Fairfield Connecticut Building Expert Directory

New Jersey Condominium Owners Sue FEMA

June 11, 2014 — Beverley BevenFlorez-CDJ STAFF
Owners of a 230-unit New Jersey Condominium filed suit “against the Federal Emergency Management Agency and insurers and developers, seeking coverage and alleging the building was constructed with defects that led to severe flood damage during Hurricane Sandy.” According to Law 360, “[t]he complaint from 700 Grove Condominium Association Inc. alleges that common elements of the building were damaged and will continue to be damaged from floods because of defects caused by its contractors and architects.” The owners, according to the complaint, alleged that they “made a timely claim to its insurers, but [the insurers] denied coverage.” Read the court decision
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The Unwavering Un-waivable Implied Warranty of Workmanship and Habitability in Arizona

January 23, 2023 — Robert A. Henry & Emily R. Parker - Snell & Wilmer Real Estate Litigation Blog
The Arizona Supreme Court recently issued an opinion on the scope of the implied warranty of workmanship and habitability (the “implied warranty”) in contracts between homebuyers and builder/vendors that provides clear guidance of the law in this area, specifically on the issue of whether the implied warranty can be waived or disclaimed. It is also an interesting and helpful read for those who engage in new home residential sales and real estate transactions generally. The case: Zambrano v. M & RC, II LLC, 254 Ariz. 53 (2022). The takeaway holding: the implied warranty of workmanship and habitability cannot, under any circumstances, be disclaimed or waived. From a practice perspective, the foregoing is likely all one needs to ultimately know. However, the majority opinion (authored by Justice Timmer) and the dissent (authored by Justice King, and joined by Justice Bolick) are in these authors’ opinions worth a read for those who want a better understanding of the contours of how “public policy” plays into the analysis of the enforceability of contract terms, especially in the real estate context and even more particularly in connection with contracts for the sale of new homes. The careful analysis of both the majority opinion and the dissent provides an excellent history of the implied warranty, the public policy behind it, and its scope and application in the context of competing public policies, most notably the freedom to contract. Reprinted courtesy of Robert A. Henry, Snell & Wilmer and Emily R. Parker, Snell & Wilmer Mr. Henry may be contacted at bhenry@swlaw.com Ms. Parker may be contacted at eparker@swlaw.com Read the court decision
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Woodbridge II and the Nuanced Meaning of “Adverse Use” in Hostile Property Rights Cases in Colorado

November 23, 2020 — Luke Mecklenburg - Snell & Wilmer Real Estate Litigation Blog
Earlier this year, the Colorado Court of Appeals issued an opinion addressing at length “whether the requirement that the use be ‘adverse’ in the adverse possession context is coextensive with adverse use in the prescriptive easement context.” See Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2, cert. granted, No. 20SC292, 2020 WL 5405376 (Colo. Sept. 8, 2020). As detailed below, the Woodbridge II court concluded that the meanings of “adverse” in these two contexts are not coextensive—while “hostility” in the adverse possession context requires a claim of exclusive ownership of the property, a party claiming a prescriptive easement is only required to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Thus, the Woodbridge II court reasoned a claimants’ acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context. This significant ruling is at odds with a prior division’s broad statement, while considering a prescriptive easement claim, that “[i]n general, when an adverse occupier acknowledges or recognizes the title of the owner during the occupant’s claimed prescriptive period, the occupant interrupts the prescriptive use.” See Trask v. Nozisko, 134 P.3d 544, 553 (Colo. App. 2006). Perhaps for that reason, Woodbridge II is currently pending certiorari review before the Colorado Supreme Court in a case that should provide some much-needed clarity on what constitutes “adverse use” in the context of a prescriptive easement. As we await the Colorado Supreme Court’s decision, I thought it worthwhile to provide a brief analysis of the Woodbridge II court’s deep dive into the nuances of “adverse use” in this field of Colorado law. Read the court decision
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Reprinted courtesy of Luke Mecklenburg, Snell & Wilmer
Mr. Mecklenburg may be contacted at lmecklenburg@swlaw.com

California Restricts Principles of “General” Personal Jurisdiction

April 01, 2015 — Kristian B. Moriarty and R. Bryan Martin – Haight Brown & Bonesteel LLP
In BNSF Railway Company v. Superior Court (Kralovetz) (Filed 3/27/2015, No. B260798), the California Court of Appeal, Second District, held a Delaware railroad corporation, with its principal place of business in Texas, was not subject to “general” personal jurisdiction in California, despite California housing 8.1% of the corporation’s total workforce, accounting for 6% of the corporation’s revenue, and containing just under 5% of its total track mileage. Plaintiff, Vicki Kralovetz, filed suit in California Superior Court against defendant, BNSF Railway Company (“BNSF”), and others, for wrongful death. Plaintiff contended her husband was exposed to asbestos products manufactured by BNSF in Kansas while working at a dismantling facility owned by BNSF’s predecessor in interest. Plaintiff claimed the exposure caused her husband to contract mesothelioma, which resulted in his death. Reprinted courtesy of Kristian B. Moriarty, Haight Brown & Bonesteel LLP and R. Bryan Martin, Haight Brown & Bonesteel LLP Mr. Moriarty may be contacted at mmoriarty@hbblaw.com Mr. Martin may be contacted at bmartin@hbblaw.com Read the court decision
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Pennsylvania Modernizes State Building Code

