FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Waiving The Right to Arbitrate Under Federal Law

November 08, 2021 — David Adelstein - Florida Construction Legal Updates
If there is an arbitration provision in your contract that you want to enforce, you do not want to take action inconsistent with those rights as this could give rise to a waiver argument, i.e., that you waived your rights to arbitrate, particularly if the other party has been prejudiced. Under federal policy and law, establishing waiver requires the party arguing waiver to “bear a heavy burden of proof.” U.S. f/u/b/o John Wayne Construction, G.S.A. Division, LLC v. Federal Ins. Co., 2021 WL 4526727 (M.D.Fla. 2021) quoting Stone v. E.F. Hutton & Co., 898 F.2d 1542, 1543 (11th Cir. 1990). “To determine whether the right to arbitrate has been waived, courts apply a two part test: i) whether, “‘under the totality of the circumstances,’ the party ‘has acted inconsistently with the arbitration right’”; and ii) “whether, by doing so, that party ‘has in some way prejudiced the other party.’” Id. quoting Ivax Corp. V. B. Braun of Am., Inc., 286 F.3d 1309, 1315-16 (11th Cir. 2002). Substantial participation in litigation prior to invoking the right to arbitrate supports a party acting inconsistent with the right to arbitrate. Id. And, “‘[p]rejudice has been found in situations where the party seeking arbitration allows the opposing party to undergo the types of litigation expenses that arbitration was designed to alleviate.’” Id. quoting Morewitz v. W. of Eng. Ship Owners Mut. Prot. & Indem. Ass’n (Luxembourg), 62 F.3d 1356, 1366 (11th Cir. 1995). Hence the heavy burden for a party to support to prove waiver– establishing both substantial participation in litigation that is inconsistent with the right to arbitrate AND prejudice. 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

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DC Circuit Approves, with Some Misgivings, FERC’s Approval of the Atlantic Sunrise Natural Gas Pipeline Extension

December 02, 2019 — Anthony B. Cavender - Gravel2Gavel
The U.S. Court of Appeals for the DC Circuit decided the case of Allegheny Defense Project, et al. v. Federal Energy Regulatory Commission on August 2, 2019. In a Per Curiam opinion, the court denied petitions challenging the Commission’s orders permitting the Transcontinental Gas Pipe Line Company’s expansion of an existing natural gas pipeline which extends from northern Pennsylvania across the Carolinas into Alabama. The expansion is called the “Atlantic Sunrise Project.” In February 2017, FERC approved the expansion, and denied various petitions, filed by environmental organizations and affected landowners, who then challenged the decision in the DC Circuit. However, the court concluded, on the basis of the administrative record, that these challenges “cannot surmount the deferential standards of agency review and binding DC Circuit precedent.” Under the law, the Commission must consider whether the projected pipeline project meets a market need, and whether the public benefits outweigh the harms. If both criteria are satisfied, FERC will, as in this instance, issue a certificate authorizing the pipeline’s construction, and that certificate also empowers the certificate holder to exercise eminent domain authority under to the Natural Gas Act when necessary. It was the latter consequence of the FERC’s determinations that caused several Pennsylvania landowners to file their objections with the Commission and seek to stay construction. 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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The Housing Market Is Softening, But Home Depot and Lowe's Are Crushing It

February 26, 2015 — Patrick Clark – Bloomberg
Two monthly reports that track the strength of the U.S. housing market offered dour assessments this week. And yet the companies that sell homeowners appliances, building materials, and power tools are thriving. Home Depot reported strong sales growth yesterday, and Lowe’s did the same today. That follows news that existing home sales dropped 4.9 percent in January, according to the National Association of Realtors, and results from the S&P Case/Shiller index that showed the growth of home prices is slowing in major U.S. cities. Read the court decision
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Reprinted courtesy of Patrick Clark, Bloomberg
Mr. Clark may be contacted at jclark185@bloomberg.net

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SDNY Vacates Arbitration Award for Party-Arbitrator’s Nondisclosures

April 13, 2017 — Justin K. Fortescue & Ciaran B. Way - White and Williams LLP
The US District Court for the Southern District of New York recently vacated an arbitration award finding that a party-appointed arbitrator’s undisclosed relationship with the party appointing him was significant enough to demonstrate evident partiality. Certain Underwriting Members at Lloyd’s of London, et. al. v. Ins. Companies of America, Inc., Nos. 16-cv-232 and 16-cv-374 (S.D.N.Y. March 31, 2017). In the arbitration, the panel was asked to determine whether the reinsurance contracts, covering workers’ compensation policies, only applied when multiple claimants were injured as the result of the same loss occurrence. After a three-day hearing, the arbitration panel issued an award in favor of the ceding company, Insurance Companies of America (ICA). After the award was issued, Lloyd’s discovered that ICA’s arbitrator had significant undisclosed relationships with principals at ICA and moved to vacate the award in federal court. Reprinted courtesy of Justin K. Fortescue, White and Williams LLP and Ciaran B. Way, White and Williams LLP Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com Ms. Way may be contacted at wayc@whiteandwilliams.com Read the court decision
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Construction Defect Journal Seeks Article Submissions Regarding SB800 and Other Builders Right to Repair Laws

October 28, 2011 — CDJ STAFF

As we approach the tenth anniversary of the passage and signing of SB800, California’s right-to-repair law, we’d like to hear your reactions to the law, your experiences with it, and your thoughts on it and right-to-repair laws in other states.

We invite you to submit articles either reacting to SB800 or on other matters relevant to construction defect and claims issues. You can promote your firm’s capabilities and get valuable exposure through the publication of your articles. Construction Defect Journal is widely read by our highly targeted audience of decision makers, construction attorneys, builders, owners, and claims professionals.

Articles may contain relevant images, your firm’s name, and links to your corporate website or third parties and can be submitted through e-mail to submitstory@constructiondefectjournal.com. Please remember to include your contact information if you would like it to be published with your content. If you are submitting photos or PDF documents with your article, please send them as e-mail attachments. Items submitted are assumed to be cleared for publishing upon receipt by CDJ.

Normally articles are published in full, although we reserve the right to edit content for space purposes. All articles submitted are considered for publication. For additional questions please contact editor@constructiondefectjournal.com.

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Illinois Supreme Court Announces Time Standards for Closing Out Cases

April 11, 2022 — Zachary Shelton - Lewis Brisbois
(April 4, 2022) - Beginning July 1, 2022, Illinois trial courts will begin imposing new time standards for closing out pending cases. This change follows the Illinois Supreme Court’s March 25, 2022 announcement setting new time standards for case closure in trial courts. This announcement will apply to all cases filed in the State of Illinois on or after January 1, 2022. According to the recent announcement, the purpose of the new Time Standards Order (the Order) is to assist Illinois circuit courts with “meeting their fundamental obligation to resolve disputes fully, fairly, and promptly” by establishing a uniform, statewide expectation for parties, attorneys, and judges regarding the status of cases that will require each court to evaluate its actual performance compared to a statewide expectation. Read the court decision
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Reprinted courtesy of Zachary Shelton, Lewis Brisbois
Mr. Shelton may be contacted at Zachary.Shelton@lewisbrisbois.com

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Partner Jonathan R. Harwood Obtained Summary Judgment in a Case Involving a Wedding Guest Injured in a Fall

December 30, 2019 — Jonathan R. Harwood - Traub Lieberman Perspectives
On September 30, 2019, Traub Lieberman partner Jonathan Harwood obtained summary judgment in an action involving a guest injured in a fall at a wedding. Traub Lieberman’s client owned the property where the fall occurred. Plaintiff fell while exiting a row of seats after the bridal party had recessed down the aisle. Plaintiff claimed that she tripped over the raised side of a paper runner that had been placed in the aisle at the property. Plaintiff brought an action against Traub Lieberman’s client (the owner of the building) and the florist that had provided the runner. The owner had provided the bridal party with access to the property but did not assist in the set up for the wedding or have any employees present during the ceremony. The florist had supplied the runner for the wedding. The florist commenced a third-party action against the bride, whose wedding party had actually placed the runner in the aisle. Plaintiff asserted that the runner had become bunched and crumpled during the ceremony, creating a dangerous condition. She further asserted that the owner was responsible for her injuries since the dangerous condition existed on its property and it should have an employee present to insure no dangerous conditions existed. During the course of discovery, Mr. Harwood established that no one representing the owner was present during the wedding, had any involvement in the placement of the runner or had received any complaints about the runner. In support of the motion for summary judgment Mr. Harwood introduced pictures showing, in conjunction with deposition testimony, that there were no problems with the runner minutes before plaintiff’s fall. Mr. Harwood also argued that the alleged defect did not involve the property itself, absolving the owner of any obligation to plaintiff. In granting the motion for summary judgment, the court held that evidence and testimony showed that the owner neither created the condition nor had actual or constructive notice that any dangerous condition existed. The court also held that there the owner did not have any duty to have a representative present during the wedding since the property itself was not dangerous or defective. Finally, the court held that the condition of the runner was open and obvious and not inherently dangerous. Read the court decision
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Reprinted courtesy of Jonathan R. Harwood, Traub Lieberman
Mr. Harwood may be contacted at jharwood@tlsslaw.com

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Sometimes you Need to Consider the Coblentz Agreement

January 19, 2017 — David Adelstein – Florida Construction Legal Updates
Since insurance, particularly liability insurance, is such an important component when it comes a construction project, understanding certain nuances such as a Coblentz Agreement (a what kind of agreement agreement?!?—keep reading) becomes helpful. If there is a construction defect claim / lawsuit, the implicated parties (e.g., contractor, design professional, subcontractor, sub-consultants) are going to tender the claim / lawsuit to their respective liability insurer. This is what they should be doing – notifying the insurer so that the insurer can defend them from the claim / lawsuit and indemnify them from covered damages associated with the claim / lawsuit. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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