Fairfield Connecticut Building Expert Directory

General Liability Alert: A Mixed Cause of Action with Protected and Non-Protected Activity Not Subject to Anti-SLAPP Motion

February 18, 2015 — Valerie A. Moore, Lawrence S. Zucker II and Blythe Golay – Haight Brown & Bonesteel LLP
In Baral v. Schnitt (filed 2/5/2015, No. B253620), the California Court of Appeal, Second Appellate District, held that California’s anti-SLAPP statute does not authorize the striking of allegations of protected activity in a cause of action that also contains meritorious allegations of non-protected activity not within the purview of the statute. In so holding, the court attempted to resolve, or at least add its voice to, the growing conflict among appellate districts on the issue. A SLAPP lawsuit (Strategic Lawsuit Against Public Participation) seeks to chill or punish the exercise of constitutional rights to free speech and to petition the government for redress of grievances. California’s Legislature enacted the anti-SLAPP statute to permit a defendant to file a special motion to strike as to any cause of action that arises out of an act in furtherance of such rights. In Baral, the plaintiff alleged that his business partner had violated fiduciary duties in usurping the plaintiff’s ownership and management interests in their jointly owned company, so that the defendant could benefit from a secret sale of the company. The complaint alleged that the defendant hired a public accounting firm and prevented the plaintiff from participating in its investigation in order to force the plaintiff's cooperation of the sale of the company. The defendant filed an anti-SLAPP motion, seeking to strike all references to the accounting firm's audit. The trial court denied the motion, on the ground that the anti-SLAPP statute applies to causes of action, not allegations. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Valerie A. Moore, Lawrence S. Zucker II and Blythe Golay Ms. Moore may be contacted at vmoore@hbblaw.com. Mr. Zucker may be contacted at lzucker@hbblaw.com. Ms. Golay may be contacted at bgolay@hbblaw.com. Read the court decision
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“A No-Lose Proposition?”

October 07, 2024 — Daniel Lund III - Lexology
A Miller Act payment bond surety and its principal general contractor both sued in federal court in New Orleans by a project subcontractor sought to compel arbitration the claims against both contractor and surety based on an indisputably enforceable arbitration clause in the subcontract. This was urged to avoid separate actions against the contractor (arbitration) and its surety (litigation), even though the surety was not a party to the subcontract and, therefore, not a party to the arbitration clause. In the face of the lack of an express agreement to arbitrate, the contractor and contractor argued that “no federal statute or policy prohibits all of Plaintiff’s claims from proceeding to arbitration….” Additionally, those parties urged that the surety should be allowed to affirmatively compel arbitration because the surety “would otherwise have the ability to assert the right to compel arbitration as a defense….” The New Orleans federal district court was unpersuaded:

“[D]istrict courts within this circuit have recognized that ‘Miller Act claims by a subcontractor for unpaid labor and materials are separate and distinct from those for general breach of contract… [and] arbitration and Miller Act suits, are not, per se, inconsistent with one another.’…[A]bsent express contractual intent to subject Miller Act claims to arbitration, the court [will] not force the parties to arbitrate claims against nonparties to the contract at issue…. [C]laims against a surety, which was a non-signatory to the contract, would not be subject to arbitration without any contractual basis to do so.”

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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

Construction Law Job Opps and How to Create Them

October 24, 2021 — Christopher G. Hill - Construction Law Musings
For this weeks Guest Post Friday, Kirsten Grant (@kgrantcareers on Twitter) has graced us with her thoughts on a very timely topic: How to get a job as a construction attorney. Before becoming a career specialist at Kaplan University, one of the largest online universities in the nation, Kirsten Grant had faxed almost 1000 resumes, e-mailed close to 300 resumes, personally mailed 20 resumes with each one featuring “special inserts” to encourage hiring managers to read her resume (50% of those resumes received calls for an interview) and interviewed with 50 companies over the course of 5 months. Based on the feedback hiring managers provided, in addition to 10 years experience in human resources, training, recruiting and staffing she REALLY learned what hiring managers look for in a candidate and today helps over 40,000 adult learners understand how to conduct successful job searches and earn a promotions. As the real estate industry makes torrid adjustments to right itself due to foreclosures, short sales, and falling house prices, court rooms are seeing more construction law cases. As houses and properties fall into states of disrepair and as efforts are taken to repair them a chain of events take place:

Property is purchased
Contractors are hired to make repairs to a property
The selected contractor files permits for the type of work performed
After work has been performed, contactor receives compensation

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

Greystone on Remand Denies Insurer's Motion for Summary Judgment To Bar Coverage For Construction Defects

