FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

I’m Sorry, So Sorry: Legal Implications of Apologies and Admissions of Fault for Delaware Healthcare Professionals

March 12, 2015 — John D. Balaguer and Christine Kane – White and Williams LLP
In July 1960, Brenda Lee had the number one hit song in America. The 15-year-old singer belted her heart out as she expressed her apologies singing: I'm sorry, so sorry That I was such a fool I didn't know Love could be so cruel Oh-oh-oh-oh-oh-oh-oh-yes You tell me mistakes Are part of being young But that don't right The wrong that's been done Views vary about whether a healthcare professional should convey an apology to a patient or patient’s family when treatment does not go as expected. The fear is that these words will be misconstrued as an admission of error that could make a negligence claim more likely, or at least make the claim, if it comes, harder to defend. In Delaware, the law provides some level of protection to such communications, but as a recent case illustrates, that protection is not absolute because the relevant statute makes an important distinction between an expression of apology, sympathy or condolence, and an admission of fault. So, if you are going to apologize, you are well advised to choose your words carefully. Reprinted courtesy of John D. Balaguer, White and Williams LLP and Christine Kane, White and Williams LLP Mr. Balaguer may be contacted at balaguerj@whiteandwilliams.com Ms. Kane may be contacted at kanec@whiteandwilliams.com Read the court decision
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Avoid the Headache – Submit the Sworn Proof of Loss to Property Insurer

September 28, 2020 — David Adelstein - Florida Construction Legal Updates
Property insurance policies (first party insurance policies) contain post-loss obligations that an insured must (and should) comply with otherwise they risk forfeiting insurance coverage. One post-loss obligation is the insurer’s right to request the insured to submit a sworn proof of loss. Not complying with a post-loss obligation such as submitting a sworn proof of loss can lead to unnecessary headaches for the insured. Most of the times the headache can be avoided. Even with a sworn proof of loss, there is a way to disclaim the finality of damages and amounts included by couching information as estimates or by affirming that the final and complete loss is still unknown while you work with an adjuster to quantify the loss. The point is, ignoring the obligation altogether will result in a headache that you will have to deal with down the road because the property insurer will use it against you and is a headache that is easily avoidable. And, it will result in an added burden to you, as the insured, to demonstrate the failure to comply did not actually cause any prejudice to the insurer. By way of example, in Prem v. Universal Property & Casualty Ins. Co., 45 Fla. L. Weekly D2044a (Fla. 3d DCA 2020), the insured notified their property insurer of a plumbing leak in the bathroom. The insurer requested for the insured to submit a sworn proof of loss per the terms of the insured’s property insurance policy. The insurer follow-up with its request for a sworn proof of loss on a few occasions. None was provided and the insured filed a lawsuit without ever furnishing a sworn proof of loss. The insurer moved for summary judgment due the insured’s failure to comply with the post-loss obligations, specifically by not submitting a sworn proof of loss, and the trial court granted the insurer’s motion. Even at the time of the summary judgment hearing, the insured still did not submit a sworn proof of loss. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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“Made in America Week” Highlights Requirements, Opportunities for Contractors and Suppliers

August 14, 2023 — Sarah Barney & Amy Hoang - The Construction Seyt
On July 21, 2023, President Biden designated July 23-29, 2023, as “Made in America Week.” This proclamation builds on the Biden Administration’s efforts to bolster domestic manufacturing through evolving policies attached to government funds that require contractors and suppliers to feature varying amounts of U.S.-made content in their products and services. To commemorate this week, here is a refresher on “Made in America” and what it means for government contractors and suppliers. What does “Made in America” mean? Under Executive Order 14005, the Administration defined “Made in America” laws as “all statutes, regulations, rules, and Executive Orders relating to Federal financial assistance awards or Federal procurement, including those that refer to “Buy America” or “Buy American,” that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured goods offered in the United States.” Generally speaking, “Made in America” or “Buy American” requirements refer to:

1. The Buy American Act (BAA) of 1933, establishing domestic sourcing preferences for unmanufactured and manufactured articles, materials, and supplies procured by the federal government for public use, including those used on federal construction contracts;

Reprinted courtesy of Sarah Barney, Seyfarth and Amy Hoang, Seyfarth Ms. Barney may be contacted at sbarney@seyfarth.com Ms. Hoang may be contacted at ahoang@seyfarth.com Read the court decision
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Texas “your work” exclusion

January 06, 2012 — CDCoverage.com

In American Home Assurance Co. v. Cat Tech, L.L.C., No. 10-20499 (5th Cir. Oct. 5, 2011), claimant Ergon hired insured Cat Tech to perform service on a reactor at Ergon’s refinery. During a start-up of the reactor after Cat Tech had completed its work, the reactor suffered damage. Cat Tech performed additional service and repairs. However, again upon start-up of the reactor, it suffered additional damage. Ergon hired another contractor to repair the reactor. Ergon initiated arbitration proceedings against Cat Tech. Cat Tech’s CGL insurer American Home defended Cat Tech against the Ergon arbitration under a reservation of rights.

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Reprinted courtesy of CDCoverage.com

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NY Construction Safety Firm Falsely Certified Workers, Says Manhattan DA

March 25, 2024 — Johanna Knapschaefer - Engineering News-Record
A New York-based construction safety firm and 25 individuals were indicted Feb. 28 for allegedly operating a bogus safety training school, Manhattan District Attorney Alvin Bragg's office says. The firm, Valor Security & Investigations is also linked to “endangering the life” of Ivan Frias, who fell to his death from the 15th floor of a New York City construction site in 2022. Reprinted courtesy of Johanna Knapschaefer, Engineering News-Record Ms. Knapschaefer may be contacted at knapj@enr.com Read the full story... Read the court decision
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LEED Certified Courthouse Square Negotiating With Insurers, Mulling Over Demolition

June 06, 2011 — Douglas Reiser, Builders Council Blog

Apparently, Courthouse Square is still unresolved. The County hasnow hired an attorney to handle its insurance claim against Affiliated FM. Is there a lawsuit coming?



Right now, no lawsuit is expected. According to officials, the insurer has been acting in good faith. But, its been quite a while since Salem officials learned that the Courthouse Square building had significant concrete issues that would result in probable demolition of the LEED certified building.



If you have yet to hear about Courthouse Square, let me fill you in briefly. The Salem building was substantially completed in 2000 and LEED certified by the US Green Building Council in 2002. The project cost more than $30 Million to complete and the building was revered for its innovation as a crowning achievement for city leaders.



But, structural problems in the building’s core were discovered as early as 2002, writes Chris Cheatham of Green Building Law Update. Final tests earlier in the year, determined that the building had to be vacated. The building has been clear since July 2010.



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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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Eighth Circuit Remands to Determine Applicability of Collapse Exclusion

January 06, 2012 — Tred R. Eyerly - Insurance Law Hawaii

The Eighth Circuit determined a jury instruction regarding the applicability of the "all-risk" policy’s exclusion for "collapse" was inadequate. See KAAPA Ethanol, LLC v. Affiliated FM Ins. Co., 2011 U.S. App. LEXIS 22158 (8th Cir. Nov. 3, 2011).

KAAPA had nine large, cylindrical, stainless steel tanks fabricated at its location. Soon after operations began in 2003, some of the tanks experienced unusual movement and began to shift. A geotechnical engineer found "silty clay" had been used for infill instead of compacted granular fill called for in engineering drawings. A year long plan to repair all nine tanks was implemented.

Affiliated’s "all-risk" policy excluded damage caused by faulty workmanship. It also excluded damage caused by settling or cracking. The settling exclusion went on to provide, "This exclusion will not apply to loss or damage resulting from collapse of: a building or structure; or material part of a building or structure." Affiliated denied coverage because of the faulty workmanship and settling exclusions.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Ready, Fire, Aim: The Importance of Targeting Your Delay Notices

November 08, 2021 — Bradley Sands, Jones Walker LLP - ConsensusDocs
Providing written notice of delay to subcontractors when a project is behind schedule is a regular part of good project documentation practices. A properly targeted delay notice is an important, project correspondence that is an appropriate response to a subcontractor’s specific delay or ongoing delays. However, when a project falls behind schedule and the project management team is in the fog of war, it could seem like a good idea to start firing off project delay notices to any and every subcontractor. While these delay notices may provide a short term burst of productivity, you could find that those same notices are aimed back at you in a future litigation. This article identifies two potential unintended consequences of sending delay notices that a contractor should keep in its sights and then provides recommendations for properly calibrating future delay notices in light of these potential consequences. Acceleration: You Might Get What You Ask For A delay notice to a subcontractor could be interpreted as—or expressly state—direction to the subcontractor to accelerate its work. When a subcontractor is directed to accelerate its work, it may incur additional costs for premium, extended, or overtime labor, additional crews, increased supervision costs, increased overhead costs, and losses due to productivity impacts from the acceleration (e.g., stacking of trades and fatigue). A subcontractor may be entitled to recover these increased costs that are caused by a direction to accelerate. Read the court decision
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Reprinted courtesy of Bradley Sands, Jones Walker LLP
Mr. Sands may be contacted at bsands@joneswalker.com

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