Fairfield Connecticut Building Expert Directory

Cogently Written Opinion Finds Coverage for Loss Caused By Defective Concrete

November 07, 2012 — Tred Eyerly, Insurance Law Hawaii
If ever in need of a concise, well-reasoned opinion on “occurrence,” “property damage” and applicability of the business risk exclusions, turn to Pamperin Rentals II, LLC v. R.G. Hendricks & Sons Construction, Inc., 2012 Wis Ct. App. LEXIS 698 (Wis. Ct. App. Sept. 5, 2012). A contractor was hired to install concrete during construction of seven gas stations. Red-D-Mix provided the concrete. The contractor and Red-D-Mix were eventually sued by the gas stations, based upon allegations that the concrete was defectively manufactured and installed. The gas stations alleged that Red-D-Mix supplied concrete that was defective and resulted in damages, including the need to repair nearby asphalt. Red-D-Mix tendered to its insurers, who denied coverage. Suit was filed and the insurers moved for summary judgment. The trial court determined there were no allegations of either “property damage” or an “occurrence.” Therefore, there was no duty to defend or indemnify Red-D-Mix. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii.
Mr. Eyerly can be contacted at te@hawaiilawyer.com

NJ Condo Construction Defect Case Dismissed over Statute of Limitations

June 11, 2014 — Beverley BevenFlorez-CDJ STAFF
According to an article by Matthew D. Stockwell of the firm Pillsbury Winthrop Shaw Pittman, LLP published in Lexology, “a trial court in Bergen County, New Jersey dismissed a condominium association's construction defect claims against several construction entities for failure to comply with the applicable statute of limitations.” Stockwell stated that the “aftermath will be interesting to follow, because the trial court stripped away some of the protection that New Jersey's discovery rule affords to property owners who become aware of latent defects well after a project is substantially completed.” Read the court decision
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Washington First State to Require Electric Heat Pumps

May 23, 2022 — James Leggate - Engineering News-Record
A new ruling in Washington state that will require all new commercial buildings to use electric heat pumps is supported by environmentalists but opposed by several construction industry interests. The opposition fears the rule will have a negative impact on the cost and volume of real estate development. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Using the Prevention Doctrine

April 22, 2019 — David Erhart - Gordon & Rees Construction Law Blog
The following scenario happens regularly in the construction industry. A contractor on a project reaches out to a subcontractor to perform work. Excited about the prospect of performing the work, the subcontractor signs a contract and puts it nose to the grindstone. After dutifully completing the work the subcontractor turns to the contractor and asks to be paid. But, the contractor refuses saying that there is a provision in the subcontract that says the contractor is only obligated to pay the subcontractor if the contractor receives payment from the owner. So the contractor has completed the work, but has no money to show for it. One potential remedy for a subcontractor in this situation is the use of the prevention doctrine. “Under the prevention doctrine, ‘if a promisor prevents or hinders fulfillment of a condition to his performance, the condition may be waived or excused.’” Cox v. SNAP, Inc., 859 F.3d 304, 308 (4th Cir. 2017) (quoting Moore Bros. Co. v. Brown & Root, Inc., 207 F.3d 7171, 725 (4th Cir. 2000)). “Put simply, ‘where a party to a contract is the cause of the failure of the performance of the obligation due him or her, that party cannot in any way take advantage of that failure.’” Haddon Hous Assocs v. United States, 711 F.3d 1330, 1338 (Fed. Cir. 2013) (quoting Restatement (Second) of Contracts § 245; Williston, § 39:4). Read the court decision
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Reprinted courtesy of David Erhart, Gordon & Rees Scully Mansukhani
Mr. Erhart may be contacted at derhart@grsm.com

Texas Legislative Update

July 19, 2017 — Matthew S.C. Moore & Justin (JD) D. Holzeauser – Peckar & Abramson, P.C.
The marquee fight between Lt. Governor Patrick and Speaker Straus, otherwise known as the 85th Regular Legislative Session, concluded on May 29, 2017. While the political clash over the controversial “bathroom bill” will continue during the special legislative session, this article is intended to provide a brief summary of the construction-related bills that passed during the regular session and a few notable ones that did not pass. A special session has been called by Governor Abbott, but no construction-related bills were included on the agenda. What Passed? HB 2121 – Attorney’s fees for state breach of contract claims. A contractor who prevails on a state breach of contract claim pursuant to Chapter 2260 of the Government Code, that is also valued at less than $250,000.00, may recover attorney’s fees. By using the word “may”, the bill implies that the award of attorney’s fees will be at the discretion of the administrative law judge. This bill became law on June 15, 2017. HB 1463 – Right to cure ADA violations. A person with a disability may assert a claim for discrimination based on a violation of the building and architectural standards established in Chapter 469 of the Government Code. However, this bill requires the claimant to provide the respondent written notice at least sixty (60) days before filing an action for the violation and further gives the respondent an opportunity to cure the alleged violation within the sixty (60) day period. The obvious benefit of this bill is that it allows the respondent, e.g., the owner or potentially the contractor, an opportunity to remediate the violation without incurring litigation costs. This bill becomes effective law on September 1, 2017. Reprinted courtesy of Matthew S.C. Moore, Peckar & Abramson, P.C. and Justin (JD) D. Holzeauser, Peckar & Abramson, P.C. Mr. Moore may be contacted at mmoore@pecklaw.com Mr. Holzheauser may be contacted at jdholzheauser@pecklaw.com Read the court decision
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Carin Ramirez and David McLain recognized among the Best Lawyers in America© for 2021

