Fairfield Connecticut Building Expert Directory

Late Notice Kills Insured's Claim for Damage Due to Hurricane

December 27, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The insurer's motion for summary judgment was granted based upon the insured's late notice nearly two years after a hurricane caused property damage. Ramirez v. Scottsdale Ins. Co., 2021 U.S. Dist. LEXIS 209716 (S.D. Fla. Oct. 29, 2021). Plaintiff alleged he suffered property loss due to wind and water damage from Hurricane Irma on September 10, 2017. The roof, exterior, and interior of the home were damaged. On May 20, 2019, twenty months after the hurricane, plaintiff first notified Scottsdale of his claim for damages. An adjuster inspected and observed wind, wear and tear, and deterioration damage to the roof tile, as well as interior water damage to portions of the home. The claim was denied based upon wind, wear and tear, and deterioration exclusions in the policy. 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

PSA: Pay If Paid Ban Goes into Effect on January 1, 2023

December 05, 2022 — Christopher G. Hill - Construction Law Musings
I have written a couple of times here at Musings regarding the new pay-if-paid legislation passed by the General Assembly last session. While the statute has some inconsistencies and a working group has made some recommendations, the legislation as passed will go into effect on January 1, 2023, without any changes (at least until next session). As always, such action by our legislature here in Virginia will create work for construction attorneys assisting their clients to amend contracts to meet the new rules. Essentially (and with minor inconsistencies between public and private contracts), the bill requires that any construction contract entered into after January 1, 2023 have the following provisions:

On public projects: A payment clause that obligates a contractor on a construction contract to be liable for the entire amount owed to any subcontractor with which it contracts. Such contractor shall not be liable for amounts otherwise reducible due to the subcontractor’s noncompliance with the terms of the contract. However, in the event that the contractor withholds all or a part of the amount promised to the subcontractor under the contract, the contractor shall notify the subcontractor, in writing, of his intention to withhold all or a part of the subcontractor’s payment with the reason for nonpayment.

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

NJ Supreme Court Declines to Review Decision that Exxon Has No Duty to Indemnify Insurers for Environmental Liability Under Prior Settlement Agreement

November 29, 2021 — Patricia B. Santelle & Laura Rossi - White and Williams
On November 1, 2021, in a single-sentence Order, the Supreme Court of New Jersey denied a request for review of a decision that ExxonMobil Corporation (Exxon) did not have to indemnify certain of its insurers over environmental liabilities as required by a previous settlement agreement. The case, entitled Home Insurance Company v. Cornell-Dubilier Electronics Incorporated, et al., has a unique and convoluted procedural history but, in short, the denial of review leaves standing a holding by the intermediate appellate court that the insurers’ “untimely notice actually prejudiced Exxon, violated the no-prejudice rule, and breached the covenant of good faith and fair dealing.” The court declined to consider the question framed by the insurers: whether the importance of enforcing settlement agreements outweighs New Jersey’s entire controversy doctrine. The matter dated back almost thirty years, when the New Jersey Department of Environmental Protection notified the Appearing London Market Insurers (ALMI) of the potential liability of Cornell-Dublier Electronics (CDE), a former indirect subsidiary of Exxon, for pollution at a site in New Jersey. Coverage litigation followed in New Jersey, which ALMI defended under policies issued to CDE. Exxon was not named in the CDE suit nor were the policies which ALMI issued to Exxon at issue in that case; Exxon instead had its own pollution coverage case pending in New York. In June 2000, Exxon and its insurers, including ALMI, entered into a settlement agreement which (a) required Exxon to indemnify the insurers for any environmental liability claims involving its subsidiaries, and (b) provided for application of New York substantive law and litigation in New York City court for any dispute between the parties under it. Reprinted courtesy of Patricia B. Santelle, White and Williams and Laura Rossi, White and Williams Ms. Santelle may be contacted at santellep@whiteandwilliams.com Ms. Rossi may be contacted at rossil@whiteandwilliams.com Read the court decision
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Remediation Work Caused by Installation of Defective Tiles Not Covered

August 19, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The federal district court applied California law to find there was no coverage when the subcontractor was sued for broken tiles on a project. Am. Home Assur. Co. v. SMG Stone Co., 2015 U.S. Dist. LEXIS 75910 (N. D. Cal. June 11, 2015). The subcontractor installed stone floor tiles at the project. The developer discovered fractures in some of the tiles. The fractured tiles were removed and replaced. This remediation process required the removal and replacement of portions of drywall and concrete subfloor installed by other subcontractors. The developer sued the subcontractor, who tendered the defense to its insurer. The insurer denied coverage and filed for a declaratory judgment that there was no coverage for the floor tile fracture claims. 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

Construction Litigation Roundup: “How Bad Is It?”

September 25, 2023 — Daniel Lund III - Lexology
How bad is it? “Not that bad,” said an Illinois federal court to a surety which was complaining that its subcontract performance bond terms had not been satisfied by the obligees on the bonds (the general contractor and the building owner). In response to $3.6 million demand by the obligees on the performance bond, the surety filed an action in federal court in Illinois seeking to have the court declare that the surety had no further obligation on its performance bond. The surety urged that the obligees had not fulfilled the prerequisite requirements in the bond to make a claim on the bond (which, although the court never identified the bond form, was a bond form that closely resembled the AIA A312-2010 performance bond). Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

Insurer's Motion in Limine to Dismiss Case for Lack of Expert Denied

June 26, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The court denied the insurer's motion in limine seeking to dismiss the insureds' complaint due to the absence of expert testimony. Fabozzi v. Lexington Ins. Co., 2014 U.S. Dist. LEXIS 74069 (E.D. N.Y. May 30, 2014). During the policy period, the insureds noticed their house had serious structural problems, including cracks in the walls and floors that were pitched toward the rear of the house. The insureds had to move from their house. When they submitted a claim, it was denied by Lexington because the losses were caused by "wear and tear, deterioration, earth movement, settlement, shrinking, bulging or expansion of the property leading to cracking of structural components." The insureds sued. Lexington filed a motion in limine to preclude the testimony of the insureds' expert and to dismiss the complaint for inability to offer prima facie proof of a covered loss absent such expert testimony. 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

Quick Note: Discretion in Determining Prevailing Party for Purposes of Attorney’s Fees

January 25, 2021 — David Adelstein - Florida Construction Legal Updates
In prior articles I have discussed that courts apply the significant issues test to determine the prevailing party for purposes of being entitled to attorney’s fees. A party that recovers an affirmative judgement is NOT the de facto prevailing party for purposes of an entitlement to attorney’s fees in a breach of contract action (or a construction lien foreclosure action). This was the issue in a recent appeal discussed here where the party that recovered an affirmative judgment on a breach of contract case was not deemed the prevailing party for purposes of attorney’s fees. While the party prevailed on one of its claims, it did not prevail on others, and it recovered less than half of the damages it originally sought. The appellate court, affirming the trial court, held that the trial court has discretion to determine that the party that recovered an affirmative judgement was not the prevailing party entitled to its attorney’s fees under the signifiant issues test. This was not what the party was expecting when the attorney’s fees it expended far exceeded the judgment it recovered. 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

Critical Materials for the Energy Transition: Of “Rare Earths” and Even Rarer Minerals

September 12, 2022 — Robert A. James, Ashleigh Myers, Shellka Arora-Cox & Amanda G. Halter - Gravel2Gavel Construction & Real Estate Law Blog
As the world pursues ambitious net-zero carbon emission goals, demand is soaring for the critical materials required for the technologies leading the energy transition. Lithium may be the most well-known of these inputs due to its usage in batteries for vehicles and consumer electronics, but roughly 50 other minerals are central to energy transition technologies. During the coming years, producers, manufacturers and end-users will be increasingly exposed to the roles played by “rare earth” elements (roughly, atomic numbers 57 to 71), platinum group metals, and other materials. The reasons for this heightened interest are simple—even if the underlying environmental, political and technological forces at play are complex:

Lower-carbon technologies use different materials than carbon-intensive technologies. The mineral requirements of power and mobility systems driven by renewable, nuclear, hydrogen and fusion energy are profoundly different from those forming the backbone of fossil fuel systems. Minerals such as lithium, nickel, copper, cobalt, and rare earth elements are vital for electric vehicles (EVs), batteries, fuel cells, electricity grids, wind turbines, smart devices, and many other essential and proliferating civilian and military technologies. For example, an offshore wind plant needs 13 times more mineral resources than a gas power plant of a similar size.

Reprinted courtesy of Robert A. James, Pillsbury, Ashleigh Myers, Pillsbury, Shellka Arora-Cox, Pillsbury and Amanda G. Halter, Pillsbury Mr. James may be contacted at rob.james@pillsburylaw.com Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com Ms. Arora-Cox may be contacted at shellka.aroracox@pillsburylaw.com Ms. Halter may be contacted at amanda.halter@pillsburylaw.com Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES