FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Washington Supreme Court Finds Agent’s Representations in Certificate of Insurance Bind Insurance Company to Additional Insured Coverage

February 03, 2020 — Jason Taylor - Traub Lieberman
In T-Mobile USA Inc. v. Selective Ins. Co. of Am., 450 P.3d 150 (Wash. 2019) the Washington Supreme Court addressed whether an insurance company is bound by its agent’s written representation—made in a certificate of insurance—that a particular corporation is an additional insured under a given policy. The question arose in a case where: (1) the Ninth Circuit had already ruled that the agent acted with apparent authority, but (2) the agent’s representation turned out to be inconsistent with the policy and (3) the certificate of insurance included additional text broadly disclaiming the certificate’s ability to “amend, extend or alter the coverage afforded by” the policy. According to the Court, under Washington law the answer is yes: an insurance company is bound by the representation of its agent in those circumstances. Otherwise, the Court reasoned, an insurance company’s representations would be meaningless and it could mislead without consequence. At the heart of this case were two T-Mobiles entities: T-Mobile USA and T-Mobile Northeast (“T-Mobile NE”), which were distinct legal entities. T-Mobile NE engaged a contractor to construct a cell phone tower on a rooftop in New York City. The contract between T-Mobile NE and the contractor required the contractor to obtain a general liability insurance policy, to annually provide T-Mobile NE “with certificates of insurance evidencing [that policy’s] coverage,” and to name T-Mobile NE as an additional insured under the policy. T-Mobile USA was not a party to the contract, but was nonetheless aware of it and approved the contract as to form. The contractor obtained the required insurance policy from Selective. The policy provided that a third party would automatically become an “additional insured” under the policy if the contractor and the third party entered into their own contract that required the contractor to add the third party to its insurance policy as an additional insured. Because T-Mobile USA did not have a contract with the contractor, it did not automatically become an additional insured under the policy. Nevertheless, over the course of several years, Selective’s agent issued a series of certificates of insurance to “T-Mobile USA Inc., its Subsidiaries and Affiliates” that stated that those entities were “included as an additional insured [under the policy] with respect to” certain areas of coverage. The agent signed those certificates as Selective’s “Authorized Representative.” Read the court decision
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Reprinted courtesy of Jason Taylor, Traub Lieberman
Mr. Taylor may be contacted at jtaylor@tlsslaw.com

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Construction Defect Claims are on the Rise Due to Pandemic-Related Issues

April 25, 2022 — Beverley BevenFlorez – CDJ Staff
According to a recent New York Times article, pandemic-related issues such as “stop-and-start construction, global supply chain issues, pressure from lenders and yo-yoing housing prices” has caused an increase in construction defect suits for new apartment developments: “Complaints and legal claims are already emerging, signaling that a confluence of all factors amid the Covid crisis could continue to be a problem for new construction — from entry-level studios to top-tier penthouses — for years to come, according to lawyers and development consultants.” A Times analysis of Department of Buildings data by Marketproof demonstrated an increase in complaints beginning March 1st, 2020: “During the first year of the pandemic, new residential buildings recorded an average of five complaints per building, a 46 percent jump from the same period the previous year.” Steven D. Sladkus, a partner at Schwartz Sladkus Reich Greenberg Atlas told the Times that his “'phone’s been ringing off the hook' with complaints from homeowners in new condo buildings” regarding “heating problems, poor sound insulation, fire safety issues and faulty elevators.” Developers have faced a variety of pandemic-related challenges including a disrupted supply chain, shut downs, shipping delays, labor shortages, and increased material prices. In 2020, the lack of availability of vaccines caused some construction to halt: “Suddenly one guy calls in sick and the whole crew of electricians can’t show up,” Steven Zirinsky, co-chair of the building codes committee at the New York chapter of the American Institute of Architects told the Times. Read the court decision
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New York’s Highest Court Weighs in on N.Y. Labor Law

September 23, 2024 — Bill Wilson - Construction Law Zone
N.Y. Labor Law § 241(6) requires owners and contractors to provide reasonable and adequate protection and safety to persons employed at or lawfully frequenting a construction site. If a worker is injured on a construction site and establishes a violation of a specific and applicable Industrial Code regulation, both the owner and contractor will be held vicariously liable for the worker’s injury, without regard to their fault and even in the absence of control or supervision of the worksite. The Court of Appeals of New York recently addressed the broad scope of the Labor Law in the context of slipping hazards. In Bazdaric v. Almah Partners, LLC, 41 N.Y.3d 310 (2024), the plaintiff, an injured painter, slipped and fell on a plastic covering placed over an escalator in an area he was assigned to paint. The plaintiff claimed that the plastic covering was a foreign substance for purposes of Industrial Code 12 NYCRR 23-1.7(d) because it was not part of the escalator. Industrial Code 12 NYCRR 23-1.7(d) states:

Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

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Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

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Time to Reform Construction Defect Law in Nevada

February 21, 2013 — CDJ STAFF
The Las Vegas Review-Journal is supporting efforts to reform the state’s construction defect laws. Although the intention was to “protect homeowners from the costs of shoddy workmanship,” they state the laws have instead “enriched lawyers and made housing more expensive.” The take the Las Vegas homeowner association scandal as a sign that reform is needed. A further sign of needed reform is that during a time when new home sales decreased, construction defect claims more than tripled. The editorial notes that “current law allows lawsuits to be brought for cosmetic imperfections that pose no risks.” Read the court decision
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Litigation Roundup: “You Can’t Make Me Pay!”

August 19, 2024 — Daniel Lund III - Lexology
The foregoing is an accurate statement, generally speaking, for Louisiana public entities. Statutory and constitutional provisions in Louisiana protect public entities from being forced to pay monies – including satisfying court judgments – when the monies have not been specifically allocated for the purpose. Correspondingly, there is ordinarily no means to seize public assets to satisfy judgments. On the other hand, writs of mandamus in Louisiana – actions designed to compel a public official to undertake a ministerial duty over which the public official has no discretion – can be aimed at forcing a public official (on behalf of the public entity) to pay money. In an inverse condemnation case, plaintiffs prevailed on the theory that a Louisiana public entity had “damaged and interfered with their use and enjoyment of their private homes and church” during a New Orleans drainage project. The plaintiffs pursued a writ of mandamus to compel payment their approximately $1.5 million judgment for damages and fees as a “ministerial duty” of the public entity. To be sure, in connection with the judgment, the public entity had not at any time specifically allocated funds for the payment. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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Residential Construction Rise Expected to Continue

May 10, 2013 — CDJ STAFF
Housingwire reports that Fannie Mae has predicted strong increases in housing starts over the last few years, with an expected return to normal by 2016. If this holds true, residential construction will include 2.5 million jobs. Read the court decision
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Can a Non-Union Company Be Compelled to Arbitrate?

August 02, 2017 — Wally Zimolong - Supplemental Conditions
Some of the most viewed topics on this blog are those concerning double breasted company. That is a two separate firms, commonly owned, one that is a signatory to a union and the other that is merit shop. An issue frequently encountered with double breasted construction companies is an union arbitrator’s jurisdiction over the non-signatory firm. The issue usually goes something like this. A signatory employer’s collective bargaining agreement contains language prohibiting double breasting (which could be invalid). The collective bargaining agreement also contains an arbitration provision requiring all disputes concerning a breach of the agreement (a grievance) be decided by an arbitrator in private arbitration. The union files a demand for arbitration claiming that the union signatory has breached the collective bargaining agreement’s anti-dual shop provision. The union names the non-union firm as a party to the arbitration based on its status as an alleged “single employer.” Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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California Contractor Tests the Bounds of Job Order Contracting

March 01, 2021 — Garret Murai - California Construction Law Blog
Most contractors have heard of design-bid-build, design-build, construction manager at risk, and even public private partnerships, various project delivery methods, which, at their heart, focus on balancing the interests of the various parties involved in a construction project, from owners, to design professionals, to contractors. There’s one project delivery method you may not be as familiar with though: Job Order Contracting, also known by its acronym JOC. JOC contracting is a project delivery method used on public works projects and has been authorized to be used by California K-12 school districts, community colleges, CalState universities, and the Judicial Council of California, which, among other things, is responsible for the construction of California state courts. It is intended to be used on smaller, independent, long-horizon project typically involving maintenance, repair and refurbishment. Think periodic maintenance of facilities. JOC contracts are administered by public entities issuing a request for proposals. The public entity then awards a JOC contract to the lowest responsible bidder. The lowest responsible bidder then enters into a JOC contract with the public entity. JOC contracts typically have a duration of one (1) year and are limited to a total construction value of $4.9 million increased annually based on the Consumer Price Index. When entering into a JOC contract, a JOC contractor agrees to perform work at prices set forth in a Construction Task Catalog also known as a unit price book which includes current local labor, material and equipment costs. Unit prices are then adjusted by a “bid adjustment factor” based on the JOC contractor’s bid. When work is needed, the public entity will then issue a job order to the JOC contractor. 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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