Fairfield Connecticut Building Expert Directory

Federal Courts Reject Insurers’ Attempts to Recoup Defense Costs Expended Under Reservation of Rights

April 11, 2022 — Anthony L. Miscioscia & Margo Meta - White and Williams
In situations where there is a dispute over a duty to defend, an insurer may provide a defense to its insured, subject to a reservation of rights, to not only deny coverage for a defense, but also to file a declaratory judgment action and recoup defense costs in the event it is determined there is no duty to defend. But are defense costs recoupable? Last week, federal trial courts in Georgia and Pennsylvania answered this question with a resounding “no”. In Chemical Equipment Labs, Inc. v. Travelers Property Casualty Company of America, Case No. 19-3441, 2022 U.S. Dist. LEXIS 61298 (E.D.Pa. Mar. 31, 2022), the United States District Court for the Eastern District of Pennsylvania was called to determine whether Travelers Property Casualty Company of America (Travelers) was entitled to reimbursement of defense costs after it was determined that it had no duty to defend its insured in an arbitration for breach of a charter agreement. The Travelers’ policies did not contain an express reimbursement provision. The court found that Travelers was not entitled to reimbursement because under Pennsylvania law, “[r]eimbursement of defense costs requires an express provision in the written insurance contract.” Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Margo Meta, White and Williams Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Ms. Meta may be contacted at metam@whiteandwilliams.com Read the court decision
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The Partial Building Collapse of the 12-Story Florida Condo

June 28, 2021 — Beverley BevenFlorez – CDJ Staff
On Thursday, the Champlain Towers South Condo building in Surfside, Florida suffered a partial collapse. As of Monday morning, the official death toll stood at 10 with 151 persons unaccounted for, according to the Miami Herald. NPR uncovered minutes from a November 15th, 2018 Chaplain Tower South Condominium Association board meeting where the inspector made assurances that “the building was ‘in very good shape.’” However, “an engineering report from five weeks earlier” alleged “that failed waterproofing in a concrete structural slab needed to be replaced ‘in the near future.’” Daniella Levine Cava, the Miami-Dade County mayor, told reporters that “officials ‘knew nothing’ about the report.” The New York Times on Sunday reported that experts looking at video footage of the incident believe that the cause is centered on a location “in the lowest part of the condominium complex — possibly in or below the underground parking garage — where an initial failure could have set off a structural avalanche.” The cause of the incident remains unclear, however. This “progressive collapse” could have been caused by a number of different factors “including design flaws or the less robust construction allowed under the building codes of four decades ago.” A witness, according to the New York Times, saw a hole appear near the pool: “Michael Stratton said his wife, Cassie Stratton, who is missing, was on the phone with him and was looking out through the window of her fourth-floor unit when, she told him, the hole appeared. After that, the call cut off.” Possible reasons for the “initial failure at the bottom of the building could include a problem with the deep, reinforced concrete pilings on which the building sits — perhaps set off by an unknown void or a sinkhole below — which then compromised the lower columns. Or the steel reinforcing the columns in the parking garage or first few floors could have been so corroded that they somehow gave way on their own. Or the building itself could have been poorly designed, built with substandard concrete or steel — or simply with insufficient steel at critical points.” "It will take many months to complete the analysis necessary to understand the cause or causes of the collapse,” Eric Ruzicka, a partner at the international law firm Dorsey & Whitney and a commercial litigator who specializes in the area of construction and real estate litigation, stated in a media release. “Often, information that comes out early can be very misleading or misunderstood unless the full context of the information is known.” Ruzicka explained that Florida’s statues of limitations and repose may be relevant. “These statutes will likely eliminate the liability of those involved in the original development, design and construction of the building. Rather, victims and their families' recovery will be limited to those involved in the building's maintenance and those assessing the condition of the building over the past four years.” Miami and Sunny Isles Beach have announced they will audit older structures in their communities “ahead of the mandatory 40-year recertification,” the Miami Herald reported. Read the full story (Miami Herald)... Read the full story (NPR)... Read the full story (NY Times)... Read the court decision
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Insurance Coverage Litigation Section to Present at Hawaii State Bar Convention

October 15, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Hawaii State Bar convention will be on October 24, 2014, at the Hawaiian Hilton. The Insurance Coverage Litigation Section will make a presentation from 8:30 a.m. to 11:45 a.m. Three presentations will be made. First, Richard C. Mosher (Anderson Kill), Kathy Dang (Marsh), and Beau Monday (Hawaiian Telcom) will discuss cyber-liability claims and insurance options. Next, David R. Harada-Stone (Tom Petrus & Miller) and I (Damon Key Leong Kupchak Hastert) will address "occurrences," i.e., deciding on and the impact of determining the number of occurrences in particular factual settings. 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

