FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Pre-Judgment Interest Not Awarded Under Flood Policy

January 17, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The court granted the insurer's motion to dismiss state law and extracontractual claims, including pre-judgment interest. Hurley v. Wright Nat'l Flood Ins. Co., 2022 U.S. Distl. LEXIS 203803 (W.D. La. Nov. 8, 2022). The insured suffered damage from Hurricane Delta. He filed suit, alleging that Wright National Flood Insurance Company breached the Standard Flood Insurance Policy (SFIP). The insured sought damages for state law claims for bad faith, diminution in value, actual repair costs, attorney's fees , litigation costs, and interest. Wright moved to dismiss the extracontractual state law causes of action for bad faith and various claims for damages, other than the damages sought for the alleged breach of the SFIP. The court explained that the Write-Your-Own (WYO) Program carriers issuing flood insurance under the National Flood Insurance Program (NFIP) arranged for the adjustment, settlement, payment, and defense of all claims arising from the policy. Congress underwrote all operations of the NIFP, including claims adjustment, through United States Treasury funds. A judgment against a WYO Program carrier constituted a judgment against FEMA, and consequently, a direct charge on the United States Treasury.  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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Insurers Can Sue One Another for Defense Costs on Equitable Indemnity and Equitable Contribution Basis

March 21, 2022 — Garret Murai - California Construction Law Blog
Since I don’t do insurance defense work, fights between insurers isn’t something I have to deal with. It’s good sport nonetheless. In the next case, Travelers v. Navigators Specialty Insurance Company, Case No. D078852 (October 15, 2021), three of the biggies – Travelers, Navigators and Mt. Hawley – got into it over indemnity. The Travelers Case General contractor TF McGukin, Inc. was involved in a construction defect lawsuit with respect to a condominium project. TFM entered into subcontracts with several subcontractors including F&F Steel and Stairway, Inc and Calvac Paving which required the subcontractor to defend and indemnify TFM against any claims arising out of the subcontractor’s work. The subcontracts also required the subcontractors to name TFM as an additional insured. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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A WARNing for Companies

March 13, 2023 — Abby M. Warren & Sapna Jain - Construction Executive
Since last fall, news of layoffs in the technology sector have set off a ripple effect in a variety of other industries. Companies engaging in layoffs must be thoughtful and prepared when it comes to taking such action. While the construction industry generally has one of the highest layoff rates, and human resource personnel may be very knowledgeable with regard to related risks and exposure, there are a number of additional issues to consider when there are mass layoffs or closings. Further, expensive litigation awaits if companies are not meticulous in complying with state and federal laws regarding such large scale reductions in force. Under federal law, the primary legislation governing mass layoffs and closing is the Worker Adjustment and Retraining Notification (“WARN”) Act which generally covers employers with 100 or more employees. This law was enacted to protect employees by requiring companies to provide 60 days’ notice to employees in advance of certain plant closings and mass layoffs. In addition, many states, such as California, Connecticut and New York, have enacted similar state laws, referred to as “mini-WARN” laws, which impose additional requirements, including increasing the length of the required advance notice and broadening the scope of employers to which the law applies. Reprinted courtesy of Abby M. Warren and Sapna Jain, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Sanctions of $1.6 Million Plus Imposed on Contractor for Fabricating Evidence

March 16, 2017 — Paul R. Cressman, Jr.
King County Superior Court issued sanctions of $1,641,721 in favor of Gefco and against Cascade Drilling, Inc. and its President, Bruce Niermeyer, composed of $1,394,435 in attorneys’ fees and $247,286 in expert fees. [i] Cascade Drilling is a contractor. Gefco manufactures and sells large drilling machinery. The dispute centered around a project that began in 2008. Cascade was hired to drill a water well at a housing development in Wheeler Canyon, California. Cascade used a 50K drilling rig purchased from Gefco. The pump drive shafts on the drilling rig failed four times. After each failure, Cascade ordered a replacement pump drive shaft from Gefco. In September 2008, Cascade ordered drilling equipment for an unrelated drilling rig from Gefco, but did not pay Gefco. Gefco then sued to collect. Cascade admitted not paying, but asserted counterclaims alleging that Gefco was indebted to Cascade for non-conforming and defective goods, including the replacement pump drive shafts purchased from Gefco for the Wheeler Canyon project. Read the court decision
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Reprinted courtesy of Paul R. Cressman, Jr., Ahlers & Cressman PLLC
Mr. Cressman may be contacted at pcressman@ah-lawyers.com

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#5 CDJ Topic: David Belasco v. Gary Loren Wells et al. (2015) B254525

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
Chapman Glucksman Dean Roeb & Barger attorneys Richard H. Glucksman, Jon A. Turigliatto, and David A. Napper analyzed the above mentioned Belasco case, in which “the Second District Court of Appeal made clear that settlement agreements containing waviers of unknown claims in connection with a construction of a property, absent fraud or misrepresentation, will be upheld.” Glucksman, et al. explained that “the homeowner plaintiff had made a claim against the builder pursuant to California Code of Civil Procedure Section 896 (“Right to Repair”) and settled for a cash payment and obtained a Release of all Claims including for all known and unknown claims. The court held that homeowner’s subsequent construction defect claim was barred pursuant to the terms and conditions of the earlier release.” Read the full story... In another article on the subject, Edward A. Jaeger, Jr. and William L. Doerler of White and Williams LLP concluded, “The Court of Appeal’s holding establishes that, despite the prohibition against the release of unknown claims set forth in section 1524 and the protections provided to homeowners by the Right to Repair Act, California homeowners can, in fact, release or waive claims against homebuilders for future, latent construction defects. To release or waive such claims, the language of any settlement agreement should be unequivocal.” Read the full story... Read the court decision
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NY Attorney General to Propose Bill Requiring Climate Adaptation for Utilities

May 21, 2014 — Gerald B. Silverman – Bloomberg
Bloomberg BNA — New York Attorney General Eric T. Schneiderman (D) has proposed legislation to require that New York's electricity and gas utilities assess their vulnerability to the impacts of climate change and prepare a plan for adapting to severe weather. Schneiderman May 19 said the proposed legislation would build on a February decision by the state Public Service Commission (PSC), which approved a plan by Consolidated Edison to spend $1 billion over the next four years for storm hardening and resiliency projects. A spokeswoman for the attorney general told Bloomberg BNA that he is working with members of the Legislature to have the bill formally introduced. The PSC decision also required that all New York utilities integrate the potential impacts of climate change into their system planning and construction forecasts and budgets. Read the court decision
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Reprinted courtesy of Gerald B. Silverman, Bloomberg

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Changes to Va. Code Section 43-13: Another Arrow in a Subcontractor’s Quiver

November 02, 2020 — Christopher G. Hill - Construction Law Musings
As is always the case here in Virginia, our General Assembly has made some legislative changes that affect construction contracting. One of these changes is an amendment to Va. Code 43-13 found in the mechanic’s lien section of the Virginia Code. This section of the code has always required that any money paid to a contractor must first go toward paying its subcontractors, suppliers and laborers prior to being used for any other purpose. Prior to 2020, the only remedy for violaiton of Va. Code 43-13 was to go to the local Commonwealth’s Attorney and request a prosecution of the wrongdoer. For various reasons, including that such action did not get the subcontractor or supplier that remained unpaid under this section paid, this remedy was not often pursued except in the most egrigious cases. A key change in the statute occurred during the 2020 legislative session states as follows:

Any breach or violation of this section may give rise to a civil cause of action for a party in contract with the general contractor or subcontractor, as appropriate; however, this right does not affect a contractor’s or subcontractor’s right to withhold payment for failure to properly perform labor or furnish materials on the project. Any contract or subcontract provision that allows a contracting party to withhold funds due under one contract or subcontract for alleged claims or damages due on another contract or subcontract is void as against public policy.

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

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The “Your Work” Exclusion—Is there a Trend against Coverage?

September 10, 2014 — Craig Martin – Construction Contractor Advisor
Two more courts have weighed in on the “your work” exclusion in commercial general liability (CGL) policies, finding that contractors did not have coverage for work performed improperly. These cases highlight that whether you have coverage for poor workmanship will depend on the state’s law applied. It now appears that if you are in South Carolina or Massachusetts, you will not have coverage. The South Carolina case, Precision Walls, Inc. v. Liberty Mutual Fire Insurance Company, involved a subcontractor hired to tape insulation. After taping the insulation, a brick veneer was installed on the exterior. During the brick installation, the mason reported that the tape was losing its adhesion and the subcontractor was instructed to repair the problem. In order to access the tape, portions of the brick veneer had to be removed and re-installed. The subcontractor then sought coverage for the costs associated with repairing the tape. The insurer denied coverage and the subcontractor sued its insurer. The court ruled in favor of the insurer, finding that the defective tape was “your work” because it was “material furnished in connection” with the subcontractor’s work. The policy specifically excluded from coverage damage to property caused by “your work”. Thus, there was no coverage for the subcontractor. 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

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