Fairfield Connecticut Building Expert Directory

Consequential Damages Can Be Recovered Against Insurer In Breach Of Contract

July 22, 2019 — David Adelstein - Florida Construction Legal Updates
In a favorable case for insureds, the Fifth District Court of Appeal maintained that “when an insurer breaches an insurance contract, the insured is entitled to recover more than the pecuniary loss involved in the balance of the payments due under the policy in consequential damages, provided the damages were in contemplation of the parties at the inception of the [insurance] contract.” Manor House, LLC v. Citizens Property Insurance Corp., 44 Fla. L. Weekly D1403b (Fla. 5thDCA 2019) (internal citations and quotation omitted). Thus, consequential damages can be recovered against an insurer in a breach of contract action (e.g., breach of the insurance policy) if the damages can be proven and were in contemplation of the parties at the inception of the insurance contract. In Manor House, the trial court entered summary judgment against the insured holding the insured could not seek lost rental income in its breach of contract action against Citizens Property Insurance because the property insurance policy did not provide coverage for lost rent. However, the Fifth District reversed this ruling because the trial court denied the insured the opportunity to prove whether the parties contemplated that the insured, an apartment complex owner, would suffer lost rental income (consequential damages) if the insurer breached its contractual duties. 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

Determining Occurrence for Injury Under Commercial General Liability Policy Without Applying “Trigger Theory”

July 19, 2021 — David Adelstein - Florida Construction Legal Updates
Oftentimes an occurrence in a commercial general liability policy is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” It is this occurrence that causes the bodily injury or property damage that may be covered by the policy. An interesting non-construction case determined an occurrence under a commercial general liability policy occurred when the negligent act occurred irrespective of the date of discovery or the date the claim was discovered or asserted. See Certain Underwriters at Lloyd’s, London Subscribing to Policy No. J046137 v. Pierson, 46 Fla.L.Weekly D1288c (Fla. 4thDCA 2021). This is interesting because the appellate court did NOT apply a “trigger theory” to first determine the occurrence’s policy period. The appellate court found it did not need to determine which “trigger theory” applied to determine the occurrence for the injury and relied on a cited case: “trigger theories are generally used in the context of deciding when damage occurred ‘in cases involving progressive damages, such as latent defects, toxic spills, and asbestosis’ because the time between the ‘injury-causing event (such as defective construction, a fuel leak, or exposure to asbestos), the injury itself, and the injury’s discovery or manifestation can be so far apart.” Pierson, supra, citing and quoting Spartan Petroleum Co. v. Federated Mut. Ins. Co., 162 F.3d 805, 808 (4th Cir. 1998). 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

Pre-Suit Settlement Offers and Construction Lien Actions

July 21, 2018 — David Adelstein - Florida Construction Legal Updates
It is unfortunate, but in certain matters, a construction lien foreclosure action is not actually driven by the principal amount in dispute. Oh no. Rather, it is driven by attorney’s fees. That’s right. Attorney’s fees. This is true even though Florida applies the significant issues test to determine the prevailing party for purposes of attorney’s fees. However, oftentimes the prospect of attorney’s fees is enough for parties to fear that exposure. There is a 1985 Florida Supreme Court case that I like to cite if applicable, C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So.2d 1177, 1179 (Fla. 1985), that finds, “in order to be a prevailing party entitled to the award of attorney’s fees pursuant to section 713.29 [a construction lien claim], a litigant must have recovered an amount exceeding that which was earlier offered in settlement of the claim.” Accord Sullivan v. Galske, 917 So.2d 412 (Fla. 2d DCA 2006) (explaining that although contractor is receiving a judgment in his favor, he may not be the prevailing party if the homeowner offered to settle prior to the lawsuit for an amount equal to or greater than the award in the judgment). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Disgruntled Online Reviews of Attorney by Disgruntled Former Client Ordered Removed from Yelp.com

June 30, 2016 — Renata L. Hoddinott & David W. Evans – Haight Brown & Bonesteel LLP
The Court of Appeal of the State of California – First Appellate District in Hassell v. Bird (6/7/16 – Case No. A143233) affirmed an order from a judgment in favor of an attorney and her firm and against a disgruntled former client directing non-party Yelp.com to remove defamatory reviews posted to its site. Attorney Dawn Hassell (“Hassell”) filed suit against Ava Bird (“Bird”) arising out of Hassell’s brief legal representation. The attorney/client relationship lasted a total of 25 days after which Hassell withdrew from the representation because of difficulties communicating with Bird and Bird expressed dissatisfaction with Hassell. When legal representation terminated, Bird had 21 months before the expiration of the statute of limitations on her personal injury claim. Reprinted courtesy of Renata L. Hoddinott, Haight Brown & Bonesteel LLP and David W. Evans, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com Ms. Hoddinott may be contacted at rhoddinott@hbblaw.com Read the court decision
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Phoenix Flood Victims Can’t Catch a Break as Storm Nears

September 17, 2014 — Brian K. Sullivan – Bloomberg
A week ago, Hurricane Norbert pumped tropical moisture across the U.S. Southwest, touching off record rainfall in Phoenix and Tucson that killed at least two people, flooded hundreds of homes and shut highways throughout the region. This week, Hurricane Odile moved onto the Baja California peninsula after becoming the strongest system since 1967 to hit that part of Mexico, the U.S. National Hurricane Center said. While it isn’t time to get the rowboat out again for the morning commute, the earth in the desert Southwest doesn’t absorb water very well, the way a Florida swamp or Louisiana bayou might. A lot of rain can be far more unpredictable. Read the court decision
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Reprinted courtesy of Brian K. Sullivan, Bloomberg
Mr. Sullivan may be contacted at bsullivan10@bloomberg.net

Homeowner's Claim for Collapse Survives Summary Judgment

September 20, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The insurer failed to present adequate evidence on summary judgment that damage caused by the collapse of a swimming pool was not covered. Klein v. State Farm Ins. Co., 2017 N.Y. Misc. LEXIS 3030 (Sup. Ct. N.Y. July 11, 2017). Klein notified State Farm that his in-ground pool collapsed on February 5, 2014, with a side wall falling into the pool, causing damage to brick, borders and the patio around the pool. Upon inspection, State Farm's agent found that the cover of the pool had partially fallen into the pool, and that the vinyl pool liner had a tear. State Farm covered the damage to the pool liner, but denied coverage for the in-ground swimming pool walls, the brick border and the patio surrounding the pool. State Farm maintained that the loss was due to a "collapse," which was excluded under the homeowner's policy. 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

New NEPA Rule Restores Added Infrastructure Project Scrutiny

May 10, 2022 — Pam McFarland - Engineering News-Record
The White House Council on Environmental Quality has finalized a regulation that restores basic project environmental review practices that were in place prior to changes made during the Trump administration. The rule is the first of two that will have the Biden administration’s stamp on how such reviews are done under the National Environmental Policy Act (NEPA) for major federal construction projects. Reprinted courtesy of Pam McFarland, Engineering News-Record Ms. McFarland may be contacted at mcfarlandp@enr.com Read the full story... Read the court decision
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Home Prices in 20 U.S. Cities Increased 4.3% in November

January 28, 2015 — Victoria Stilwell – Bloomberg
(Bloomberg) -- Home prices in 20 U.S. cities rose at a slower pace in the year ended in November, a sign the industry struggled to find momentum even amid low mortgage rates. The S&P/Case-Shiller index of property values increased 4.3 percent from November 2013 after rising 4.5 percent in the year ended in October, the group said Tuesday in New York. The median projection of 28 economists surveyed by Bloomberg called for a 4.3 percent year-over-year advance. Nationally, prices rose 4.7 percent after a 4.6 percent gain in the year ended in October. Read the court decision
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Reprinted courtesy of Victoria Stilwell, Bloomberg
Ms. Stilwell may be contacted at vstilwell1@bloomberg.net

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