Fairfield Connecticut Building Expert Directory

Anti-Concurrent Causation Endorsements in CGL Insurance Policies: A Word of Caution

August 29, 2022 — David M. McLain – Colorado Construction Litigation
While I have not performed exhaustive research into the origin of anti-concurrent causation (“ACC”) endorsements on insurance policies, or how or when they migrated from first-party property policies to commercial general liability (“CGL”) policies, they have done so. The result for Colorado’s construction professionals may rear its ugly head as an unwelcome and surprise outright declination of coverage for construction defect claims. ACC endorsements state that if there are two causes of damage: one of which is covered by a policy and one of which is not, the carrier can invoke the ACC endorsement to disclaim coverage for all of the damage. An exemplar ACC endorsement is ISO Form CG 21 67, entitled “Fungi or Bacteria Exclusion.” Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

California Court Broadly Interprets Insurance Policy’s “Liability Arising Out of” Language

December 20, 2017 — Garret Murai - California Construction Law Blog
In McMillin Mgmt. Servs. v. Financial Pacific Ins. Co., Cal.Ct.App. (4th Dist.), Docket No. D069814 (filed 11/14/17), the California Court of Appeal held that the term “liability arising out of,” as used in an ongoing operations endorsement, does not require that the named insured’s liability arise while it is performing work on a construction project. In the McMillin case, the general contractor and developer (McMillin) contracted with various subcontractors, including a concrete subcontractor and stucco subcontractor insured by Lexington Insurance Company. Both subcontractors performed their work at the project prior to the sale of the units. The Lexington policies contained substantively identical additional insured endorsements that provided coverage to McMillin “for liability arising out of your [the named insured subcontractor’s] ongoing operations performed for [McMillin].” Several homeowners filed suit against McMillin, alleging that they had discovered various defective conditions arising out of the construction of their homes, including defects arising out of the work performed by Lexington’s insureds. Lexington argued that there was no potential for coverage in McMillin’s favor under the endorsements because there were no homeowners during the time that the subcontractors’ operations were performing work at the project (the homes closed escrow after the subcontractors had completed their work); thus, McMillin did not have any liability for property damage that took place while the subcontractors’ operations were ongoing. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rose Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Poor Record Keeping = Going to the Poor House (or, why project documentation matters)

June 11, 2014 — Melissa Dewey Brumback – Construction Law in North Carolina
You are an engineer or architect. You understand the importance of thorough designs. What about thorough documentation of the daily happenings on the construction project? That is equally important. As regular readers of this blog know, I have often spoken of the importance of proper record keeping on construction projects. In fact, lack of good project records is one of the 7 mistakes in my white paper 7 Critical Mistakes that Engineers & Architects make During Project Negotiation and Execution that Sabotage their Projects & Invite Litigation. Now, a construction management expert, who, like me, sees the ugly when construction projects turn bad, has weighed in with perhaps the authoritative reasoning and rationale (pdf) for good project records. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Construction Law in North Carolina
Ms. Brumback may be contacted at mbrumback@rl-law.com

Pensacola Bridge Repair Plan Grows as Inspectors Uncover More Damage

September 28, 2020 — Jim Parsons - Engineering News-Record
With a still-growing list of repairs needed to restore the barge-damaged Pensacola Bay Bridge, the Florida Dept. of Transportation has yet to determine a timeline for completing repairs. But assessments by the agency’s inspectors indicate that impacts from several Skanska-owned construction barges that unmoored during Hurricane Sally not only resulted in five irreparable spans, as previously reported, but at least two more that will require partial replacement. Jim Parsons, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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Reprinted courtesy of

Design, Legal and Accounting all Fight a War on Billable Hours After the Advent of AI

June 10, 2024 — Jeff Yoders - Engineering News-Record
Billable hours have long been the professional services standard by which architects, engineers, lawyers and accountants all get paid. But What if that effort wasn’t from human toil at all? Artificial Intelligence is already chipping away at the venerable billable hours business model, completing in just minutes or seconds tasks that would take humans hours. As these tools grow more efficient and accurate, many firms are having to reevaluate how they allocate their resources, and project delivery practices may have to evolve as well. Reprinted courtesy of Jeff Yoders, Engineering News-Record Mr. Yoders may be contacted at yodersj@enr.com Read the full story... Read the court decision
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Toolbox Talk Series Recap – Considerations for Optimizing Dispute Resolution Clauses

June 05, 2023 — Michael Filbin - The Dispute Resolver
In the April 27, 2023 edition of Division 1's Toolbox Talk Series moderated by Manuel del Valle, Sergio Andre Laclau (Partner at Mello Torres) and Liza Akins (Senior Assistant GC and Division Counsel at ARCO Design/Build) offered the following strategies for drafting effective ADR clauses in construction contracts:

Define the ADR process for various types of disputes.

Not all disputes on a construction project are the same, and the parties can tailor the ADR process to different situations. For example, the parties could choose to arbitrate complex disputes and resolve minor claims through mediation. Differentiating the ADR process between complex and minor disputes can save parties time and money. While Liza prefers arbitration for complex claims because you can get a quick and final decision from an arbitrator experienced with construction disputes, she noted that arbitration costs can add up quickly. Therefore, if the dollar amount in dispute is relatively small, arbitration may not make sense financially. Mediation tends to be a comparatively cheaper and faster option. Read the court decision
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Reprinted courtesy of Michael Filbin, Cozen O'Connor
Mr. Filbin may be contacted at mfilbin@cozen.com

Robinson+Cole’s Amicus Brief Adopted and Cited by Massachusetts’s High Court

July 31, 2024 — Erica Whaley - Construction Law Zone
Earlier this year, the Associated Subcontractors of Massachusetts hired Robinson+Cole attorney Joseph Barra to submit an amicus brief to the Massachusetts Supreme Judicial Court for consideration in the appeal pending before it in Business Interiors Floor Covering Business Trust v. Graycor Construction Co., Inc. In its June 17, 2024 decision in that case, the Court interpreted the Massachusetts Prompt Pay Act, which applies to private construction projects and “requires that parties to a construction contract approve or reject payment within” an allotted time period and in compliance with certain procedures else such payments will be deemed approved. Two years ago, the Massachusetts Appeals Court, in Tocci Building Corp. v. IRIV Partners, LLC, decided that an owner who fails to timely advise its general contractor of the reasons as to why it was withholding payment, coupled with failure to certify that such funds are being withheld in good faith, violates the Prompt Pay Act and makes the owner liable for funds owed.[1] However, the Tocci Building Court left open the question of whether one who violates the Prompt Pay Act forfeits its substantive defenses to non-payment, such as fraud, defective work, or breach of material obligation of the contract. The facts of Business Interiors involve a general contractor, Graycor, which subcontracted Business Interiors to perform certain flooring work for a movie theatre in Boston’s North End. When Graycor failed to formally approve, reject, or certify, in good faith, its withholding of payment of three of Business Interiors’ applications for payment as prescribed by the Prompt Pay Act, Business Interiors brought suit alleging, among other things, breach of contract. Business Interiors then moved for summary judgement arguing that Graycor’s failure to comply with the Act rendered it liable for the unpaid invoices. Read the court decision
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Reprinted courtesy of Robinson + Cole

Bremer Whyte’s Newport Beach Team Prevails on a Motion for Summary Judgment in a Wrongful Death Case!

September 02, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Congratulations on another win to Orange County Partners Jonathan Cothran and Rachel Mihai for prevailing on a Motion for Summary Judgment in a wrongful death case! Plaintiffs filed a wrongful death lawsuit alleging negligence and vicarious liability against BWB&O’s client, a licensed electrical contractor. BWB&O’s client installed a solar system at the Plaintiffs’ home in January 2018. In October 2018, an electrical fire broke out at the home in an upstairs bedroom. Tragically, the family’s father perished in the fire when he entered the home after the fire started. Plaintiffs alleged that BWB&O’s client was liable for the fire and Plaintiffs’ resulting injuries due to its electrical work on the solar system at the home. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES