FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

California Supreme Court Adopts “Vertical Exhaustion” in the Long-Storied Montrose Environmental Coverage Litigation

June 08, 2020 — Gregory S. Capps & Michael E. DiFebbo - White and Williams LLP
On April 6, 2020, the California Supreme Court issued a decision that held a policyholder is entitled to access available excess coverage under any excess policy once it has exhausted directly underlying excess policies for the same policy period in Montrose Chemical Corporation v. the Superior Court of Los Angeles County, Supreme Court of California, case number S244737. In its unanimous decision adopting this “vertical exhaustion” requirement, the court rejected the “horizontal exhaustion” rule urged by the policyholder’s excess insurers, under which the policyholder would have been able to access an excess policy only after it had exhausted other policies with lower attachment points from every policy period in which the environmental damage resulting in liability occurred. In 1990, Montrose sought coverage under primary policies and multiple layers of excess policies issued for periods from 1961 through 1985 for environmental damage liabilities arising from its production of insecticide in the Los Angeles area between 1947 and 1982. The ongoing dispute currently arises out of Montrose’s Fifth Amended Complaint which was filed in 2015 seeking declarations concerning exhaustion and the manner in which Montrose may allocate its liabilities across the policies. Each of the excess policies at issue contained a requirement of exhaustion of underlying coverage. The various policies described the applicable underlying coverage in four main ways: (1) some policies contained a schedule of underlying insurance listing all of the underlying policies in the same policy period by insurer name, policy number, and dollar amount; (2) some policies referenced a specific dollar amount of underlying insurance in the same policy period and a schedule of underlying insurance on file with the insurer; (3) some policies referenced a specific dollar amount of underlying insurance in the same policy period and identified one or more of the underlying insurers; and (4) some policies referenced a specific dollar amount of underlying insurance that corresponds with the combined limits of the underlying policies in that policy period. The excess policies also provided, in various ways, that “other insurance” must be exhausted before the excess policy can be accessed. Reprinted courtesy of Gregory S. Capps, White and Williams LLP and Michael E. DiFebbo, White and Williams LLP Mr. Capps may be contacted at cappsg@whiteandwilliams.com Mr. DiFebbo may be contacted at difebbom@whiteandwilliams.com Read the court decision
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Economist Predicts Housing Starts to Rise in 2014

February 12, 2014 — Beverley BevenFlorez-CDJ STAFF
David Crowe, chief economist of the National Association of Home Builders (NAHB), predicts “that single-family home starts in the U.S. could rise more than 30 percent in 2014,” according to Dallas News. “My single-family forecast for 2014 is pretty aggressive — it’s 822,000 starts,” Crowe said to Dallas News. “Which is roughly 200,000 starts more than what we will likely end up with in 2013.” Dallas News also reported specifically on the Texas market. The NAHB forecasts that “by next year, Texas’ housing production will be back to ‘normal’ levels.” However, that is still below “the pre-recession peak” numbers. Read the court decision
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Real Estate & Construction News Roundup (7/31/24) – International Homebuying Shrinks Commercial Real Estate Focus on Sustainability, and U.S. Banks Boost Provisions for Credit Losses

September 09, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, mortgage rates drop to lowest levels since March, hotel construction activity highest since February 2023, Biden administration calls for legislation regarding property owners, and more!

• International buyers bought 54,300 existing homes from April 2023 to March 2024 – a 36% drop from the year before. (Diana Olick, CNBC)
• The Biden administration called on Congress to pass legislation penalizing property owners for rent increases above a certain level as part of its plan to lower housing costs through a series of administrative actions. (Mary Salmonsen, Multifamily Dive)
• U.S. banks have boosted their provisions for credit losses as deteriorating commercial real estate (CRE) loans and high interest rates fuel fears of defaults. (Manya Saini, Niket Nishant and Matt Tracy, Reuters)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Sureties and Bond Producers May Be Liable For a Contractor’s False Claims Action Violation

October 26, 2017 — Michael C. Zisa & Susan Elliot – Peckar & Abramson, P.C.
Two recent decisions from the United States District Court for the District of Columbia and the United States Court of Federal Claims highlight that sureties and bond producers are not immune to the potentially severe consequences of the False Claims Act (“FCA”) and related federal fraud statutes. In each case, the Court determined that sureties and bond producers can face potential liability under these fraud statutes for direct and indirect submission of false claims to the federal government Reprinted courtesy of Michael C. Zisa, Peckar & Abramson, P.C. and Susan Elliott, Peckar & Abramson, P.C. Mr. Zisa may be contacted at mzisa@pecklaw.com Ms. Elliott may be contacted at selliott@pecklaw.com Read the court decision
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Arizona Supreme Court Confirms a Prevailing Homeowner Can Recover Fees on Implied Warranty Claims

August 30, 2017 — Rick Erickson - Snell & Wilmer Real Estate Litigation Blog
On August 9th, in Sirrah Enterprises, L.L.C. v. Wunderlich, the Arizona Supreme Court settled the question about recovery of attorneys’ fees after prevailing on implied warranty claims against a residential contractor. The simple answer is, yes, a homeowner who prevails on the merits can recover the fees they spent to prove that shoddy construction breached the implied warranty of workmanship and habitability. Why? Because, as Justice Timmer articulated, “[t]he implied warranty is a contract term.” Although implied, the warranty is legally part of the written agreement in which “a residential builder warrants that its work is performed in a workmanlike manner and that the structure is habitable.” In other words, a claim based on the implied warranty not only arises out of the contract, the claim is actually based on a contract term. Since, in A.R.S. § 12-341.01, Arizona law provides for prevailing parties to recover their fees on claims “arising out of contract” and because the implied warranty is now viewed by the courts as a contract term, homeowners can recover their fees after successfully proving breach of the implied warranty. Read the court decision
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Reprinted courtesy of Rick Erickson, Snell & Wilmer
Mr Erickson may be contacted at rerickson@swlaw.com

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Are We Headed for a Work Shortage?

June 17, 2015 — Craig Martin – Construction Contractor Advisor
A recent Wall Street Journal article, Worker Shortage Hammers Builders, noted that construction industry employers are facing a tight labor market. “U.S. builders shed more than 2 million jobs during and after the housing bust. Now they say they can’t find enough carpenters, electricians, plumbers and other craftsmen for a growing pipeline of work.” That is certainly consistent with everything that I’ve heard and read about construction companies in the Midwest. Unfortunately, it seems as though the problem is only going to get worse. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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Climate Change a Factor in 'Unprecedented' South Asia Floods

July 18, 2022 — The Associated Press (Aniruddha Ghosal & Al-Emrun Garjon) - Bloomberg
Sylhet, Bangladesh (AP) -- Scientists say climate change is a factor behind the erratic and early rains that triggered unprecedented floods in Bangladesh and northeastern India, killing dozens and making lives miserable for millions of others. Although the region is no stranger to flooding, it typically takes place later in the year when monsoon rains are well underway. This year's torrential rainfall lashed the area as early as March. It may take much longer to determine the extent to which climate change played a role in the floods, but scientists say that it has made the monsoon — a seasonable change in weather usually associated with strong rains — more variable over the past decades. This means that much of the rain expected to fall in a year is arriving in a space of weeks. Read the court decision
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Reprinted courtesy of Bloomberg

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Summary Judgment for Insurer on Construction Defect Claim Reversed

January 07, 2025 — Tred R. Eyerly - Insurance Law Hawaii
The Fifth Circuit reversed the district court's granting of summary judgment to the insurer on a construction defect claim asserted against the insured. TIG Ins. Co. v. Woodsboro Farmers Cooperative, 2024 U.S. App. LEXIS 24003 (5th Cir. Sept. 20, 2024). In March 2013, Woodsboro Farmers Cooperative contracted with E.F. Erwin, Inc. to construct two Brock 105' diameter grain silos. Erwin hired subcontract AJ Constructors, Inc. (AJC) to construct the silos. Erwin was responsible for supervising the work. Brock silos were kits shipped by the manufacturer and then assembled according to the manufacturer's manuals and specifications. The silos are constructed section by section. AJC began erecting the silos in May 2013 and completed its work in June or early July. Erwin occasionally inspected the work and found the silos were structurally sound and not defective. AJC left the job site after completing the assembly. 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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