FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Proposition 65: OEHHA to Consider Adding and Delisting Certain Chemicals of Concern

September 03, 2015 — Lee Marshall & Jeffrey A. Vinnick – Haight Brown & Bonesteel LLP
The Office of Environmental Health Hazard Assessment (“OEHHA”), which is responsible for determining the chemicals that are included on its list of chemicals known to be carcinogenic or to cause reproductive harm, thereby requiring businesses to comply with the rules accorded under California’s Proposition 65, has announced the beginning of a 45-day public comment period on five chemicals:

• Nickel
• Pentachlorophenol
• Perfluorooctanoic acid (PFOA)
• Perfluorooctane sulfonate (PFOS)
• Tetrachloroethylene
Reprinted courtesy of Lee Marshall, Haight Brown & Bonesteel LLP and Jeffrey A. Vinnick, Haight Brown & Bonesteel LLP Mr. Marshall may be contacted at lmarshall@hbblaw.com Mr. Vinnick may be contacted at jvinnick@hbblaw.com Read the court decision
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In Pennsylvania, Contractors Can Be Liable to Third Parties for Obvious Defects in Completed Work

July 10, 2023 — Michael L. DeBona - The Subrogation Strategist
In Brown v. City of Oil City, No. 6 WAP 2022, 2023 Pa. LEXIS 681 (2023), the Supreme Court of Pennsylvania (Supreme Court) recently held that a contractor can be liable for dangerous conditions it creates even if the hazard is obvious or known by the property owner. In City of Oil City, the City of Oil City (Oil City) contracted with Harold Best and Struxures, LLC and Fred Burns, Inc. (collectively Contractors) to reconstruct the concrete stairs to the city library. Contractors completed their work at the end of 2011. In early 2012, Oil City received reports of issues with the stairs. Oil City notified Contractors that it considered the stairs dangerous and that Contractors’ defective workmanship created the condition. Neither Oil City or Contractors took any action to fix the stairs or warn of the danger and the stairs’ condition worsened with time. On November 23, 2015, David and Kathryn Brown exited the library. Kathryn Brown tripped on one of the deteriorated steps, falling and striking her head. Kathryn suffered a traumatic head injury and passed away six days later. The Estate of Kathryn Brown and David Brown, individually (collectively, the Browns), sued Oil City as the owner of the library and Contractors. With respect to Contractors, the Browns asserted that Contractors’ work on the stairs created a dangerous condition that presented an unreasonable risk of harm to those using the steps. Read the court decision
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Reprinted courtesy of Michael L. DeBona, White and Williams
Mr. DeBona may be contacted at debonam@whiteandwilliams.com

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Policy Reformed to Add New Building Owner as Additional Insured

July 10, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The lower court correctly reformed the policy to replace the prior owner with the new owner as an additional insured under the policy. Wesco Ins. Co. v. Fulmont Mut. Ins. Co., 2023 N.Y. App. Div. LEXIS 2650 (N. Y. App. Div. May 11, 2023). Beyond was sued as owner of the building in a personal injury lawsuit. The former owners leased the building to the tenant who included the then-owners as additional insureds under the tenant's policy. When the deed to the building was transferred to Beyond, the additional insured endorsement in the tenant's policy was not updated to reflect the change in ownership. Beyond's insurer, Wesco, tendered the lawsuit to the tenant's insurer, Fulmont. Coverage was denied because Beyond was not an additional insured under the tenant's policy. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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A Relatively Small Exception to Fraud and Contract Don’t Mix

April 01, 2015 — Christopher G. Hill – Construction Law Musings
Remember all of my posts about how fraud and contract claims don’t usually play well in litigation? Well, as always with the law, there are exceptions. For instance, a well plead Virginia Consumer Protection Act claim will survive a dismissal challenge. A recent opinion out of the Alexandria division of the U. S. District Court for the Eastern District of Virginia sets out another exception, namely so called fraudulent inducement. In XL Specialty Ins. Co. v. Truland et al, the Court considered the question of whether both a tort and contract claim can coexist in the same lawsuit when the tort claim is based upon the information provided to the plaintiff when that information proves false. As the courts of Virginia have held for years, only certain information and statements made pre-contract can be the basis for a fraud claim in the face of a contractual duty to perform. One type of statement that is not properly the subject of a fraud in the inducement type claim is sales talk or opinion. Such sales talk (for example claiming that your company is the best for the job) is not the subject of a fraud claim because it is not meant to be relied upon and that such talk is an opinion about future performance, not a false statement of present fact or intent. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Forethought Is Key to Overcoming Construction Calamities

February 10, 2020 — Mitch Cohen - Construction Executive
Without warning, an under-construction structure in the southern United States suffered a catastrophic collapse. The tragedy resulted in the death of several people. As a result, engineering and construction post-collapse forensics experts engaged in an 18-month investigation. Those involved in the design and build project included the general contractor hired by the owner, a prime engineer, a consulting peer-review engineer and a prime structural design firm supported by a sub-consulting structural engineer. Although significant cracking was noticed several weeks before the failure, no one sounded the alarm or deemed the cracking worthy of corrective action. In their findings, forensic experts found the collapse resulted from the combined failure of the general contractor, engineers and even the owner, who all failed to shut down the work once the cracking reached unacceptable levels and/or take the appropriate actions needed to secure the public safety and mitigate the risk. This was even after the general contractor requested that the engineer-of-record and design manager assess the structure’s extreme cracking. Consequently, the choice to not seriously investigate the crack or seek an independent peer review to design a rectification plan contributed directly to the tragedy. This is typically referred to within the industry as a “negligent professional design error.” Reprinted courtesy of Mitch Cohen, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Cohen may be contacted at mitch.cohen@rtspecialty.com

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Pennsylvania Supreme Court: Fair Share Act Does Not Preempt Common Law When Apportioning Liability

March 09, 2020 — Mark T. Caloyer & Joelle Nelson - Lewis Brisbois Newsroom
On February 19, 2020, the Pennsylvania Supreme Court issued a long awaited opinion in the matter of Roverano v. John Crane, Inc., No. 26 EAP 2018, No. 27 EAP 2018 (Pa. 2020). The Court’s opinion is a must-read for anyone involved in asbestos litigation in Pennsylvania. In Roverano, the Court ruled that Pennsylvania’s Fair Share Act (42 Pa.C.S. § 7102) does not preempt Pennsylvania common law favoring per capita apportionment of liability to strict liability defendants. In addition, the Court ruled that bankruptcy trusts, that are either joined as third-party defendants or that have entered into a release with the plaintiff, may be included on the verdict sheet for purposes of liability. In this case, Mr. Roverano sued 30 defendants in strict liability and Defendant Crane filed a joinder complaint against Johns-Manville Personal Injury Trust. The case proceeded to trial against eight defendants in the Court of Common Pleas of Philadelphia County. At trial, some of the defendants filed motions in limine seeking a ruling that the Fair Share Act applied to asbestos cases. The trial court denied the motion, concluding that asbestos exposure cannot be quantified, and held that that it would apportion liability on a per capita basis consistent with the Court’s opinion in Baker v. AC&S, 755 A.2d 664 (Pa. 2000). Reprinted courtesy of Mark T. Caloyer, Lewis Brisbois and Joelle Nelson, Lewis Brisbois Mr. Caloyer may be contacted at Mark.Caloyer@lewisbrisbois.com Ms. Nelson may be contacted at Joelle.Nelson@lewisbrisbois.com Read the court decision
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Serial ADA Lawsuits Targeting Small Business Owners

February 04, 2014 — Beverley BevenFlorez-CDJ STAFF
Jennifer Wadsworth reports in the San Jose Inside that small business owners in the South Bay area of California have been targeted for ADA Compliance lawsuits. Specifically, John Ho, “a wheelchair-bound paraplegic from the Southern California town of Rosemead” has hit close to “80 businesses in San Jose and more throughout South Bay” with ADA complaints. Another resident, Cecil Shaw has also “filed hundreds of lawsuits in federal court through a San Jose-based law firm alleging similar violations.” According to Wadsworth, these lawsuits have “become a multimillion-dollar industry.” Communities are often hit with “a hundred or more” lawsuits at a time: “Law firms team up with disabled clients to inspect businesses for compliance issues, and then sue in droves, expecting half or more defendants to settle out of court.” Niccandro Barrita, owner of one of four La Victoria Mexican Restaurants in South Bay, lost an ADA lawsuit. “I thought because when the building was remodeled in 1996 and the city waived the lift requirement that I was in the clear. But that wasn’t the case,” he told San Jose Inside. Barrita claims to have paid $900,000 in attorney fees. His advice to other owners is to be proactive: “Don’t rely on someone to point out a deficiency to you. Find out for yourself if you’re compliant.” Read the court decision
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Affirmed: Insureds Bear the Burden of Allocating Covered Versus Uncovered Losses

September 28, 2017 — C. Lily Schurra & K. Alexandra Byrd – Saxe Doernberger & Vita, P.C.
The Second Circuit recently affirmed a district court decision that an insured bears the burden of establishing what portion of a jury verdict constitutes covered damages1. The case arose out of claims for property damage resulting from construction defects in a homebuilding project. The homeowners fired the construction manager, J. Barrows, Inc. (“JBI”), who then sued the homeowners in state court for unpaid fees (the “Underlying Action”). The homeowners counterclaimed, alleging breach of contract and negligence. JBI’s commercial general liability insurer, Harleysville Worcester Insurance Company (“Harleysville”), agreed to defend JBI under a reservation of rights. Reprinted courtesy of C. Lily Schurra, Saxe Doernberger & Vita, P.C. and K. Alexandra Byrd, Saxe Doernberger & Vita, P.C. Ms. Schurra may be contacted at cls@sdvlaw.com Ms. Byrd may be contacted at kab@sdvlaw.com Read the court decision
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