FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Restaurant Wants SCOTUS to Dust Off Eleventh Circuit’s “Physical Loss” Ruling

February 01, 2021 — Michael S. Levine & Geoffrey B. Fehling - Hunton Insurance Recovery Blog
A South Florida restaurant has asked the US Supreme Court to overturn a federal district court’s ruling that the restaurant is not entitled to coverage under an “all risk” commercial property insurance policy for lost income and extra expenses resulting from nearby road construction. In the underlying coverage action, the policyholder, Mama Jo’s (operating as Berries in the Grove), sought coverage under its all-risk policy for business income losses and expenses caused by construction dust and debris that migrated into the restaurant. Should the Supreme Court grant certiorari, the case will be closely watched by insurers and policyholders alike as an indicator of the scope of coverage available under all-risk policies and whether the principles pertinent to construction dust and debris (at issue in Mama Jo’s claim) have any application to the thousands of pending claims for COVID-19-related business interruption losses pending in the state and federal court systems. As previously discussed on this blog, the Eleventh Circuit’s decision deviates from Florida precedent on the issue of “direct physical loss” and even its own understanding of that term as described in the August 18, 2020 decision now at issue before the Supreme Court. Mama Jo’s points to this in its petition along with several other errors arguing, for example, that the appellate court’s ruling renders entire areas of coverage nonexistent by requiring “tangible destruction” of property under all-risk policies that expressly afford coverage for types of clean-up costs required to remove debris from covered property. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Geoffrey B. Fehling, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Read the court decision
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Leftover Equipment and Materials When a Contractor Is Abruptly Terminated

November 06, 2023 — Brian Perlberg - ConsensusDocs
Termination for cause is costly and adversarial and has been covered in this article. But can a terminating party use equipment and tools left behind on the worksite (i.e., a crane)? The answer depends on what is in your contract. Under ConsensusDocs, a constructor must give its permission to use any equipment or supplies left at the worksite, such as a crane.[i] Moreover, the owner must indemnify the constructor for using their equipment. This makes sense because even if a constructor were appropriately terminated for cause, using their equipment and materials they no longer possess or control unfairly creates additional liability exposure. At a minimum, the owner should take on the risk of using the equipment and materials since they benefit from such use. Read the court decision
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Reprinted courtesy of Brian Perlberg, ConsensusDocs Coalition
Mr. Perlberg may be contacted at bperlberg@ConsensusDocs.org

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Maria Latest Threat to Puerto Rico After $1 Billion Irma Hit

September 20, 2017 — Brian K. Sullivan & Ezra Fieser - Bloomberg
Hurricane Maria was on course to hit Puerto Rico just two weeks after Irma caused as much as $1 billion in damages on the bankrupt island. Maria’s top winds were at 155 miles (250 kilometers) an hour, the National Hurricane Center said in a notice around 6 a.m. New York time. At Category 5, the strongest classification on the five-step Saffir-Simpson scale, Maria was about 35 miles southeast of San Juan in Puerto Rico. Reprinted courtesy of Brian K. Sullivan, Bloomberg and Ezra Fieser, Bloomberg Read the court decision
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Good and Bad News on Construction Employment

February 10, 2012 — CDJ STAFF

The construction industry hit a two-year high in January, with 21,000 jobs added that month. The mild winter is assumed to have helped. According to the General Contractors of America, the construction industry currently employs about 5.57 million people. This is a 21 percent gain over January 2010. Ken Simonson, the chief economist of GCA, noted that “the unemployment rate in construction is still double that of the overall economy.” He said it was not currently clear if “the recent job growth reflects a sustained pickup or merely acceleration of homebuilding and highway projects that normally halt when the ground freezes in December and January.”



Stephen Sandherr, the chief executive officer of the GCA, said that the federal government had to make infrastructure funding a top priority. “Without adequate long-term funding for infrastructure, competitive tax rates and fewer costly regulatory hurdles, the construction industry may lose some of the jobs it gained in the last year.”

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Is There Direct Physical Loss Under A Property Policy When COVID-19 is Present?

