Columbus Ohio Building Expert Directory

The Value of Photographic Evidence in Construction Litigation

April 26, 2021 — Marie Mueller - Construction Executive
If a picture is worth a thousand words, can it be worth a thousand dollars? Ten thousand? Maybe, if it provides key evidence in a construction dispute. Litigating a construction case involves each side telling their story. Details and visual context make a story compelling. Evidence and corroboration make a story persuasive. Photographs can help on both of these fronts. The Value of Photographic Evidence in Construction Litigation Consider the following examples:

A dispute relates to the timeliness of particular work. An employee has a memory of a load of materials arriving to the site later than it should have, but the records are incomplete or ambiguous about when it actually occurred. If the employee also took a photo of the materials, on the day they arrived, they could match up the date of the photo to their memory and build a clear timeline.
A dispute relates to the presence or absence of obstructions in drilled shafts. There are no available photographs or videos of the work due to site restrictions. Presentation of this type of case may be severely limited by not being able to show photos depicting the size, shape and type of material removed from the shafts, and by the lack of video depicting the work.

Reprinted courtesy of Marie Mueller, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Ms. Mueller may be contacted at mmueller@verrill-law.com

Connecticut Court Clarifies Construction Coverage

June 28, 2013 — CDJ STAFF
The Connecticut Supreme Court has recently ruled on a case in which breach of contract and bad-faith claims were made against an insurer in an construction defect case. Joseph K. Scully of Day Pitney LLP discussed the case in a piece on Mondaq. Mr. Scully noted that the background of the case was that Capstone Building was the general contractor and project developer of a student housing complex for the University of Connecticut. Unfortunately, the building had a variety of problems, some of which were violations of the building code. Mr. Scully noted that the building had “elevated carbon monoxide levels resulting from inadequate venting, improperly sized flues.” Capstone entered into mediation with the University of Connecticut. Capstone’s insurer, the American Motorists Insurance Company (AMICO), declined involvement in the participation. Afterward, Capstone sued AMICO. The issues the court covered involved the insurance on this project. The court addressed three questions. The first was “whether damage to a construction project caused by construction defects and faulty workmanship may constitute ‘property damage’ resulting from an ‘occurrence.’” The court concluded that it could “only if it involved physical injury or loss of use of ‘nondefective property.’” The second question dealt with whether insurers were obligated to investigate insurance claims. The court, “agreeing with the majority of jurisdictions,” did not find “a cause of action based solely on an insurer’s failure to investigate a claim.” Under the terms of the contract, it was up to AMICO to decide if it was going to investigate the claim. Thirdly, the court examined whether “an insured is entitled to recover the full amount of a pre-suit settlement involving both covered and noncovered claims after an insurer wrongfully disclaims coverage.” The court concluded that the limits are that the settlement be reasonable, the policy limit, and the covered claims. Mr. Scully concludes that the decision will limit “the scope of coverage for construction defect claims” and “also imposes reasonable requirements on an insured to allocate a settlement between covered and noncovered claims. Read the court decision
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Unpaid Hurricane Maria Insurance Claims, New Laws in Puerto Rico, and the Lesson for all Policyholders

January 09, 2019 — Walter J. Andrews & Cary D. Steklof - Hunton Andrews Kurth
Puerto Rico’s dire insurance situation more than a year after Hurricane Maria remains a constant reminder of why policyholders must diligently pursue their property and business interruption claims in the immediate aftermath of a storm. The numbers are staggering. On an island the approximate size of Connecticut, Hurricane Maria caused an estimated $100 billion in damage. According to the Office of the Insurance Commissioner of Puerto Rico, the hurricane resulted in more than 287,000 insurance claims. Roughly 11,000 of those claims, representing an estimated $2 billion in losses, remain unresolved. Reprinted courtesy of Walter J. Andrews , Hunton Andrews Kurth and Cary D. Steklof , Hunton Andrews Kurth Mr. Andrews may be contacted at wandrews@HuntonAK.com Mr. Steklof may be contacted at csteklof@HuntonAK.com Read the court decision
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It's a Wrap! Enforcing Online Agreements in Light of the CPRA

March 08, 2021 — Kyle Janecek – Newmeyer Dillion
We're all familiar with it at this point. A popup comes up on your device informing you of a change to terms and conditions, or otherwise asking for permission. For those operating websites, they know that this inconvenience is required to comply with various legal requirements. What they may not be aware of yet, is that these requirements, and popups, are about to become much, much, more prevalent. Recently, the California Privacy Rights Act ("CPRA"), passed by the voters of the State of California, includes new language specifying how consent is supposed to be obtained for the collection of personal information, amending the California Consumer Privacy Act ("CCPA"). This new manner of consent rules out browsewrap agreements, and would require that popups increase as website operators shift focus to clickwrap agreements, if they have not already. Browsewrap and Clickwrap Typically, online agreements comprising Terms of Service or a Privacy Policy can be broken into either (a) browsewrap agreements - agreements that imply assent or agreement to online terms by the mere act of using a website or an online service after a clear and conspicuous notice that terms exist or (b) clickwrap agreements - agreements that show assent or agreement to online terms by having an individual click or otherwise agree to. While the best option to ensure enforceability is always the one that leaves the most documented signs of assenting to terms (i.e. a clickwrap agreement), both are typically recognized and enforced under California law. The practical effect of this is that to get consent, all that is technically needed is either to (a) show actual consent by having the person click on an "I agree" button, or (b) provide that the website visitor had ample notice that terms existed. Read the court decision
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Reprinted courtesy of Kyle Janecek, Newmeyer Dillion
Mr. Janecek may be contacted at kyle.janecek@ndlf.com

Insurer Beware: Failure to Defend Ends with Hefty Verdict

June 01, 2011 — Douglas Reiser, Builders Council Blog

Served with a lawsuit that you turned over to your insurer? Insurer refusing to defend you? Well, find some hope in this news. Washington’s IFCA has the claws to ensure that insurers perform their duties.

Contractors heavily rely on the defense provisions of their Commercial General Liability (CGL) policies. In construction, a legal dispute can easily rear its head when you least expect it. Luckily, Washington registered contractors are required to maintain CGL insurance. That insurance often provides contractors with adequate legal defense in the event that they are sued.

But, what if your insurer turns down the defense request? They might be staring at massive damages. A current Reiser Legal client, Australia Unlimited, Inc., recently won a large verdict against Hartford Insurance, after the insurer unreasonably denied their claim. The firm who represented Australia Unlimited Inc. in that case, Hackett Beecher and Hart, were successful in procuring a $5.43 Million verdict

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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com

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Federal Court in New York Court Dismisses Civil Authority Claim for COVID-19 Coverage

October 11, 2021 — Eric D. Suben - Traub Lieberman
Courts nationwide have been grappling with coverage for business interruption claims arising from closures occasioned by the COVID-19 pandemic, with mixed results by jurisdiction. A recent decision on the issue from the federal Southern District of New York sheds light on New York law regarding this pressing issue. In Elite Union Installations, LLC v. National Fire Insurance Company of Pittsburgh, PA, 2021 WL 4155016 (Sept. 13, 2021), directives issued by governmental authorities required the insured construction company to shut its doors, leading to a layoff of some employees while others continued to work from home. The insured made a claim under its commercial property coverage for damage to its premises, which it claimed were rendered “uninhabitable” and required repair in the form of alterations to comply with social distancing requirements. In the ensuing coverage litigation, National Union moved to dismiss the complaint alleging covered first-party property damage defined in the policy as “direct physical loss of or damage to property.” Read the court decision
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Reprinted courtesy of Eric D. Suben, Traub Lieberman
Mr. Suben may be contacted at esuben@tlsslaw.com

Structural Problems May Cause Year-Long Delay Opening New Orleans School

January 29, 2014 — Beverley BevenFlorez-CDJ STAFF
According to the Uptown Messenger, structural issues found at Audubon Charter School’s Broadway campus in New Orleans, Louisiana, will require “selective demolition” and “could delay students’ return by as much as a full year.” Late September of last year, “officials discovered that some of the steel supports around the stair towers were not level—some of the steel beams lean out several inches, so that the floors are not parallel.” Discovering the problem will require some demolition, according to Chris Young of Blitch Knevel architects as quoted in the Uptown Messenger: “…we’re going to have to tear down a lot of this construction to expose that steel frame to make sure that every steel beam is straight and true and not deformed.” Read the court decision
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Construction Law Alert: Unlicensed Contractors On Federal Projects Entitled To Payment Under The Miller Act

May 07, 2014 — Steven M. Cvitanovic and Jessica M. Lassere Ryland - Haight Brown & Bonesteel, LLP
As a matter of first impression, the Ninth Circuit Court of Appeals in Technica LLC ex rel. U.S. v. Carolina Cas. Ins. Co., 12-56539, 2014 WL 1674108 (9th Cir. Apr. 29, 2014), allowed an unlicensed subcontractor to recover from a prime contractor for unpaid services relating to a federal construction project under a federal Miller Act claim. California law otherwise prevents unlicensed contractors from recovering for unpaid work on non-federal projects as a penal measure intended to encourage contractors to maintain a valid license at all times. Technica LLC (“Technica”) worked as a sub-subcontractor on a large federal fence replacement project (the “Project”). Over the course of a year, Technica supplied nearly a million dollars worth of labor, materials, and services for the Project. However, Technica received only $287,861.81 in partial payments for its work. Technica proceeded to file suit in district court against the prime contractor Candelaria Corporation (“Candelaria”) and its payment surety Carolina Casualty Insurance Company (“CCIC”) under the Miller Act to recover amounts owed to it on the subcontract against the payment bond. Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel, LLP and Jessica M. Lassere Ryland, Haight Brown & Bonesteel, LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com; Ms. Lassere Ryland may be contacted at jlassere@hbblaw.com Read the court decision
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