Fairfield Connecticut Building Expert Directory

Ninth Circuit Construes Known Loss Provision

August 19, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Ninth Circuit reversed the district court's award of summary judgment to the insurer after analyzing the known loss provision in the insured subcontractor's policy. Kaady v. Mid-Continent Cas. Co., 2015 U.S. App. LEXIS 10754 (9th Cir. June 25, 2015). The insured was awarded a subcontract to install manufactured stone at the residential project. The stone was affixed to the wall sheathing. The insured also wrapped deck posts with manufactured stone and installed masonry caps on the toe of the stone that was wrapped around the deck posts. After construction was completed, the insured was called back to the project to inspect cracks in the manufactured stone and masonry caps he installed. The insured told the general contractor that the cracks were likely due to settling. Three months after inspecting the cracks, the insured purchased a CGL policy from Mid-Continent. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Grenfell Fire Probe Faults Construction Industry Practices

November 28, 2022 — Peter Reina - Engineering News-Record
"Incompetence and poor practices in the construction industry" and among others led to the June 2017 fire at London's Grenfell residential high-rise building, causing 72 deaths, according to the lead counsel for the public inquiry that ended Nov. 10. Reprinted courtesy of Peter Reina, Engineering News-Record Mr. Reina may be contacted at reina@btinternet.com Read the full story... Read the court decision
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ZLien Startup has Discovered a Billion in Payments for Clients

March 19, 2014 — Beverley BevenFlorez-CDJ STAFF
The New Orleans startup company zlien “tracks liens for contractors through an online service” and has “secured more than $1 billion in payments for clients on 33,000 construction projects” according to its founder Scott Wolfe, as reported by The Times-Picayune. When Wolfe practiced law, he noticed “an absence of any centralized service to help firms comply with lien procedures.” Wolfe “saw construction companies hiring small operators, in what he called ‘a very manual, service business,’ to track liens in different states, running the process inconsistently or failing to collect on some liens at all.” Wolfe has entered zlien into “New Orleans Entrepreneur Week on March 28 for the Coulter IDEAPitch, a business competition in front of what The Idea Village organizers describe as an invitation-only audience of ‘world-class investors’ focused on ventures with high growth prospects.” Wolfe told The Times-Picayune that “not getting paid is a central problem in construction. That is something that really strains the construction industry." Read the court decision
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Res Judicata Bars Insured from Challenging Insurer's Use of Schedule to Deduct Depreciation from the Loss

June 10, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The insured was barred by res judicata from filing a second lawsuit challenging the insurer's method of establishing the amount of the loss. Burke v. GeoVera Spec. Ins. Co., 2024 U.S. App. LEXIS 9186 (5th Cir, April 16, 2024). On August 29, 2021, Hurricane Ida caused wind damage to the Burkes' home. They filed a claim with their insurer, GeoVera Specialty, and received payment. In calculating the payment, GeoVera Specialty adjusted the damage claim pursuant to its Roof System Payment Schedule, which lists the criteria used in reducing roof damage claims based on depreciation. Based on that schedule, GeoVera Specialty reduced the roof damage component of the Burkes' claim by forty-eight percent. In March 2022, the Burkes filed suit alleging that GeoVera Specialty undervalued their claim. On September 8, 2022, the parties filed a joint motion to dismiss the lawsuit after reaching a settlement, which the district court granted. 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

Measure Of Damages for Breach of Construction Contract

October 18, 2021 — David Adelstein - Florida Construction Legal Updates
How do you determine damages for a breach of a construction contract? If you are interested in pursing a breach of a construction contract action, this is something you NEED TO KNOW! The recent Fourth District Court of Appeal’s decision in Cano, Inc. v. Judet, 46 Fla. L. Weekly D2083b (Fla. 4th DCA 201) explains:

Where a contractor breaches a construction contract, and the owner sues for breach of contract and the cost to complete, the measure of damages is the difference between the contract price and the reasonable cost to perform the contract. See Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037, 1039-40 (Fla. 1982). In Grossman, the supreme court adopted subsection 346(1)(a) of the Restatement (First) of Contracts (1932), which it concluded was “designed to restore the injured party to the condition he would have been in if the contract had been performed.” Id. at 1039. In other words, the owner will obtain the benefit of his bargain [and this is known as benefit of the bargain damages]. But where there is a total breach of the contract as opposed to a partial breach, an injured party may elect to treat the contract as void and seek damages that will restore him to the position that he was in prior to entering into the contract or the party may seek the benefit of his bargain. See McCray v. Murray, 423 So. 2d 559, 561 (Fla. 1st DCA 1982).

