FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Kiewit-Turner Stops Work on VA Project—Now What?

December 31, 2014 — Craig Martin – Construction Contractor Advisor
The Kiewit-Turner joint venture created to build the VA’s hospital near Denver stopped work on December 10 after the Civilian Board of Contract Appeals ruled that the VA breached the contract. Kiewit-Turner claims that the VA owes it over $100 million on the project. And, given the appeals board’s recent ruling entirely against the VA, the claim may get some traction. This project has been plagued with problems from the beginning. One strange aspect of the project is the VA’s apparent unwillingness to incorporate value engineering or require the architects to redesign the project to fit within the budget. The latest budget was $582M, while the latest projections show that the project will cost more than $1 billion to complete. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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CA Supreme Court Permits Insurers to Bring Direct Actions Seeking Reimbursement of Excessive Fees Against Cumis Counsel Under Limited Circumstances

August 19, 2015 — David W. Evans & Valerie A. Moore – Haight Brown & Bonesteel LLP
The California Supreme Court held in Hartford Casualty Insurance Company v. J.R. Marketing, L.L.C. (Squire Sanders) (8/10/2015 - #S211645) that if Cumis counsel, operating under a court order which such counsel drafted and which expressly provided that the insurer would be able to recover excessive fees, sought and received fee payments from the insurer that were fraudulent or otherwise manifestly and objectively useless and wasteful when incurred, Cumis counsel have been unjustly enriched at the insurer’s expense and the insurer will be permitted under such limited circumstances to seek reimbursement directly from Cumis counsel. Certain Hartford insureds who had been issued commercial general liability policies were sued in multiple proceedings for a variety of claims, including unfair competition, defamation and intentional misrepresentation. Hartford disclaimed a duty to defend or to indemnify the defendants on the grounds that the acts complained of occurred prior to Hartford’s policy, and that some of the defendants were not Hartford insureds. A coverage action was filed by some of the insureds against Hartford; they were represented by the Squire Sanders law firm. Although Hartford subsequently agreed to defend several of the defendants subject to a reservation of rights, it declined to pay defense expenses incurred prior to the date of such agreement. Some months later, the trial court entered a summary adjudication order, finding that Hartford had a duty to have defended the liability action on the date it was originally tendered; the order required Hartford to fund the insured’s defense with independent counsel (i.e., so-called “Cumis” counsel; see San Diego Federal Credit Union v. Cumis Insurance Society, Inc. (1984) 162 Cal.App.3d 358). The insureds retained Squire Sanders as their Cumis counsel. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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SDNY Vacates Arbitration Award for Party-Arbitrator’s Nondisclosures

April 13, 2017 — Justin K. Fortescue & Ciaran B. Way - White and Williams LLP
The US District Court for the Southern District of New York recently vacated an arbitration award finding that a party-appointed arbitrator’s undisclosed relationship with the party appointing him was significant enough to demonstrate evident partiality. Certain Underwriting Members at Lloyd’s of London, et. al. v. Ins. Companies of America, Inc., Nos. 16-cv-232 and 16-cv-374 (S.D.N.Y. March 31, 2017). In the arbitration, the panel was asked to determine whether the reinsurance contracts, covering workers’ compensation policies, only applied when multiple claimants were injured as the result of the same loss occurrence. After a three-day hearing, the arbitration panel issued an award in favor of the ceding company, Insurance Companies of America (ICA). After the award was issued, Lloyd’s discovered that ICA’s arbitrator had significant undisclosed relationships with principals at ICA and moved to vacate the award in federal court. Reprinted courtesy of Justin K. Fortescue, White and Williams LLP and Ciaran B. Way, White and Williams LLP Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com Ms. Way may be contacted at wayc@whiteandwilliams.com Read the court decision
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Arbitration Denied: Third Appellate District Holds Arbitration Clause Procedurally and Substantively Unconscionable

February 15, 2021 — Stephen M. Tye & Lawrence S. Zucker II - Haight Brown & Bonesteel
In Cabatit v Sunnova Energy Corporation, the Third Appellate District held that an arbitration clause in a solar power lease agreement was unenforceable because it was procedurally and substantively unconscionable. In Cabatit, Mr. and Ms. Cabitat entered into a solar power lease agreement (the “Agreement”) with Sunnova Energy Corporation (“Sunnova”). Ms. Cabitat, who signed the agreement, speaks English but does not understand complicated or technical terms. The salesperson scrolled through the agreement language and Ms. Cabatit initialed where the salesperson indicated, even though she did not understand most of what he was saying. The salesperson did not explain anything about the arbitration clause nor did he provide Ms. Cabatit with a copy of the Agreement. Reprinted courtesy of Stephen M. Tye, Haight Brown & Bonesteel and Lawrence S. Zucker II, Haight Brown & Bonesteel Mr. Tye may be contacted at stye@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 Violation

June 05, 2017 — Jon A. Turigliatto & Chelsea L. Zwart - CGDRB News & Publications
The Fourth District California Court of Appeal published its decision, Acqua Vista Homeowners Assoc. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, holding that claims against a material supplier under SB800 (Civil Code §895, et. seq.) require proof that the SB800 violation was caused by the supplier’s negligence or breach of contract. In this case, Acqua Vista Homeowners Association (“the HOA”) sued MWI, a supplier of Chinese pipe used in the construction of the Acqua Vista condominium development. The HOA’s complaint asserted a single cause of action for violation of SB800 standards, and alleged that defective cast iron pipe was used throughout the building. At trial, the HOA presented evidence that the pipes supplied by MWI contained manufacturing defects, that they leaked, and that the leaks had caused damage to various parts of the condominium development. The jury returned a special verdict against MWI, and the trial court entered a judgment against MWI in the amount of $23,955,796.28, reflecting the jury’s finding that MWI was 92% responsible for the HOA’s damages. MWI filed a motion for a directed verdict prior to the jury’s verdict and motion for judgment notwithstanding the verdict following the entry of judgment, both on the grounds that the HOA had failed to present any evidence that MWI had caused a SB800 violation as a result of its negligence or breach of contract, and had therefore failed to prove negligence and causation as required by SB800. MWI relied on the Fourth District’s prior decision in Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, and its interpretation therein of Civil Code §936, which states, in relevant part, that the statute applies “to general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals to the extent that the general contractors, subcontractors, material suppliers, individual product manufacturers, and design professionals caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract….” (emphasis added.) However, the trial court denied both motions, relying on the last sentence of Civil Code §936, which states in part, “[T]he negligence standard in this section does not apply to any…material supplier…with respect to claims for which strict liability would apply.” Reprinted courtesy of Jon A. Turigliatto, Chapman Glucksman Dean Roeb & Barger and Chelsea L. Zwart, Chapman Glucksman Dean Roeb & Barger Mr. Turigliatto may be contacted at jturigliatto@cgdrblaw.com Ms. Zwart may be contacted at czwart@cgdrblaw.com Read the court decision
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Wichita Condo Association Files Construction Defect Lawsuit

November 20, 2013 — CDJ STAFF
Key Construction, the contractor of a downtown Wichita, Kansas mixed-use development has been sued by the condominium association of the development’s condo building. The WaterWalk Place Owners Association claims that the balconies on the building do not drain properly. Additionally, the suit claims that the building has water intrusion problems due to inappropriate or missing sealant at windows, doors, and expansion joints. Key Construction says that they are dealing with the problems and describe the suit as due to “a deadline pushing on” the residents. Wyatt Hock, the attorney for the residents, says that he hopes for a settlement. Read the court decision
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Commercial Development Nearly Quadruples in Jacksonville Area

December 04, 2013 — CDJ STAFF
Construction is up in the Jacksonville area, and no sector is doing better than commercial construction. During the first ten months of 2012, there was $21.2 million of commercial construction, but during the first ten months of 2013, there was been $73.2 million of commercial construction, helped along by a $13.7 million medical complex. In addition to the massive growth in commercial construction, residential construction is up, but by a comparatively modest 52%. Read the court decision
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Pennsylvania Supreme Court’s Ruling On Certificates Of Merit And “Gist Of Action” May Make It More Difficult For An Architect Or Engineer To Seek An Early Dismissal

January 07, 2015 — Jerrold P. Anders and Michael W. Jervis - White and Williams LLP
In Bruno v. Erie Ins. Co., the Pennsylvania Supreme Court clarified the gist of the action doctrine that distinguishes between tort and contract claims. In doing this, the Court also ruled that a Certificate of Merit in a professional liability claim is necessary only if the plaintiff is in a direct client relationship with the licensed professional. This clarification of the Certificate of Merit requirement may limit the ability of architects and engineers to obtain an early dismissal in lawsuits. Bruno v. Erie Ins. Co. involves a common scenario. The Brunos filed a claim with their homeowners’ insurer after discovering mold in their home during remodeling. The policy included an endorsement providing coverage for mold. As part of the claim adjustment, Erie hired an engineer to inspect the mold and to provide an opinion on its severity to determine the extent of remediation required. The engineer hired by Erie reported to Mr. Bruno that the mold was harmless, that concern over health problems due to mold was merely a “media frenzy,” and that the Brunos should continue with their renovations. Reprinted courtesy of Jerrold P. Anders, White and Williams LLP and Michael W. Jervis, White and Williams LLP Mr. Anders may be contacted at andersj@whiteandwilliams.com Mr. Jervis may be contacted at jervism@whiteandwilliams.com Read the court decision
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