Fairfield Connecticut Building Expert Directory

Excess Must Defend After Primary Improperly Refuses to Do So

August 13, 2014 — Tred R. Eyerly - Insurance Law Hawaii
The excess insurer had a duty to defend after the primary carrier improperly refused its defense obligations. IMG Worldwide, Inc. v. Westchester Fire Ins. Co., 2014 U.S. App. LEXIS 13703 (6th Cir. July 15, 2014). IMG was sued for over $300,000,000 for alleged fraud, conversion, civil theft and violations of the Florida Deceptive and Unfair Trade Practice Act (FDUTPA). The lawsuit stemmed from a real estate development project. The plaintiffs had invested in the project and alleged that the developer had sold them undeveloped properties with the promise they would be developed. IMG was a consultant on the project and also licensed to the developer the use of the IMG name and logo in marketing materials. IMG had no contractual obligation to actually develop the property or finance the project. IMG sought coverage from its primary carrier, Great Divide, and from its excess carrier, Westchester. Both denied coverage and refused to defend. 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

“But it’s 2021!” Service of Motion to Vacate Via Email Found Insufficient by the Eleventh Circuit

June 21, 2021 — Justin K. Fortescue - White and Williams
While we are all getting used to the “new normal” of working remotely and relying on emails for almost all communications, a recent decision from the United States Court of Appeals for the Eleventh Circuit provides arbitration practitioners with a stark reminder – the “notice” requirements of the Federal Arbitration Act (FAA) will be strictly enforced and providing notice of a motion to vacate via email may not qualify as proper service. In O'Neal Constructors, LLC v. DRT Am., LLC, 991 F.3d 1376 (11th Cir. 2021), O’Neal Constructors, LLC (O’Neal) and DRT America (DRT) entered into a contract containing an arbitration provision. Following a dispute, the parties went to arbitration and, on January 7, 2019, the panel issued an award requiring DRT to pay O’Neal a total of $1,415,193. The amount awarded to O’Neal consisted of two parts: $765,102 for the underlying contract dispute and $650,090 for reimbursement of O’Neal’s attorneys’ fees. While DRT paid O’Neal the first portion of the award, DRT refused to pay the portion that related to O’Neal’s attorneys’ fees. On April 4, 2019, as a result of DRT’s refusal to pay O’Neal’s attorneys’ fees, O’Neal filed a motion to confirm the award in Georgia state court (which was subsequently removed to the Northern District of Georgia). The next day, in a separate action, DRT filed a motion to vacate the attorneys’ fees portion of the award and, that same night, DRT’s counsel emailed O’Neal’s counsel a “courtesy copy” of DRT’s memorandum in support of the motion to vacate. A few weeks later, on April 30, 2019 (i.e., more than three months after the award was issued), DRT served O’Neal (via U.S. Marshall) with a copy of the motion to vacate. Read the court decision
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Reprinted courtesy of Justin Fortescue, White and Williams
Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com

Suspend the Work, but Don’t Get Fired

May 20, 2015 — Craig Martin – Construction Contractor Advisor
Getting paid for your work is often times one of the hardest parts of a project. If you find yourself working without getting paid, it’s easy to think, “I’ll just stop working until I get paid.” While the law may support you in that decision, the contract may not and you may be found in breach of the contract if you walk off the job. Nebraska Law Nebraska courts have held that a contractor or subcontractor may stop working on a project if the owner or upstream contractor is in material breach. This, of course, raises the question of “What is a material breach?” The facts of the particular circumstance will control. But, the risk is significant. If the unpaid contractor is wrong, in that the breach is not material, he will face the claim by the upstream party for all costs necessary to finish the contractor’s work. If the upstream party is in material breach, he will face a claim for profit on the remaining portion of the project. 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

"Multiple Claims" Provisions on Contractor's Professional Liability Policy Creates a Trap for Policyholders

May 24, 2021 — Michael V. Pepe - Saxe Doernberger & Vita
In Berkley Assurance Company v. Hunt Construction Group, Inc., 465 F.Supp.3d 370 (S.D.N.Y., 2020), professional liability insurer Berkley sued its insured, Hunt, a construction management firm, seeking a declaration that it did not owe Hunt a duty to defend and indemnify against breach of contract claims. The United States District Court for the Southern District of New York granted Berkley’s motion for summary judgment and denied Hunt’s motion for partial summary judgment. Among other things, the court held that the policy’s automatic extended reporting period did not apply to Hunt’s first claim. The multiple claims provision barred Hunt’s second claim because the claims were related. The court’s holding creates a potential trap for policyholders who wait to see how a claim develops before reporting it to their insurance carrier. This case demonstrates that waiting to see how a claim develops can result in a loss of coverage. Policyholders need to be aware of this trap and report all claims and circumstances immediately. Read the court decision
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Reprinted courtesy of Michael V. Pepe, Saxe Doernberger & Vita
Mr. Pepe may be contacted at MPepe@sdvlaw.com

Review the Terms and Conditions of Purchase Orders- They Could be Important!