April 06, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Most property policies provide coverage for property damage only when there is "direct physical loss" to covered property. Early indications are that COVID-19 remains on surfaces. The duration can last from a few hours to three weeks, depending on the type of surface material. If an employee is infected and the store or restaurant must closed because the virus may rest on surfaces within the building, is there direct physical loss, even though the building structure itself is unharmed? To answer this question, cases from jurisdictions outside Hawaii may provide guidance. In a case from Louisiana, the homeowner had to move out of her home when excessive levels of organic lead were discovered in the kitchen, living room, master bedroom, and attic. Widder v. La. Citizens Prop. Ins. Corp., 82 So. 3d 294 (La. Ct. App. 2011). The insurer denied coverage because there was no direct physical loss. The trial court agreed; since the home was still intact, no direct physical loss had occurred, so there was no coverage under the policy. The appellate court reversed. It compared the presence of inorganic lead in the home to cases that found a direct physical loss from the existence of Chinese drywall, from which gaseous fumes were released, rendering the home unusable or uninhabitable. Physical damage was not necessary. What if smoke from a nearby wildfire fills an outdoor theater, forcing cancellation of performances and loss of business income? This was the situation in Oregon Shakespeare Festival Ass'n v. Great Am. Inc. Co., 2016 U.S. DIst. LEXIS 74450 (D. Ore. Jun 7, 2016). Wildfires in the area caused smoke, soot, and ash to accumulate on the surface of seats and concrete ground of the open-air theater. The air quality was poor, but no federal, state or local agency ordered cancellation of the performances. Further, the theater did not suffer any permanent or structural damage to its property. The insurer denied coverage, contending that the loss or damage must be structural to the building itself. After all, the smoke in the air at the theater did not require any repairs to the structure of the property. The court disagreed. The theater sustained "physical loss or damage to property" when the wildfire smoke infiltrated the theater and rendered it unusable for its intended purpose. The decision in Oregon Shakespeare Festival was eventually vacated by a joint stipulation of the parties. Oregon Shakespeare Festival Ass'n v. Great Am. Ins.Co., 2017 U.S. Dist. LEXIS 33208 (D. Ore. March 6, 2017), but the reasoning is still sound. 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

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White and Williams Earns Tier 1 Rankings from U.S. News "Best Law Firms" 2019

November 14, 2018 — White and Williams LLP
White and Williams has achieved national recognition from U.S. News and World Report as a "Best Law Firm" in the practice areas of Insurance Law, Media Law and Tax Law. Our Boston, New York and Philadelphia offices have also been recognized in their respective metropolitan regions in several practice areas. Firms included in the “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal experience. Read the court decision
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Congratulations 2024 DE, MA, MD, NJ, NY, and PA Super Lawyers and Rising Stars

June 17, 2024 — White and Williams LLP

White and Williams congratulates the fifteen attorneys nominated as Super Lawyers and ten attorneys named Rising Stars across our Delaware, Massachusetts, Maryland, New Jersey, New York and Philadelphia offices. Lawyers are selected through a process that takes into consideration peer recognition and professional achievement. The lawyers named to this year’s list represent a multitude of practices throughout the firm.

 Super Lawyers 2024

Attorney	Super Lawyers Denoted Practice Area (s)
David B. Chaffin	Business Litigation
Robert G. Devine	Personal Injury, Employment Litigation, Products Liability
David D. Gilliss	Surety, Construction Litigation, Administrative Law

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Sales of New U.S. Homes Fell in February to Five-Month Low

March 26, 2014 — Shobhana Chandra – Bloomberg
Purchases of new homes in the U.S. fell in February to the lowest level in five months, a sign the industry may take time to pick up after inclement weather damped demand earlier in the year. Sales declined 3.3 percent to a 440,000 annualized pace, following a 455,000 rate in the prior month that was the strongest in a year, figures from the Commerce Department showed today in Washington. The median forecast of 77 economists surveyed by Bloomberg called for 445,000. Unusually frigid temperatures added to restraints including rising mortgage rates, higher property values, and a lack of supply that kept prospective buyers away from the market for new and existing properties. Bigger gains in employment and consumer sentiment would help spur the recovery in homebuilding, sustaining its contribution to economic growth and boosting earnings at companies such as Lennar Corp. and KB Home. Read the court decision
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Reprinted courtesy of Shobhana Chandra, Bloomberg
Ms. Chandra may be contacted at schandra1@bloomberg.net

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