June 28, 2013 — Tred Eyerly
A prior post here discussed the Tenth Circuit's decision in Greystone Constr., Inc. v. National Union Fire & Marine Ins. Co., 661 F. 3d 1272 (10th Cir. 2011). The court found a duty to defend construction defect claims where damage caused by the faulty workmanship was unintentional. The Tenth Circuit remanded for a determination on whether any policy exclusions precluded a defense or indemnity for damage arising from faulty workmanship. On remand, the district court denied National Union's Motion for Summary Judgment, seeking to establish the policy exclusions precluded its duty to defend and to indemnify. See Greystone Constr., Inc. v. v. National Union Fire & Marine ins. Co., 2013 U. S. LEXIS 46707 (D. Colo. March 31, 2013). Greystone was sued for construction defects in homes it built. The suit alleged that Greystone failed to recognize defects in the soil where the house was built. National Union refused to defend. The district court initially granted summary judgment to National Union because claims arising from construction defects were not covered. As noted above, the Tenth Circuit vacated because the damage in the underlying suit did not categorically fall outside coverage under the policy. On remand, National Union first argued there was no duty to defend based upon an exclusion precluding coverage for damage arising out of work done by subcontractors unless the subcontractors agreed in writing to defend and indemnify the insured and carried insurance with coverage limits equal to or greater than that carried by the insured. The Tenth Circuit rejected this argument because National Union had to rely on facts outside of the underlying complaint. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

What You Need to Know About Additional Insured Endorsements

August 30, 2017 — Gary Barrera - California Construction Law Blog
A well-drafted insurance clause is an integral part of a construction contract because it sets forth a subcontractor’s obligations to add the general contractor to its policies of insurance as an additional insured and identifies the manner by which the general contractor will qualify as an additional insured. In a typical construction contract, the general contractor will be an additional insured via a scheduled endorsement or a blanket endorsement. Scheduled Endorsements A scheduled endorsement contains a “schedule” in which the person or organization that is named in the schedule is added to the policy as an additional insured. The following scheduled endorsements are commonly used in construction contracts. Read the court decision
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Reprinted courtesy of Gary Barrera, Wendel Rosen Black & Dean LLP
Mr. Barrera may be contacted at gbarrera@wendel.com

Vinci Will Build $580M Calgary Project To Avoid Epic Flood Repeat

June 20, 2022 — Scott Van Voorhis - Engineering News-Record
Vinci Construction has begun work on a giant flood control project in Alberta designed to prevent a repeat of one of the most devastating natural disasters in Canadian history. Reprinted courtesy of Scott Van Voorhis, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Utah’s Highest Court Holds That Plaintiffs Must Properly Commence an Action to Rely on the Relation-Back Doctrine to Overcome the Statute of Repose

August 20, 2018 — Shannon M. Warren - The Subrogation Strategist
Earlier this summer, in Gables & Villas at River Oaks Homeowners Ass’n v. Castlewood Builders LLC, 2018 UT 28, the Supreme Court of Utah addressed the question of whether the plaintiff’s construction defects claims against the general contractor for a construction project were timely-filed, or barred by the statute of repose. In Utah, the statute of repose requires that an action be “commenced within six years of the date of completion.” The plaintiff alleged that its 2014 amended complaint naming the general contractor as a defendant was timely-commenced because, before the date on which Utah’s statute of repose ran, a defendant filed a motion to amend its third-party complaint to name the general contractor as a defendant, and the defendant subsequently assigned its claims to the plaintiff. The plaintiff argued that the filing of its 2014 amended complaint related back[1] to the date of its original complaint. The Supreme Court disagreed, holding that an action is “commenced” by filing a complaint and that a motion for leave to amend does not count as “commencing” an action. Read the court decision
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Reprinted courtesy of Shannon M. Warren, White and Williams LLP
Ms. Warren may be contacted at warrens@whiteandwilliams.com

A Relatively Small Exception to Fraud and Contract Don’t Mix

April 06, 2016 — Christopher G. Hill – Construction Law Musings
Remember all of my posts about how fraud and contract claims don’t usually play well in litigation? Well, as always with the law, there are exceptions. For instance, a well plead Virginia Consumer Protection Act claim will survive a dismissal challenge. A recent opinion out of the Alexandria division of the U. S. District Court for the Eastern District of Virginia sets out another exception, namely so called fraudulent inducement. In XL Specialty Ins. Co. v. Truland et al, the Court considered the question of whether both a tort and contract claim can coexist in the same lawsuit when the tort claim is based upon the information provided to the plaintiff when that information proves false. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Construction Law Musings
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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