Still Going, After All This Time: the Sacketts, EPA and the Clean Water Act

September 13, 2021 — Anthony B. Cavender - Gravel2Gavel
On August 16, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling that the Idaho property of Michael and Chantell Sackett was a regulated wetlands under the then-controlling 1977 EPA rules defining “waters of the United States,” and that the Sacketts dredging and filling of their property was subject to regulation by the U.S. Army Corps of Engineers or EPA. EPA’s case, as it has been for many years, was based on 2008 EPA and Corps inspection reports and Justice Kennedy’s “significant nexus” test as the controlling opinion in the 2006 Supreme Court case, Rapanos v. United States. The Sacketts’ argument was that the text of the Clean Water Act, as interpreted by Justice Scalia and three other Justices, was controlling, but for several years, the Ninth Circuit has relied on Justice Kennedy’s opinion in these CWA controversies. The court’s opinion expressed considerable sympathy for the Sacketts as they negotiated the thicket of EPA’s regulatory processes, but it could not disregard circuit precedent. A few years ago, the Supreme Court ruled, in a unanimous decision, that EPA’s then extant administrative compliance orders were arbitrary and capricious. (See Sackett v. US, 566 US 120 (2015).) After that decision, the case was remanded to the federal district court, where it lingered for several more years. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Contractor Pleads Guilty to Disadvantaged-Business Fraud

November 17, 2016 — Tom Ichniowski – Engineering News-Record
In the latest development in a federal small disadvantaged-business case, a construction company executive has pleaded guilty to a charge of conspiring to commit wire fraud. Read the court decision
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Reprinted courtesy of Tom Ichniowski, Engineering News-Record
Mr. Ichniowski may be contacted at ichniowskit@enr.com

Parties Can Agree to Anything In A Settlement Agreement………Or Can They?

October 17, 2023 — Alexa Stephenson & Ivette Kincaid - Kahana Feld
A settlement agreement is a contract. When parties to pending litigation enter into a settlement, they enter into a contract. Such a contract is subject to the general law governing all contracts. (T. M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 280 [204 Cal. Rptr. 143, 682 P.2d 338] [offers by a party to compromise under Code Civ. Proc., § 998].) Courts seek to interpret contracts in a manner that will render them “lawful, operative, definite, reasonable, and capable of being carried into effect’” without violating the intent of the parties. (Robbins v. Pacific Eastern Corp. (1937) 8 Cal.2d 241, 272–273; Kaufman v. Goldman, (2011) 195 Cal. App. 4th 734, 745. A settlement agreement like a contract is a document that is typically negotiated between the parties to the agreement and it is up to the parties to determine its terms. Settlements take time and sometimes negotiating the settlement terms takes longer. This is especially true in complex litigation and multiparty matters where negotiating the settlement terms is just as contentious as litigating the matter. Just like contracts, in a settlement agreement the parties cannot agree to terms that violate public policy. A contract is thought to be against public policy if it results in a breach of law, harms citizens, or causes injury to the state. Contracts that are voided on public policy grounds carry no legal obligations. For example, an employer cannot force an employee to sign a contract that forbids the worker from joining a union. Reprinted courtesy of Alexa Stephenson, Kahana Feld and Ivette Kincaid, Kahana Feld Ms. Stephenson may be contacted at astephenson@kahanafeld.com Ms. Kincaid may be contacted at ikincaid@kahanafeld.com Read the court decision
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Notice of Claim Sufficient to Invoke Coverage

August 06, 2014 — Tred R. Eyerly – Insurance Law Hawaii
Indirect notice to the insurer was sufficient to trigger coverage for the additional insured under a liability policy. Spoleta Constr., LLC v. Aspen Ins. UK Ltd., 2014 N.Y. App. Div. LEXIS 5174 (N.Y. App. Div. July 11, 2014). An employee of the subcontractor was injured at the construction project on October 20, 2008. The general contractor was named as an additional insured on the subcontractor's CGL policy with Aspen. Under the subcontract, the subcontractor also agreed to defend and indemnify the general contractor for all claims arising out of the subcontractor's work. The general contractor did not receive notice of the accident until late December 2009 in a letter from the injured employee's attorney. On January 27, 2010, the general contractor's liability carrier sent a letter to the subcontractor giving notice of the employee's claim and requesting that the subcontractor put its carrier on notice. On February 9, 2010, the subcontractor sent to Aspen a claim form with the January 2010 letter attached. 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

Homeowners May Not Need to Pay Lien on Defective Log Cabin

July 01, 2011 — CDJ STAFF

The Idaho Supreme Court has ruled in the case of Perception Construction Management v. Bell. The Bells hired PCM to build a log home, agreeing to play monthly invoices in full within ten days. The Bells paid the first four invoices in full, part of the fifth, and ceased payment after that. Beofre seventh invoice, the Bells terminated the contract and hired a new contractor. PCM filed a claim of lien and ceased work.

The Bells responded that PCM was in breach of contract and had failed to fulfill the contract in a workmanlike manner. They claimed construction defects and in the lien suit, sought to include testimony from an architect and a plumber reviewing PCM’s work. The court only allowed the architect to testify as to whether the amount of the lien was reasonable. No testimony was permitted from the plumber.

The Idaho Supreme Court concluded that the claims of construction defects were important to case and remanded it to the lower court for a new trial taking into evidence that Bell’s contention that PCM’s work was defective.

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