October 30, 2018 — Joanna Masterson - Construction Executive
The Pennsylvania Independent Regulatory Review Commission has updated the state’s Uniform Construction Code to align with the 2015 International Code —a family of comprehensive and coordinated building codes used in all 50 states that are updated regularly and take into account the latest health and safety technology and building science advancements. Reprinted courtesy of Joanna Masterson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Entire Fairness or Business Judgment? It’s Anyone’s Guess

January 09, 2015 — Maurice Pesso, Greg M. Steinberg and Christopher J. Orrico – White and Williams LLP
In lawsuits challenging the validity of business transactions and combinations, the most significant issue is often which standard of review the court applies: the defense-friendly “Business Judgment Rule” or the more stringent “Entire Fairness Standard.” The standard utilized by the court – or more often times the standard which the parties think the court will apply – can drive decisions on motion practice, settlement discussions, and resolution strategy. Under the Business Judgment Rule, directors are presumed to have acted in good faith and their decisions will only be questioned when they are shown to have engaged in self-dealing or fraud. However, if a “Controlling Shareholder” stands on both sides of the transaction, the court will often scrutinize the transaction under the more plaintiff-friendly “Entire Fairness Standard.” So, what constitutes a “Controlling Shareholder?” If the party in question owns more than 50% of a company’s equity, the answer is clear-cut. However, for cases involving stockholders who own less than 50% of a company’s equity and stand on both sides of the disputed transaction, the answer is not so simple. This uncertainty was highlighted in back-to-back decisions by the Delaware Chancery Court in November 2014. On November 25, 2014, the court granted the defendants’ motion to dismiss a derivative lawsuit alleging breach of fiduciary duty in In Re Sanchez Energy Derivative Litigation (“Sanchez”). Vice Chancellor Glasscock held that the complaint failed to plead facts sufficient to raise an inference that two directors with a collective 21.5% equity interest in the company were Controlling Shareholders. The very next day, in In Re Zhongpin Inc. Stockholders Litigation (“Zhongpin”), the Delaware Chancery Court denied the defendants’ motion to dismiss breach of fiduciary duty claims against an alleged “Controlling Shareholder” and members of the company’s board. In Zhongpin, Vice Chancellor Noble held that sufficient facts were plead to raise an inference that a CEO with a 17.5% equity was a “Controlling Shareholder.” Reprinted courtesy of White and Williams LLP attorneys Maurice Pesso, Greg M. Steinberg and Christopher J. Orrico Mr. Pesso may be contacted at pessom@whiteandwilliams.com Mr. Steinberg may be contacted at steinbergg@whiteandwilliams.com Mr. Orrico may be contacted at orricoc@whiteandwilliams.com Read the court decision
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Third Circuit Follows Pennsylvania Law - Damage Caused by Faulty Workmanship Does Not Arise from an Occurrence

May 10, 2013 — Tred Eyerly
The Third Circuit followed Pennsylvania law in determining that damage caused by faulty workmanship did not arise from an occurrence. Zurich Am. Ins. Co. v. R. M. Shoemaker Co., 2013 U.S. App. LEXIS 6093 (3d Cir. March 27, 2013). The County sued R. M. Shoemaker, alleging faulty construction of an addition to a correctional institution. The County alleged Shoemaker negligently supervised its subcontractor, thereby permitting the subcontractor to engage in willful misconduct, resulting in damage to structural elements of the correctional institution. The County alleged that Shoemaker's negligence permitted water to intrude, damaging the electrical systems, acoustic ceilings and miscellaneous equipment. Zurich sought a declaratory judgment that it was not required to defend or indemnify Shoemaker. The district court granted Zurich summary judgment. Relying on Pennsylvania law, the district court found that the allegations in the underlying action did not arise from an occurrence. Read the court decision
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Reprinted courtesy of Tred Eyerly
Mr. Eyerly can be contacted at te@hawaiilawyer.com

High Attendance Predicted for West Coast Casualty Seminar

March 19, 2014 — Beverley BevenFlorez-CDJ STAFF
With the diverse speakers and topics planned for this year’s West Coast Casualty Seminar in Anaheim, California on May 15th and 16th, attendance should be high. In 2013, there were approximately 1600 attendees coming from across the country as well as the United Kingdom. The event planners recently added additional blocks of rooms, as the Disneyland Hotel has sold out 90% of the previously allotted room blocks. The planners urge attendees to book their rooms soon. Seminar and panel topics have been announced. Thomas J. Halliwell, Esq. and Barry Vaughan, Esq. will be starting the seminar off with a discussion of “Recent California, Arizona and Nevada Court Decisions that Impact Construction Litigation and Defect Claims.” May 16th will feature a number of interesting break-out sessions including “Working Smarter with Technology” with speakers Brian Kahn, Esq., Paul R. Kiesel, Esq., Hon. Peter Lichtman (ret), Hon. Nancy Wieben Stock (ret), Peter S. Curry and Don MacGregor (Bert L. Howe & Associates, Inc.). Download Invitation and Register for Seminar... Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES