FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Insurer Must Cover Construction Defects Claims under Actual Injury Rule

March 01, 2012 — Tred R. Eyerly - Insurance Law Hawaii

The Texas Court of Appeals held that the insured need not prove the exact dates physical damage occurred in order to trigger defense and indemnity coverage. Vines-Herrin Custom Homes, LLC v. Great Am. Lloyds Ins. Co., 2011 Tex. App. LEXIS 10027 (Tex. Ct. App. Dec. 21, 2011).



In 1999, the insured built a home. He was insured under a CGL policy issued by Great American from November 9, 1998 to November 9, 2000. Thereafter, the insured held a CGL policy issued by Mid-Continent from November 9, 2000 to September 18, 2002.



After construction was completed, the insured sold the house to the buyer in May 2000. After moving in, the buyer found numerous construction defects in the home, including water entering cracks in the home, and sinking and sagging of parts of the house. The buyer sued the insured, who sought coverage under the two policies. When the insurers refused to defend the underlying suit, the insured sued for a declaratory judgment.



The underlying case went to arbitration and an award of $2.4 million was granted to the buyer. The insured assigned to the buyer his claims against the insurers.

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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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Texas Supreme Court Cements Exception to “Eight-Corners” Rule Through Two Recent Rulings

March 06, 2022 — Jeremy S. Macklin - Traub Lieberman Insurance Law Blog
The Texas “eight corners” rule precludes insurers from disclaiming a defense obligation based on facts not alleged in the underlying pleadings. Texas federal and appellate courts have been issuing rulings addressing exceptions to the eight corners rule and recently sought guidance from the Texas Supreme Court on whether Texas law recognizes such exceptions to the “eight corners” rule. The Texas Supreme Court has now spoken on the issue. Monroe Guar. Ins. Co. v. BITCO Gen. Ins. Corp., 65 Tex. Sup. Ct. J. 440 (2022). In Monroe, David Jones contracted with 5D Drilling & Pump Services in the summer of 2014 to drill a 3,600-foot commercial irrigation well on his farmland. In 2016, Jones sued 5D for breach of contract and negligence relating to 5D’s drilling operations on Jones’s property. Jones’s pleading was silent as to when the damage flowing from 5D’s alleged acts of misconduct occurred. BITCO and Monroe stipulated that 5D’s drill struck a bore hole during 5D’s drilling operations in or around November 2014. 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

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Quick Note: Subcontractor Payment Bond = Common Law Payment Bond

February 16, 2017 — David Adelstein – Florida Construction Legal Updates
What is a common law payment bond? A common law payment bond is a bond not required or governed by a statute. For example, if a prime contractor provides the owner a payment bond, that bond will be a statutory payment bond. On the other hand, if a subcontractor provides the general contractor with a payment bond, that bond will be a common law payment bond. Why? Because there is not a statute that specifically governs the requirements of a subcontractor’s payment bond given to a general contractor. The subcontractor’s payment bond is aimed at protecting the general contractor (and the general contractor’s payment bond) in the event the subcontractor fails to pay its own subcontractors and suppliers. The subcontractor’s payment bond will generally identify that claimants, as defined by the bond, are those subcontractors and suppliers the subcontractor has failed to pay. This common law payment bond is not recorded in the public records so sometimes it can be challenging for a claimant (anyone unpaid working under the subcontractor that furnished the bond) to obtain a copy of the bond. With that said, an unpaid claimant should consider pursuing a copy of this bond in certain situations, particularly if it may not have preserved a claim against the general contractor’s statutory payment bond. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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Retired Judge Claims Asbestos in Courthouse gave him Cancer

November 05, 2014 — Beverley BevenFlorez-CDJ STAFF
Amos Saunders, retired Passaic County, New Jersey, Superior Court judge claimed "he got cancer as a result of coming into contact with asbestos at the courthouse during his time on the bench," the New Jersey Law Journal reported. Saunders alleged "that he was exposed to asbestos throughout his tenure, up to and including an asbestos removal project at the Paterson, N.J., courthouse in the 1980s." The complaint filed, as quoted in the New Jersey Law Journal, stated that "he has been diagnosed with adenocarcinoma 'as a direct and proximate result' of 'inhalation and ingestion of dust particles and fibers' from asbestos products." According to the complaint, A. H. Environment Inc. was the contractor and Alaimo Group was the consulting engineer. Read the court decision
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Tender the Defense of a Lawsuit to your Liability Carrier

January 19, 2017 — David Adelstein – Florida Construction Legal Updates
Sometimes you come across a head scratcher. This would be a decision that does not seem to make a whole lot of sense. For instance, if you are sued and you maintain liability insurance that would potentially provide you a defense and indemnification, not notifying your insurance carrier is a head scratcher. You pay substantial dollars towards the premium of that policy. So, not then notifying your carrier about a lawsuit is a head scratcher, and I mean a head scratcher!! If you are sued, not only should the carrier be notified, but the defense of that lawsuit should be tendered to your liability carrier. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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Tennessee Court of Appeals Holds Defendant Has the Burden of Offering Alternative Measure of Damages to Prove that Plaintiff’s Measure of Damages is Unreasonable

July 18, 2018 — Gus Sara - The Subrogation Strategist
In Durkin v. MTown Construction, LLC, 2018 Tenn. App. LEXIS 128, the Court of Appeals of Tennessee considered whether the lower court properly took judicial notice of an alternative measure of damages to the measure of damages advanced by the plaintiff. The Court of Appeals held that the defendant has the burden of offering evidence of alternative measures of damages if it seeks to argue that the plaintiff’s measure of the damages is unreasonable. The Court of Appeals found that the lower court erred in taking judicial notice of alternative measures of damage when the defendant failed to meet its burden of proof. The court’s holding establishes that, if the defendant does not offer evidence of alternative measures of damage, then the measure of damages introduced by the plaintiff will apply. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams LLP
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Risky Business: Contractual Protections in the 'New Normal'

January 04, 2023 — Daniel Lund III - Construction Executive
The point of contracts is to create certainty to avoid litigated or arbitrated disputes. Still, the various parties in the construction process may have different risk tolerances. For example, general contractors are often characterized as “risk-tolerant.” That risk, though, is usually calculated by the contractor internally, outside the terms of the written contract, based on an assumption that the contractor can get the work done more cheaply and more quickly than the owner anticipated. Project owners typically want and expect close-to-absolute certitude—absolutely as to cost—in their construction contracts. The standard fixed-price or lump-sum construction contract is geared toward protecting that interest. Post-COVID-19, however, the discussion in the industry suggests that all bets are off when pricing and agreeing to construction work. Labor and materials shortages have sent owners and their design consultants backpedaling when general contractors pursuing a fixed-price contract seek contractual concessions that “un-fix” the price. Reprinted courtesy of Daniel Lund III , Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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The Impact of Sopris Lodging v. Schofield Excavation on Timeliness of Colorado Construction Defect Claims

January 26, 2017 — Jean Meyer - Colorado Construction Litigation
On October 20, 2016, the Colorado Court of Appeals announced the Sopris Lodging, LLC v. Schofield Excavation, Inc.[1] decision. The Sopris decision significantly altered the potential pitfalls awaiting a general contractor in pursuit of third-party claims as well as potential defenses available for a subcontractor defending against third-party claims. By way of background, the Sopris construction defect case arose out of the following facts: TDC was the general contractor for the construction of a hotel owned by Sopris Lodging. On March 11, 2011, Sopris Lodging sent TDC a notice of claim regarding alleged construction defects. On May 24, 2013, Sopris Lodging filed a complaint in district court asserting construction defect claims against one of the subcontractors of the hotel, and against the general contractor’s principals, but not the general contractor. Contemporaneous with the filing of the suit, Sopris Lodging and TDC entered into an agreement to toll the statute of limitations on Sopris Lodging’s potential claims against TDC. In August 2013, Sopris Lodging joined the general contractor to the suit. A year later, in 2014, the general contractor joined a variety of subcontractors as third-party defendants. Read the court decision
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Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Jean may be contacted at meyer@hhmrlaw.com

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