FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Interpreting Insurance Coverage and Exclusions: When Sudden means Sudden and EIFS means Faulty

June 15, 2020 — Ben Volpe - Colorado Construction Litigation Blog
EIFS, or Exterior Insulation and Finish System, is an integrated exterior insulation and synthetic stucco system, praised for its energy efficiency.[1] However, EIFS has come to be well known in the construction defect world as placing homes at risk due to a lack of a built-in moisture management system. Before long, insurance companies recognized the risk and began explicitly excluding coverage for EIFS-related damage. However, EIFS exclusions have not always been so clearly set forth in some policies, causing insurance coverage litigation. Recently, a Greenwood Village couple, Mark and Susan Mock, lost this fight. Built in 1994, the Mocks’ home was constructed with an EIFS system. The Mocks carried a homeowner’s insurance policy through Allstate, which covered “sudden and accidental loss” to property, but excluded coverage for “planning, construction or maintenance” issues. Such “planning, construction or maintenance” exclusions included “faulty, inadequate or defective designs.” A few months after a hailstorm, the Mocks discovered moisture-related damage to their home’s EIFS system. They reported the damage to Allstate, but Allstate would not cover it, reasoning that the damage to the EIFS system was excluded as a design and/or construction failure, and thus not covered as a “sudden and accidental” loss. The experts who evaluated the damage concluded it was the result of inherent flaws in the EIFS systems common in the 1994 timeframe, which involved long term moisture intrusion behind the cladding and no means for the water to escape. Read the court decision
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Reprinted courtesy of Benjamin Volpe, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Volpe may be contacted at volpe@hhmrlaw.com

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District Court Awards Summary Judgment to Insurance Firm in Framing Case

August 04, 2011 — CDJ STAFF

In the case of Continental Western Insurance Company v. Shay Construction Inc., Judge Walker Miller has granted a summary judgment against Shay Construction and their co-defendant, Milender White Construction Company.



Shay was the framing subcontractor for Milender White on what the court described as “a major construction project in Grand County, Colorado.” Two of Shay’s subcontractors, Wood Source Inc. and Chase Lumber Company furnished materials, labor, and equipment to Shay. They subsequently sued for nonpayment and sought to enforce mechanic’s liens, naming both Shay and Milender as defendants. Milender White alleged that Shay had “breached its obligation under its subcontracts with Milender White.”



Shay’s insurance provider, Continental Western, stated that its coverage did not include “the dispute between Shay, its subcontractors, particularly the cross claims asserted by Milender White.” Shay then sued Continental Western, alleging breach of contract and statutory bad faith.



The court, however, has found with Continental Western and has granted them a summary judgment. They found “no genuine issue as to any material fact.” The judge did not side with Continental Western on their interpretation of the phrase “those sums that the insured becomes legally obligated to pay as damages.” The court found that the Colorado courts have not limited this to tort actions only. However, as Milender’s cross claim included claims of faulty workmanship on the part of Shay, Judge Miller found for Continental.

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Apartment Building Damaged by Cable Installer’s Cherry Picker

November 20, 2013 — CDJ STAFF
The owners of Oceana Apartments are suing Shentel Cable Co. and their subcontractors, CCI Systems, Inc. and Big Dog Communications, over the damage caused when a cherry picker rolled downhill and smacked into the building. Kenneth Benn, an employee of Big Dog Communications, was installing utility wire when the cherry picker started moving. The suit alleges that Mr. Benn either failed to properly apply the brakes or immobilize the vehicle before staring work. Mr. Benn is also named as a defendant in the suit. Read the court decision
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Congratulations to Jonathan Kaplan on his Promotion to Partner!

February 10, 2020 — Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is proud to announce the promotion of Jonathan Kaplan to Partner! Jonathan has been with the firm for nearly eight years out of our Newport Beach office. He focuses his practice on general liability defense and construction litigation matters, in addition to handling high-profile plaintiff defect cases. Jonathan earned his law degree from Chapman University School of Law, obtaining a certificate in Environmental, Real Estate and Land Use Law, and went to undergrad at the University of Washington. Jonathan is an active participant within the firm’s Hiring Committee and assists with legal recruitment at the prominent Orange County law schools. Jonathan is also an avid hiker and has coordinated several hiking events for our Southern California offices. Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

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Owner Bankruptcy: What’s a Contractor to Do?

February 28, 2018 — Troy R. Covington and Stephen M. Parham - Construction Executive Magazine
Bankruptcy of the owner or developer of a real estate construction project can be very unsettling to contractors. But a declaration of bankruptcy by the developer, in and of itself, does not constitute a breach of contract such that the contractor can stop working. Contract provisions providing that the contract is terminated if a party becomes insolvent or files for bankruptcy are generally unenforceable. Partially-performed construction contracts are executory contracts, meaning that the obligations of the parties to the contract have not yet been fully performed. The Bankruptcy Code allows a bankruptcy trustee (in a Chapter 7 dissolution case) or the debtor-in-possession (in a Chapter 11 reorganization case) either to assume or to reject an executory contract. A debtor-in-possession has until the time of the confirmation of its plan of reorganization to decide if it will assume or reject the contract. The contractor may ask the bankruptcy court to require the debtor-in-possession to make a decision on the contract sooner, but the court will most likely give the debtor-in-possession a fair amount of time to make the decision. Reprinted courtesy of Troy R. Covington and Stephen M. Parham, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Covington may be contacted at sparham@bloomparham.com Mr. Parham may be contacted at tcovington@bloom-law.com Read the court decision
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One Word Makes All The Difference – The Distinction Between “Pay If Paid” and “Pay When Paid” Clauses

April 06, 2016 — David A. Harris – Haight Brown & Bonesteel LLP
Payment clauses in California construction contracts are often complex and multi-layered. This is especially true in contracts between general contractors and their subcontractors. The general does not want to pay the subs until it receives funding from the owners. The subs, of course, want their progress and final payments as soon as possible. Up until 1997, two different payment provisions were used in California contracts to manage payments by a general to its subcontractors. The first was called a “pay if paid” clause, and provided a contractor did not have to pay its subcontractors for work performed unless the subcontractor was first paid by the owner of the project. The second was the “pay when paid clause.” It required subcontractors to be paid for their work after the general was paid by the owner, or within “a reasonable time” after the subcontractors finished their work if the owner did not pay the general. Read the court decision
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Reprinted courtesy of David A. Harris, Haight Brown & Bonesteel LLP
Mr. Harris may be contacted at dharris@hbblaw.com

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A Court-Side Seat: Guam’s CERCLA Claim Allowed, a “Roundup” Verdict Upheld, and Judicial Process Privilege Lost

June 14, 2021 — Anthony B. Cavender - Gravel2Gavel
This is a brief account of some of the important environmental and administrative law cases recently decided. THE U.S. SUPREME COURT BP PLC, et al. v Mayor and City of Baltimore The issue the court confronted was a procedural matter: Can the defendant energy companies use the federal removal statutes (see 28 USC Section 1442) to remove a state law climate change lawsuit to federal court? Here, a group of energy companies were sued by the mayor and city council of Baltimore in state court, where they alleged that the defendants had concealed the adverse environmental effects of the fossil fuel products they promoted and sold in Baltimore City. Several similar lawsuits have been filed in many state courts, where typically it is alleged that the defendants can be sued on various common law theories. Rather than defend these cases in state court, the defendants have sought to remove these cases to federal court because climate change liability appears to be an issue that should be settled at the federal level. These efforts have been unsuccessful, with most federal trial and appellate courts holding that the reasons cited for removal (oftentimes the federal officer removal statute) have not been persuasive. In this case, both the Maryland federal district court and the U.S. Court of Appeals held they had no jurisdiction to authorize removal, and thus returned the case to the state court. Noting that the U.S. Court of Appeals for the Seventh Circuit ruled that a removal action could be countenanced under Section 1442, thus creating a circuit split, the Supreme Court held that a straightforward reading of the removal statute empowers the reviewing court to examine all theories for removal that a district court has rejected. Consequently, the Court remanded the case to the Fourth Circuit where it can decide, “in the first instance,” whether there actually exist grounds to remove this case to federal court. 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

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Appraiser Declarations Inadmissible When Offered to Challenge the Merits of an Appraisal Award

March 14, 2018 — Valerie Moore and Christopher Kendrick - Publications & Insights
In Khorsand v. Liberty Mutual Fire Ins. Co. (No. B280273, filed 2/27/18), a California appeals court affirmed an appraisal award favorable to a homeowners insurer, ruling that it was improper to admit as evidence in opposition to a petition to confirm the award a declaration from the policyholders’ appraiser, except for the limited purpose of showing improprieties in the appraisal, bias, partiality or other improper conduct. The homeowners had a pipe leak and submitted a claim. The insurer responded to an estimate from the owners’ adjuster by retaining an expert and paying an undisputed amount that was significantly less. Eleven months later the owners had upper deck damage and submitted another claim. Relying on the same expert, the insurer paid another undisputed amount significantly less than the owner’s estimate. The owners requested appraisal but the insurer denied the request, contending that the dispute was over coverage and outside the scope of appraisal. The owners’ petition for appraisal was granted, with the court ordering separate listing of items the insurer disputed regarding coverage or causation. The appraisal panel issued an award stating that total damage was $132,293, of which $96,530 was contested by the insurer. The insurer filed a petition to confirm the award, which was granted despite the fact that the owners’ appraiser had refused to sign it. Reprinted courtesy of Valerie Moore, Haight Brown & Bonesteel LLP and Christopher Kendrick, Haight Brown & Bonesteel LLP Ms. Moore may be contacted at vmoore@hbblaw.com Mr. Kendrick may be contacted at ckendrick@hbblaw.com Read the court decision
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