February 15, 2018 — Christopher G. Hill – Construction Law Musings
There are many moving parts on a commercial construction project. These range from site surveys to weather events to ordering materials. On most large construction projects, the prime contract and subcontracts are generally drafted ahead of time and hopefully reviewed by both in house personnel and an experienced construction attorney. However, there are situations, particularly where the contract may be one for service or provision of materials where individual purchase orders are issued as opposed to what would likely be looked at as a long form subcontract. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill, PC

Not Everything is a Pollutant: A Summary of Recent Cases Supporting a Common Sense and Narrow Interpretation of the CGL's Pollution Exclusion

October 26, 2020 — Philip B. Wilusz & Jeffrey J. Vita - Saxe Doernberger & Vita
Those of us who suffered through law school are familiar with the argument that there are fundamental rules applicable to contract interpretation and that a certain contract language interpretation would “swallow the rule.” However, insurance companies have long advocated for an interpretation of the CGL policy’s pollution exclusion that would “swallow the coverage” that the insureds thought they were purchasing. Insurers have successfully argued in several states that the pollution exclusion’s definition of “pollutant” should be read literally, and be applied to any “solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste.” As anyone with children can attest to, the range of items and substances that can be considered an “irritant” is limitless. The logical extent of the insurer’s interpretation brings to mind the high school student who, for his science fair project, convinced his fellow students to ban “dihydrogen monoxide.”1 Citing evidence such as the fact that everyone who has ever died was found to have consumed “dihydrogen monoxide,” he convinced them of the dangers of . . . water. Similarly, an overly expansive reading of the definition of “pollutant” could lead to the absurd result of even applying it to ubiquitous harmless substances such as water. The pollution exclusion, therefore, has run amok in many states and has allowed insurers to avoid liability for otherwise covered claims. Fortunately, insureds in many states have successfully argued that the pollution exclusion is subject to a more limited interpretation based on several different theories. For example, some courts have agreed that the pollution exclusion, as initially introduced by the insurance industry, should be limited to instances of traditional environmental pollution. Others have held that the exclusion is ambiguous as to its interpretation. The reasonable expectations of the insureds do not support a broad reading of the defined term “pollutant.” Below, this article addresses a number of recent decisions that have adopted a pro policyholder interpretation of the pollution exclusion. As with most insurance coverage issues, choice of law clearly matters. Reprinted courtesy of Philip B. Wilusz, Saxe Doernberger & Vita and Jeffrey J. Vita, Saxe Doernberger & Vita Mr. Wilusz may be contacted at pbw@sdvlaw.com Mr. Vita may be contacted at jjv@sdvlaw.com Read the court decision
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Reprinted courtesy of

Providing Your Insurer Prompt Notice

May 20, 2024 — David Adelstein - Florida Construction Legal Updates
Sometimes, when it comes to insurance, you may hear the argument that you breached your insurance policy by failing to provide your insurer with prompt notice as the insurance policy requires. Well, this is not such an absolute issue. With that said, you should absolutely provide your insurer with prompt notice of a claim or loss. No legitimate reason not to. But, if you don’t, it is not an absolute get out of jail free card for your insurer, but it does give them a good argument, which you don’t really want to deal with. In Gulfpoint Construction Co., Inc. v. Westfield Ins. Co., 2024 WL 1759228 (11th Cir. 2024), an insured appealed a trial court’s ruling that found it did not provide prompt notice to its property insurer as the policy required. In this case, notice was provided two years after a loss from a hurricane. The insurer denied coverage and, in doing so, relied on the insured’s failure to provide prompt notice. Although the trial court agreed, the appellate court found this was a genuine issue of material fact. 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

New LG Headquarters Project Challenged because of Height

January 24, 2014 — Beverley BevenFlorez-CDJ STAFF
The new LG headquarters project in Englewood Cliffs, New Jersey, has been challenged by various environmental groups because of what the groups see “as a blight on the Hudson River landscape,” according to the New York Times. The problem isn’t the building itself, but the proposed height of the tower: LG “plans to construct eight stories, 143 feet total, in an area previously zoned for a maximum of 35 feet. The height restriction was first lifted through a variance, which has been challenged in State Superior Court in one of two lawsuits filed to protect the view. Subsequently the land was rezoned to allow for a taller building.” Robert F. Kennedy Jr., the Natural Resources Defense Council, and a New Jersey conservation group are continuing to fight against the removal of the height restriction. “This is like if somebody tried to build a high-rise next to Yellowstone,” Mr. Kennedy said in an interview with the New York Times. “It’s a national issue.” However, there is also local support for this project, “which LG has said will be environmentally sensitive and produce jobs,” reported the New York Times. Read the court decision
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Reprinted courtesy of

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