FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Property Damage, Occurrences, Delays, Offsets and Fees. California Decision is a Smorgasbord of Construction Insurance Issues

November 15, 2017 — Garret Murai - California Construction Law Blog
I read once that 97 percent of cases never go to trial. However, there are still the ones that do. And, then, there are the ones that do both. The following case, Global Modular, Inc. v. Kadena Pacific, Inc., California Court of Appeals for the Fourth District, Case No. E063551 (September 8, 2017), highlights some of the issues that can arise when portions of cases settle and other portions go to trial, the recovery of delay damages on a construction project through insurance, and the recovery of attorneys’ fees. Global Modular, Inc. v. Kadena Pacific, Inc. The U.S. Department of Veterans Affairs contracted with general contractor Kadena Pacific, Inc. (Kadena) to oversee construction of its Center for Blind Rehabilitation in Menlo Park, California. Kadena, in turn, contracted with subcontractor Global Modular, Inc. (Global) to construct, deliver and install 53 modular units totaling more than 37,000 square feet for a contract price of approximately $3.5 million. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Demonstrating A Fraudulent Inducement Claim Or Defense

May 18, 2020 — David Adelstein - Florida Construction Legal Updates
In a recent case, Florida’s Fourth District Court of Appeal reversed a trial court’s denial of a motion for a temporary injunction sought by an employer due to an independent contractor’s violation of a non-compete and non-solicitation provision in an employment / independent contractor agreement (“employment agreement”). You can find more on this case and the enforcement of the non-compete and non-solicitation clause here. A worthy discussion in this case centers on the independent contractor’s fraudulent inducement defense. Specifically, the independent contractor, as a defense to the injunction, claimed that he was fraudulently induced into entering into the employment agreement because the employer promised he would make a certain amount of money and he would work predominantly in one geographic location. The employment agreement contained NO such representations. Instead, the employment agreement contained a fee and services schedule and the independent contractor would be compensated based on that schedule. It stated nothing as to the independent contractor only having to work, or predominantly working, in one geographic location, or that the independent contractor would be guaranteed “X” amount of money working in that location. Why is this important? 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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Be Strategic When Suing a Manufacturer Under a Warranty with an Arbitration Provision

October 02, 2023 — David Adelstein - Florida Construction Legal Updates
I’ve said this before, and I’ll say it again: arbitration is a creature of contract. If you don’t want to arbitrate, don’t agree to an arbitration provision as the means to resolve your dispute. Now, with that said, there are times you may not have a choice. An arbitration provision in a warranty from a manufacturer of a product is an example. If you are procuring the product, you are agreeing to the terms of the express warranty. Manufacturers are not negotiating their product warranty on a case-by-case basis considering they are not typically the ones selling the product directly to the end user. This does not mean that is a bad thing. It just means if you elect to sue the manufacturer directly for an alleged product defect or under the terms of the warranty, you should read the warranty and consider the strategic aspect that suing the manufacturer will have on your case. In SICIS North America, Inc. v Sadie’s Hideaway, LLC, 48 Fla.L.Weekly D1581c (Fla. 1st DCA 2023), an owner elected to sue a tile manufacturer, a general contractor, the architect, and a window and door company. One of the arguments the owner raised was that exterior tiles installed were defective. The tiles were procured by the general contractor. The owner sued the general contractor under various theories and sued the tile manufacturer for breaches of warranty and negligence. The general contractor asserted a crossclaim for indemnification against the tile manufacturer. The tile manufacturer moved to compel the owner’s claim and the general contractor’s crossclaim to arbitration since there was an arbitration provision in the warranty documents and the general contractor’s indemnification claim arose from that transaction. The trial court denied the motion to compel arbitration. On appeal, the appellate court reversed:

First, because [the owner] was suing [the tile manufacturer] based upon the written warranty, it was bound by the arbitration provision contained in [the general contractor’s] agreement with [the tile manufacturer]. As the Florida Supreme Court has explained, “[W]hen a plaintiff sues under a contract to which the plaintiff is not a party . . . we will ordinarily enforce an arbitration clause contained in that contract, absent some other valid defense. . . .” . [The owner] had no valid defense against arbitration, a fact which it apparently realized when it voluntarily dismissed its express warranty claim after the notice of appeal and initial brief were filed.

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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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Trade Contract Revisions to Address COVID-19

August 23, 2021 — David R. Cook Jr. - Autry, Hall & Cook, LLP
Many trade contracts contain a clause that may protect trade contractors from catastrophic events like pandemics. These clauses are known as force-majeure clauses (covering acts of God). They basically say if these unavoidable events happen, the contractor is relieved of its obligations to the extent of the impact. However, many common industry forms have not been updated to specifically address COVID-19. (They may be waiting to see how the courts treat their existing language first.) So to ensure impacts from COVID-19 are covered, a trade contractor should consider expressly adding it to the force-majeure clause. See the example below. Notably, typical force-majeure clauses do not say the trade contractor gets more money. So an escalation clause could be added to the force-majeure clause. Read the court decision
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Reprinted courtesy of David R. Cook, Autry, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

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Who Would Face Liability For Oroville Dam Management: Brett Moore Authors Law360 Article

February 23, 2017 — Brett G. Moore - Haight Brown & Bonesteel LLP
On February 12, 2017, the Butte County Sheriff ordered the evacuation of more than 180,000 people in the communities surrounding California’s Oroville Dam after officials spotted severe erosion in the dam’s emergency spillway. The Oroville Dam facilities are managed on by the Federal Energy Regulatory Commission, which licenses the project to California’s Department of Water Resources (DWR). In his Law360 article “Who Would Face Liability For Oroville Dam Management,” Attorney Brett Moore discusses the liability of the agencies involved in managing the Oroville facilities should the dam fail again. Read the court decision
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Reprinted courtesy of Brett G. Moore, Haight Brown & Bonesteel LLP
Mr. Moore may be contacted at bmoore@hbblaw.com

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Court Orders City to Pay for Sewer Backups

March 31, 2014 — Beverley BevenFlorez-CDJ STAFF
According to The Courier-Journal, in August of 2009 “raw sewage” backed “up into several houses during a torrential downpour” in Jeffersonville, Indiana. Now, a “Clark County judge has ordered the city of Jeffersonville to pay nearly $100,000 plus 8 percent annual interest for the city's negligence that led to” the incident. The problems allegedly began after a new lift station and force main, which “previously flowed southward to the Ohio River,” was “re-routed it to Springdale.” The city was eventually “cited by the Indiana Department of Environmental Management for failing to obtain a required local permit for the Springdale upgrade.” The Courier-Journal reported that Jeffersonville “agreed to take several steps to remedy the problem for residents and satisfy the state, which ultimately considered the issue resolved in October 2012.” Since the upgrade was completed, there have not been any further sewer backups, according to the city’s utility director, Len Ashack, as quoted by The Courier-Journal. Read the court decision
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Reprinted courtesy of

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Wonder How 2021 May Differ From 2020? Federal Data Privacy May Be Enacted - Be Prepared

February 22, 2021 — Joshua Bevitz - Newmeyer Dillion
State data privacy laws, which are far from uniform, are on the rise. To address that, as well the public’s increasing concern with protecting their private information, it is expected that there will be a serious effort in Congress this year to enact federal data privacy legislation. Here is what you need to know to ensure your business is ready for potential federal regulation. Applicable State Laws As is widely known, some states have recently enacted data privacy legislation to protect consumers. For example, in early 2020, California’s new privacy law, the California Consumer Privacy Act (CCPA), took effect, giving consumers more discretion regarding over how companies share and use their personal information. (For years, California already had in place its Database Security Breach Notification Act.) More recently, California enacted the California Privacy Rights and Enforcement Act (CPRA), which amends and strengthens the CCPA. Other states, such as Maine, Nevada, New York, Oregon, and Washington, have enacted their own data privacy legislation. Read the court decision
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Reprinted courtesy of Joshua Bevitz, Newmeyer Dillion
Mr. Bevitz may be contacted at joshua.bevitz@ndlf.com

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Colorado Court Holds No Coverage for Breach of Contract Claim

March 14, 2018 — Traub Lieberman Straus & Shrewsberry LLP
In its recent decision in Ctr. For Excellence in Higher Ed., Inc. v. Travelers Prop. Cas. Co. of Am., 2018 U.S. Dist. LEXIS 25424 (D. Col. Feb. 16, 2018), the United States District Court for the District of Colorado had occasion to consider whether a breach of contract claim could qualify for coverage under a general liability policy. Read the court decision
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Reprinted courtesy of Traub Lieberman Straus & Shrewsberry LLP

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