March 15, 2021 — Colorado Construction Litigation Blog
Higgins, Hopkins, McLain & Roswell is pleased to announce that Carin Ramirez and David McLain were recently selected by their peers for inclusion in The Best Lawyers in America© for 2021. Carin Ramirez has been recognized for her work in insurance litigation and David McLain has been recognized for his work in construction law. Carin Ramirez has over 11 years of experience in civil defense litigation with an emphasis on the defense of construction defect lawsuits on behalf of developers, general contractors, and other construction professionals. She also practices in the areas of personal injury defense, premises liability, environmental torts, wrongful death, negligent design, property damage, subrogation claims, contract disputes, bad faith, and commercial litigation. David McLain has over 22 years of experience and is well known for his work in the defense of the construction industry, particularly in the area of construction defect litigation. He is a member of the Executive Committee of the CLM Claims College - School of Construction, which is the premier course for insurance, industry, and legal professionals. HHMR is highly regarded for its expertise in construction law and the litigation of construction-related claims, including the defense of large and complex construction defect matters. Our attorneys provide exceptional service to individuals, business owners, Fortune 500 companies, and the insurance industry. The firm is experienced in providing legal support throughout trials and alternative dispute resolution such as mediations and arbitrations. Read the court decision
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Reprinted courtesy of Higgins, Hopkins, McLain & Roswell

CDC Issues Moratorium on Residential Evictions Through 2020

October 05, 2020 — Steven E. Ostrow, C. Jason Kim, & Marissa Levy - White and Williams LLP
On September 1, 2020, the Centers for Disease Control and Prevention (CDC) announced that it was issuing an order (CDC Order) to temporarily halt residential evictions to prevent the further spread of COVID-19. The CDC Order became effective on September 4, 2020 and will remain in effect through December 31, 2020. The purpose of the CDC Order is to keep tenants in their residences to reduce crowding in shelters or other shared housing and to reduce the number of unsheltered homeless, as those conditions have been shown to increase the spread of COVID-19. APPLICABILITY & PROTECTIONS The CDC Order is broader than the previous eviction moratorium under the Coronavirus Relief and Economic Security Act (CARES Act), which applied only to federally-funded housing and expired on July 24, 2020. Eligible renters include those who qualified for a stimulus check under the CARES Act and individuals who expect to make less than $99,000 this year or a joint-filing couple that expects to make less than $198,000. Reprinted courtesy of Steven E. Ostrow, White and Williams LLP, C. Jason Kim, White and Williams LLP, and Marissa Levy, White and Williams LLP Mr. Ostrow may be contacted at ostrows@whiteandwilliams.com Mr. Kim may be contacted at kimcj@whiteandwilliams.com Ms. Levy may be contacted at levymp@whiteandwilliams.com Read the court decision
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Insurance Coverage for COVID-19? Two N.J. Courts Allow Litigation to Proceed

March 06, 2022 — Bethany L. Barrese - Saxe Doernberger & Vita, P.C.
Courts across the nation have struggled to determine whether insurance policies that provide coverage for “direct physical loss or damage” insure losses stemming from COVID-19. Many courts have been applying an overly stringent pleading standard, inappropriately granting insurers’ motions to dismiss as a result of the insureds’ purported failure to allege that COVID-19 caused damages covered by their policies or because certain exclusions supposedly barred coverage. However, two New Jersey state courts recently decided these issues in favor of the insureds in well-reasoned opinions that give proper deference to procedural pleading standards and substantive insurance coverage law. A. COVID-19 causes “direct physical loss or damage” In AC Ocean Walk, LLC v. American Guarantee and Liability Ins. Co., the New Jersey Superior Court held that physical alteration to an insured’s property is not a prerequisite to coverage for losses due to COVID-19. The insured, Ocean Casino, sued multiple insurers for COVID-19 losses, alleging that the virus caused Ocean Casino to shut down and suffer a loss of use of its property. Looking at the language of the policies, the court explained that each policy’s insuring agreement substantially read the same:

“This policy insures against direct physical loss of, or damage caused by, a covered cause of loss to covered property, at an insured location [the casino] … subject to the terms, conditions, and exclusions stated in this policy.”

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Reprinted courtesy of Bethany L. Barrese, Saxe Doernberger & Vita, P.C.
Ms. Barrese may be contacted at BBarrese@sdvlaw.com

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