’s decision which would have required 200 Amsterdam to remove several floors of its building in order to comply with zoning. The lower court determined that the NYC Zoning Resolution did not permit a developer to utilize a portion of a tax lot to merge with a neighboring zoning lot. Known as the “gerrymandered zoning lot,” the developer of 200 Amsterdam included portions of neighboring tax lots in its zoning lot in order to transfer air rights from those portions of tax lots to be utilized in 200 Amsterdam’s 55-story development. The inclusion of partial tax lots in a zoning lot is not expressly discussed in the NYC Zoning Resolution, but was permitted by a 1978 Department of Buildings memo. While challenges to 200 Amsterdam started in 2017, the developer moved forward with the construction of its development under lawfully issued building permits. Reprinted courtesy of Jodi Stein, Sheppard Mullin and Jennifer Dickson, Sheppard Mullin Ms. Stein may be contacted at jstein@sheppardmullin.com Ms. Dickson may be contacted at jdickson@sheppardmullin.com Read the court decision
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"Decay" Found Ambiguous in Collapse Case

August 31, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court granted, in part, the insured's motion for summary judgment seeking coverage for a collapse of a church's ceiling. Derbyshire Baptist Church v. Church Mut. Ins. Co., 2020 U.S. Distl LEXIS 113346 (E.D. Va. June 29, 2020). A large portion of the sanctuary ceiling of the insured's church collapsed. A claim was filed with the insurer. The insurer hired a forensic engineer who found the collapse was caused by the disconnection of wire support hangers from the wood roof beams. Further, "the redistribution of load on the hangers resulted in a progressive failure of the hangers and their supported components." Based on these findings, the insurer denied coverage. The policy excluded coverage for collapse, but in the Additional Coverage portion of the policy, collapse caused by "decay that is hidden from view" was covered. The court pondered the meaning of "decay," which was not defined in the policy. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Insurer’s Motion for Summary Judgment Based on Earth Movement Exclusion Denied

October 28, 2011 — Tred R. Eyerly - Insurance Law Hawaii

After carefully dissecting the earth movement exclusion, the court denied the insurer’s motion for summary judgment. High Street Lofts Condominium Assoc., Inc. v. Am. Family Mut. Ins. Co., 2011 U.S. Dist. LEXIS 109043 (D. Colo. Sept. 26, 2011).

The City of Boulder performed road repair work near High Street’s property, some of which involved the use of a vibrating compactor to compact and set the roadbed. High Street noticed damage to its building, such as cracks in walls, sloping of floors and separations of porches from the building itself. High Street contacted the City of Boulder, who forwarded the complaint to its contractor, Concrete Express, Inc.

High Street also filed a claim with its business insurer, American Family, who denied the claim. American Family relied on an opinion letter by High Street’s engineer. The letter indicated that the damage was the result of "soil consolidation/settlement," in response to the construction activities. Based on this letter American Family concluded the claim was excluded under the policy’s earth movement exclusion.

High Street sued American Family, who moved for summary judgment.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Contractors Pay Heed: The Federal Circuit Clarifies Two Important Issues For Bid Protestors

September 13, 2021 — Andrew Balland - ConsensusDocs
The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently decided two cases that are relevant to many disappointed offerors considering a bid protest. One decision rendered in March 2021 confirmed the authority of the United States Court of Federal Claims (COFC) to hear a protest based on an agency’s breach of an implied-in-fact contract. A second decision issued in February 2021 reversed a COFC decision from last year regarding the timeliness requirements to obtain a CICA stay and their interplay with Department of Defense (DoD) enhanced debriefing regulations. Federal Circuit Confirms The Court Of Federal Claims’ Jurisdiction Over Procurement-Related Implied Contract Claims When a contractor’s bid protest is denied by the Government Accountability Office (GAO), the unsuccessful protestor may challenge the GAO’s decision as arbitrary and capricious in an action before the COFC. While 28 U.S.C. § 1491(b)(1) authorizes the COFC to hear such procurement-related challenges, § 1491(a) also permits the court to adjudicate claims against the United States based on any express or implied contracts. Read the court decision
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Reprinted courtesy of Andrew Balland, Watt, Tieder, Hoffar & Fitzgerald, LLP

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California Case Is a Reminder That Not All Insurance Policies Are Alike Regarding COVID-19 Losses

April 05, 2021 — Neal I. Sklar & Joshua A. Morehouse - Peckar & Abramson, P.C.
A recent case from the Central District of California reminds us that not all insurance policies are alike. Depending on the particular policy, losses from the COVID-19 outbreak could qualify as property damage and therefore could be recoverable under an all-risk insurance policy. COVID-19 has in many cases imposed significant costs on contractors, and in a host of ways. Contractors’ attempts to recover these costs from owners or insurers have at times been frustrated by contractual or policy language written after a lengthy time, during which the risk of a pandemic on the scale of COVID-19 was not as much of a concern as it is now. This has led contractors to explore new, often creative legal theories in their attempts to recover costs flowing from COVID-19. A recent Complaint filed in the Central District of California focuses on all-risk property insurance policies and the potential for contractors who have purchased such policies to classify contamination from COVID-19 as an insurable property loss. In AECOM v. Zurich Insurance Company, Case No. 2:21-cv-00237-JAK-MRW (C.D. Cal), a contractor purchased “all-risk” property insurance from Zurich. This policy covered “economic losses from all risks not expressly excluded.” According to the Complaint, the presence of COVID-19 on its properties “physically alter[ed] air, airspace, and surfaces preventing… (the contractor) from using its properties for their intended purpose and function.” Reprinted courtesy of Neal I. Sklar, Peckar & Abramson, P.C. and Joshua A. Morehouse, Peckar & Abramson, P.C. Mr. Sklar may be contacted at nsklar@pecklaw.com Mr. Morehouse may be contacted at jmorehouse@pecklaw.com Read the court decision
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New York Appellate Court Holds Insurer’s Failure to Defend Does Not Constitute a “Reasonable Excuse” Required to Overturn Judgment

January 21, 2019 — Timothy Carroll & Anthony Miscioscia - White and Williams
A recent opinion by the New York Supreme Court, Appellate Division (Second Department) highlights the potential risks for an insurer leaving an insured unrepresented while the insurer pursues other parties or insurers who may be primarily responsible for defending the insured. In refusing to overturn a default judgment entered against an insured while its insurer knew that a complaint had been filed but refused to defend, the New York court’s decision raises questions about how claims adjusters are to effectively manage new claims to prevent a default judgment being entered against the insured, while at the same time ensuring that the appropriate party or insurance company handles the insured’s defense. In Kaung Hea Lee v. 354 Management Inc., 2018 N.Y. App. Div. LEXIS 7749 (N.Y. App. Div. Nov. 14, 2018) (354 Management) the underlying plaintiffs obtained a default judgment against the defendant insured due to its failure to answer the plaintiffs’ complaint. The plaintiffs then moved to determine the extent of damages to which they were entitled by virtue of the default judgment. The defendant opposed that motion, relying on an affidavit from a senior liability claims adjuster employed by the defendant’s insurer. “In the affidavit, the claim adjuster stated that she did not assign an attorney to answer the complaint because the codefendant . . . was contractually obligated to defend and indemnify the defendant [insured], and she had been attempting to have either [the codefendant] or its insurer provide an attorney” for the defendant. However, it was determined that the claims adjuster knew about the plaintiffs’ complaint two weeks after the plaintiffs served it on the defendant and months before the plaintiffs moved for default judgment. Despite this knowledge, the defendant’s insurer did not provide a defense or, apparently, obtain an extension of time to respond to the complaint, which led to the default judgment. Reprinted courtesy of Timothy Carroll, White and Williams and Anthony Miscioscia, White and Williams Mr. Carroll may be contacted at carrollt@whiteandwilliams.com Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Read the court decision
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Condo Collapse Spurs Hometown House Member to Demand U.S. Rules

July 19, 2021 — Parker Purifoy - Bloomberg
A Florida congresswoman called for stricter federal building-safety standards on Thursday to prevent a repeat of the condominium collapse that killed at least 60 people and left dozens more missing in her state. Representative Debbie Wasserman Schultz, a Democrat whose congressional district includes the condo development in Surfside, said more buildings could collapse or break down as they age and the federal government needed to have a “minimum floor” of safety requirements. “We do have standards that are tangentially related at the federal level and so I do think it’s important to look into what standards should be adopted at the national level, at a minimum, because this is a tragedy of epic proportions,” she said on Bloomberg Television’s “Balance of Power” with David Westin. “We can’t allow this to ever happen again.” Read the court decision
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Reprinted courtesy of Parker Purifoy, Bloomberg

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Can a Non-Union Company Be Compelled to Arbitrate?

August 02, 2017 — Wally Zimolong - Supplemental Conditions
Some of the most viewed topics on this blog are those concerning double breasted company. That is a two separate firms, commonly owned, one that is a signatory to a union and the other that is merit shop. An issue frequently encountered with double breasted construction companies is an union arbitrator’s jurisdiction over the non-signatory firm. The issue usually goes something like this. A signatory employer’s collective bargaining agreement contains language prohibiting double breasting (which could be invalid). The collective bargaining agreement also contains an arbitration provision requiring all disputes concerning a breach of the agreement (a grievance) be decided by an arbitrator in private arbitration. The union files a demand for arbitration claiming that the union signatory has breached the collective bargaining agreement’s anti-dual shop provision. The union names the non-union firm as a party to the arbitration based on its status as an alleged “single employer.” Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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