FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Congratulations to Woodland Hills Partner Patrick Au and Senior Associate Ava Vahdat on Their Successful Motion for Summary Judgment!

February 14, 2023 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Congratulations to Woodland Hills Partner Patrick Au and Senior Associate Ava Vahdat on their successful Motion for Summary Judgment in Los Angeles Superior Court! BWB&O’s client was a concrete contractor hired by a government entity for a limited sidewalk repair project many years ago. The Plaintiff, who was confined to a wheelchair, filed suit against BWB&O’s client alleging Negligence and Premises Liability after an alleged fall injury on a public sidewalk. Plaintiff’s primary alleged theory of liability against BWB&O’s client was that it either worked on or was supposed to work on that subject sidewalk and in doing so, or failure to do so, caused Plaintiff’s fall and subsequent alleged injuries/damages. Plaintiff claimed in excess of $1 million in damages. After extensive discovery, Mr. Au and Ms. Vahdat gathered enough evidence to prove that BWB&O’s client neither worked on the subject area nor was required to do so. Accordingly, they prepared a successful Motion for Summary Judgment on the basis that no duty was owed to Plaintiff thereby refuting the negligence cause of action. The dispositive motion also proved that the subject sidewalk was not owned, controlled, or maintained by BWB&O’s client thereby negating the premises liability cause of action. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Supreme Court Finds Insurance Coverage for Intentional (and Despicable) Act of Contractor’s Employee

July 21, 2018 — Garret Murai - California Construction Law Blog
Not to cast shade on your fun in the sun, but here’s an unusual, albeit sad and creepy, one for you. I’m bummed even writing about this one. In Liberty Surplus Insurance Corporation v. Ledesma & Meyer Construction Company, Inc., Case No. S236765 (June 4, 2018), the California Supreme Court addressed whether a general contractor’s commercial general liability carrier was obligated to defend and whether the carrier was liable for damages sustained by a young girl who was molested by an employee of the general contractor during construction at a school. At issue was whether the policy’s definition of an “occurrence,” which was defined, like most policies, as “an accident,” was triggered by the “intentional” and clearly not accidental act of the general contractor’s employee. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Can a Home Builder Disclaim Implied Warranties of Workmanship and Habitability?

August 30, 2021 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog
In a recent Arizona Court of Appeals case, Zambrano v. M & RC II LLC, 2021 WL 3204491 (7/29/2021), the Court of Appeals addressed the question whether a home builder’s attempt to disclaim implied warranties of workmanship and habitability was effective. In that case, the buyer initialed the builder’s prominent disclaimer of all implied warranties, including implied warranties of habitability and workmanship. After the purchase, the buyer sued the builder, claiming construction defects. The builder moved for summary judgment, seeking enforcement of the disclaimer of warranties. The trial court granted the builder’s motion for summary judgment, thereby enforcing the disclaimers. The buyer appealed. The Court of Appeals addressed the question whether – as a matter of public policy – the implied warranties of workmanship and habitability were waivable. The Court of Appeals started the analysis by noting that the Arizona Supreme Court had, in a 1979 case, judicially eliminated the caveat emptor rule for newly built homes. The court further noted the long history of cases detailing the public policy favoring the implied warranties. But the court also noted the competing public policy of allowing parties to freely contract; explaining that the usual and most important function of the courts is to maintain and enforce contracts rather than allowing parties to escape their contractual obligations on the pretext of public policy. Read the court decision
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Reprinted courtesy of Kevin J. Parker, Snell & Wilmer
Mr. Parker may be contacted at kparker@swlaw.com

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Insurer's Bad Faith is Actionable Tort for Purposes of Choice of Law Analysis

January 08, 2024 — Janeen M. Thomas - Saxe Doernberger & Vita, P.C.
When an insurer handles a claim in violation of its duty to act in good faith, policyholders are often eager to sue the insurer for bad faith, seeking extra contractual damages. Before filing suit, however, it is critical that policyholders consider what state’s law applies to the bad faith claim. In the recent case of Scott Fetzer Co. v. Am. Home Assurance Co., Inc.1, the Ohio Supreme Court held that Restatement (Second), Conflict of Laws, § 145 (“Section 145"), governed the choice of law dispute, which meant that the insured would be able to obtain discovery of Travelers’ claims-handling procedures, guidelines, internal documents, and communications relating to the claim.2 The insured, Scott Fetzer, argued that the materials were discoverable because documents evidencing an insurer’s bad faith are not protected by attorney-client privilege in Ohio. In response, Travelers argued that the laws of either Indiana (the place where the parties entered into the insurance contract), or Michigan (the location of the insured risk) governed the discovery dispute because Restatement (Second) § 193 (“Section 193”) governs the choice of law analysis for claims that “arise out of insurance contracts.”3 The laws of either Indiana or Michigan were more favorable for Travelers because Indiana does not allow discovery of materials covered by attorney-client privilege, and Michigan does not even recognize a cause of action for bad faith. Read the court decision
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Reprinted courtesy of Janeen M. Thomas, Saxe Doernberger & Vita, P.C.
Mr. Thomas may be contacted at JThomas@sdvlaw.com

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Need to Cover Yourself for “Crisis” Changes on a Job Site? Try These Tips (guest post)

July 02, 2018 — Melissa Dewey Brumback – Construction Law in North Carolina
Today, we welcome back friend of the blog Christopher G. Hill. Chris is a LEED AP, a Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC. Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals. As construction professionals we’ve all been there. Something happens on a job site that requires immediate attention and possibly a changed sequence of work or possibly a change to a subcontractor’s scope. It could be a buried power line that Miss Utility failed to mark properly or an owner that wants a different HVAC configuration at the last minute. It could also simply be that it rained too much, and work had to slow down. The above examples are instances of items that are beyond the control of the general contractor or the subcontractors and are the type that require shifts in work schedules and changes in scope that must be dealt with on the fly and require quick decisions and immediate action if the project is to meet any time of completion reasonably close to that which is listed in the contract documents. It can often seem that there is no time to meet the written change order provisions of any well drafted construction contract. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett PLLC
Ms. Brumback may be contacted at mbrumback@rl-law.com

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Evergrande’s Condemned Towers on China’s Hawaii Show Threat

January 24, 2022 — Bloomberg News
The wrecking ball headed for 39 apartment blocks on a tropical island at the southern tip of China poses the latest threat for China Evergrande Group as local governments race to reclaim land ahead of a looming restructuring of the embattled developer. The government of Danzhou, a city in the province of Hainan, has asked Evergrande to tear down what it says are illegal buildings within 10 days. The order was signed Dec. 30, meaning the company could start demolition work on the near-complete condos by Jan. 9. Evergrande has appealed the order, according to a media report. The Hainan edict is among the most extreme in a spate of government actions to seize Evergande’s property and land holdings, underscoring risks to its most-prized assets as the firm prepares for what could be the largest restructuring ever in China. In recent months, at least 11 land parcels have been targeted for confiscation by local authorities for reasons ranging from idle projects to missing fee payments. Read the court decision
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Reprinted courtesy of Bloomberg

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California Court of Appeal Adopts Horizontal Exhaustion Rule

June 28, 2013 — Tred Eyerly, Insurance Law Hawaii
In a long running suit regarding thousands of asbestos bodily injury claims brought against Kaiser Cement and Gypsum Corporation, the California appellate court held that the excess carrier's indemnity obligation did not attach until all collectible primary policies were exhausted. Kaiser Cement and Gypsum Corp. v. Ins. Co. of the State of Pennsylvania, 215 Cal. App.4th 210 (Cal. Ct. App. April 8, 2013). Kaiser manufactured a variety of asbestos-containing products from 1944 through the 1970's. Truck Insurance Company provided primary insurance to Kaiser from 1964 to 1983, through four CGL policies covering 19 annual policy periods. The policy in effect from 1974 to 1981 contained a $500,000 "per occurrence" liability limit. Kaiser was insured by three other primary carriers between 1947 and 1987. ICSOP issued a first layer excess policy to Kaiser from 1974 through 1976. Kaiser tendered numerous claims for bodily injury to Truck. By October 2004, Truck's indemnity payments exceeded $50 million and included at least 39 claims that resulted in payments in excess of $500,000. For claims alleging bodily injury in 1974, Kaiser selected Truck's 1974 policy to respond to each of the claims. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

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What If Your CCP 998 Offer is Silent on Costs?

March 18, 2019 — Tony Carucci - Snell & Wilmer Real Estate Litigation Blog
In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party may make a so-called “offer to compromise,” which can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. § 998. The potential payoff of a 998 offer is that “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.” Cal. Code Civ. Proc. § 998(c)(1) (emphasis added). But how do you determine whether a plaintiff obtained a more favorable judgment when the 998 offer is silent with respect to whether it includes costs? In Martinez v. Eatlite One, Inc. (2018) 27 Cal.App.5th 1181, 1182–83, the defendant made a 998 offer of $12,001 that was silent regarding the treatment of attorneys’ fees and costs. Plaintiff did not respond to the offer, and the jury ultimately awarded plaintiff damages of $11,490. Id. In resolving the parties’ competing memoranda of costs and plaintiff’s motion for attorneys’ fees, the trial court awarded plaintiff her costs and attorneys’ fees. Id. at 1182. The trial court reasoned that plaintiff had obtained a more favorable judgment than the 998 offer because she was entitled to pre-offer costs and attorneys’ fees under the statute, which meant plaintiff’s ultimate recovery exceeded the 998 offer when added to the judgment. Id. at 1183. In other words, the court added plaintiff’s pre-offer costs and attorneys’ fees to the $11,490 verdict for the purposes of determining whether the “judgment” was greater than the 998 offer of $12,001. Id. Read the court decision
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Reprinted courtesy of Tony Carucci, Snell & Wilmer
Mr. Carucci may be contacted at acarucci@swlaw.com

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