In Judet, an owner entered into a fixed price contract with a contractor to repair damage from a lightning strike. The contract amount was $300,000 payable in $30,000 installments. A few months after the contractor commenced performance, the owner terminated the contractor because the owner learned the contractor had not obtained required electrical and plumbing permits. At this time, the owner had paid the contractor $90,000. The contractor recorded a $40,000 lien for an amount it claimed it was owed and filed a lawsuit to foreclose its construction lien. The owner counter-sued the contractor to recover a claimed over-payment and a disgorgement of monies for unpermitted work. The owner was NOT claiming benefit of the bargain damages, but rather, damages for the contractor’s total breach “to restore him to the position that he was in prior to entering into the contract.” 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

When “Substantially Similar” Means “Fundamentally Identical”: Delaware Court Enforces Related Claim Provision to Deny D&O Coverage for Securities Class Action

August 10, 2021 — Geoffrey B. Fehling, Lawrence J. Bracken II & Lorelie S. Masters - Hunton Andrews Kurth
A company faces two class action lawsuits—filed by different plaintiffs, complaining of different allegedly wrongful conduct, asserting different causes of action subject to different burdens of proof, and seeking different relief based on different time periods for the alleged harm. Those facts suggest the suits are not “fundamentally identical,” but that is what a Delaware Superior Court recently concluded in barring coverage for a policyholder seeking to recover for a suit the court deemed “related” to an earlier lawsuit first made outside the policy’s coverage period. First Solar Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., No. N20C-10-156 MMJ CCLD (Del. Super. Ct. June 23, 2021). The decision, which is not on all fours with some of the authority upon which it relies, underscores the inherent unpredictability of “related” claim disputes and need for careful analysis of the policy language against the factual and legal bases of the underlying claims. Underlying Shareholder Class Actions and D&O Claims Shareholders of solar panel manufacturer First Solar sued the company and its directors and officers in a class action lawsuit (the “Smilovits Action”) for the class period April 2008 to February 2012. The Smilovits Action asserted federal securities violations arising from First Solar’s alleged misrepresentations about the company’s business strategies, product design, financial strength, and ability to offer solar electricity at comparable rates to conventional energy producers (i.e., achieving “grid parity”), artificially inflated stock price, insider trading, manipulation of solar power metrics, and violations of GAAP accounting standards. First Solar submitted a claim to its D&O insurer, National Union, which provided coverage for the Smilovits Action and exhausted the policy. Reprinted courtesy of Geoffrey B. Fehling, Hunton Andrews Kurth, Lawrence J. Bracken II, Hunton Andrews Kurth and Lorelie S. Masters, Hunton Andrews Kurth Mr. Fehling may be contacted at gfehling@HuntonAK.com Mr. Bracken may be contacted at lbracken@HuntonAK.com Ms. Masters may be contacted at lmasters@HuntonAK.com Read the court decision
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Congratulations to Partners Nicole Whyte, Keith Bremer, Peter Brown, Karen Baytosh, and Associate Matthew Cox for Their Inclusion in 2022 Best Lawyers!

September 13, 2021 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is proud to announce Partners Nicole Whyte, Keith Bremer, Peter Brown, and Karen Baytosh have been selected by their peers for inclusion in the 2022 Edition of The Best Lawyers in America, and Associate Matthew Cox has been included in the Second Edition of Best Lawyers: Ones to Watch. Each person is being recognized for their diligent work in the areas of Family Law, Construction, Commercial, and Personal Injury Litigation. Best Lawyers is the most respected peer-review publication in the history of the legal profession. Acknowledgment in both The Best Lawyers in America and Best Lawyers: Ones to Watch edition is widely regarded by both clients and legal professionals as a significant honor, bestowed on a lawyer by his or her peers. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Construction of World's Tallest Building to Resume With New $1.9B Contract for Jeddah Tower

October 28, 2024 — James Leggate - Engineering News-Record
Construction of the Jeddah Tower in Jeddah, Saudi Arabia—which is planned to be the world’s tallest building—is set to resume with original contractor Saudi Binladin Group Co. after a years-long pause, owner Jeddah Economic Co.'s parent company, Kingdom Holding Co., announced Oct. 2. 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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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES