Fairfield Connecticut Building Expert Directory

Intricacies of Business Interruption Claim Considered

January 07, 2015 — Tred R. Eyerly – Insurance Law Hawaii
Reaching into the weeds to analyze a business interruption claim, the Massachusetts Court of Appeals determined the cost of ordinary payroll could be included in the calculation of net profit or loss in determining business loss income when business is resumed quickly after a fire. Verrill Farms, LLC v. Farm Family Cas. Ins. Co., 2014 Mass. App. LEXIS 145 (Mass. App. Ct. Nov. 4, 2014). The insured suffered a fire loss at its farm store. Within two days, the business was reopened at alternate locations at reduced capacity. Within a month, the business had resumed nearly full capacity in temporary locations. No employees were laid off. This allowed the insured to maintain its business and generate income. The insured submitted a claim for loss of business income, based on its loss of net income in the year after the fire. The insurer paid a sum considerably less than the claim based upon its interpretation of what expenses could be included in a calculation of net profit or loss in order to determine loss of business income. The trial court held that the insurer did not have to pay the cost of ordinary payroll beyond the sixty-day limit, and granted summary judgment in the insurer's favor. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

What I Love and Hate About Updating My Contracts From an Owners’ Perspective

July 25, 2022 — ConsensusDocs
The Construction Owners Association of America (COAA) is the largest association of construction owners in the United States. COAA just held its Spring Connect conference in downtown Baltimore on the University of Maryland, Baltimore (UMB) campus. One session featured “What I Love and Hate About Updating My Contracts from an Owners’ Perspective.” ConsensusDocs’ Executive Director & Senior Counsel Brian Perlberg spoke on a panel with Joe Cleves of Taft Law and Pen Wolf from the Cleveland Clinic. Pen Wolf from Cleveland Clinic outlined the process he used to update his contracts recently. The Cleveland Clinic builds facilities annually and owns different facilities at different locations. The clinic employs over 75,000 employees. For an owner with a broad reach like the Cleveland Clinic, Wolf recommended using outside counsel with construction expertise to update contracts. He concluded that while it was a significant effort, the endeavor to update the Clinic’s contracts was absolutely worth the time commitment and expense. Wolf shared that updating the Clinic’s contracts has generated positive reviews internally and externally. Now their written agreements better reflect their business practices in their construction design and construction program. Read the court decision
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Reprinted courtesy of ConsensusDocs

Insurer Has Duty to Defend Despite Construction Defects

January 06, 2012 — CDJ STAFF

In a case the judge attributed to “shoddy masonry work,” the US District Court of Illinois has rendered a decision in AMCO Insurance Company v. Northern Heritage Builders. Northern Heritage built a home in Chicago for Michael McGrath (who joined Northern Heritage as a defendant). According to the decision, “seven months after he moved into the house, McGrath noticed water coming in the house and warped millwork.” This was attributed to porous block, installed by the mason with Northern Heritage’s knowledge.

McGrath sued National Heritage for both the damage to his house and its contents. The court rejected his claim for the contents. For the damages to his house, he was awarded $601,570.50 in damages. He also sued his homeowner’s insurance carrier for damages not covered in his suit against National Heritage. There he was awarded $1,130,680.16.

AMCO informed National Heritage that it had neither duty to defend nor duty to indemnify. The judge considered whether AMCO had a duty to defend. Under Illinois law, “damage to a construction project resulting from construction defects is not an ‘accident’ or ‘occurrence’ because it represents the natural and ordinary consequence of faulty construction.” However, it is noted that while if the defects lead only to damage to the project itself, there is no occurrence, “if the building owner asserts damages to other property besides the construction itself, there is an ‘occurrence’ and ‘property damage.’” The judge further noted that were construction defects an occurrence, “shoddy work” would be rewarded by double pay, once by the homeowner and a second time by the insurer. Judge Kendall concluded that as McGrath had alleged damage to the contents of his house, AMCO had a duty to defend National Heritage.

She then looked at the issue of whether AMCO had a duty to indemnify. Should they pay the $601,570.50? Judge Kendall noted that “the duty to indemnify is narrower than the duty to defend.” The key point here was that once McGrath’s insurance carrier covered him for the damage to the contents of his house, “AMCO’s duty to defend ended.” Once McGrath “only sought damages for the natural consequences of faulty workmanship” there was no occurrence, hence nothing for AMCO to cover.

Judge Kendall granted a summary dismissal of AMCO’s claim that they had no duty to defend while upholding their claim that they had no duty to indemnify.

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Caterpillar Forecast Tops Estimates as Construction Recovers

January 28, 2014 — Shruti Date Singh – Bloomberg
Caterpillar Inc. (CAT), the largest maker of mining and construction equipment, forecast earnings and revenue for 2014 that topped analysts’ estimates as the recovery in the U.S. building industry spurs sales of bulldozers and excavators. Sales will be about $56 billion plus or minus 5 percent, the company said in a statement today. The average of 13 estimates compiled by Bloomberg was $55.5 billion. Profit will be $5.85 a share excluding $400 million to $500 million in restructuring costs. That’s more than the $5.77 average estimate. Peoria, Illinois-based Caterpillar also said it approved a $10 billion share buyback plan through 2018 and will repurchase about $1.7 billion in stock in the first quarter that will complete its previous authorization. Read the court decision
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Reprinted courtesy of Shruti Date Singh, Bloomberg
Ms. Singh may be contacted at ssingh28@bloomberg.net

A Year-End Review of the Environmental Regulatory Landscape

January 11, 2022 — Anne Idsal Austin & Joel Simon - Gravel2Gavel Construction & Real Estate Law Blog
Our guest today is Anne Idsal Austin, a nationally recognized environmental lawyer who has held several high-profile federal and state regulatory roles. As a partner who recently joined Pillsbury’s environmental and natural resources practice, she provides strategic consulting and policy advice, helping clients navigate the dynamic regulatory and legal waters in an era of energy transition, decarbonization and an emphasis on ESG principles. Prior to joining Pillsbury, Anne was the Principal Deputy Assistant Administrator for the U.S. Environmental Protection Agency’s Office of Air and Radiation, known as OAR or OAR, where she had primary oversight over United States clean air policy and regulation. Prior to that, she served as the EPA regional administrator for Region 6, overseeing all federal environmental programs in Texas, Louisiana, New Mexico, Oklahoma and Arkansas. Prior to joining EPA, Anne held several positions where she shaped environmental and energy policy at the highest levels of government in the state of Texas. Welcome to our podcast, Anne. Anne Austin: Thanks so much. It’s great to be here today, Joel. Joel Simon: Anne, I’m really excited for this chance to speak with you because there’s so much going on at the federal environmental policy level, and it would be great to have someone really knowledgeable present this to us in an organized fashion. So with that minor task ahead of you, could you start us off with a brief overview of the environmental regulatory landscape? Reprinted courtesy of Anne Idsal Austin, Pillsbury and Joel Simon, Pillsbury Ms. Austin may be contacted at anne.austin@pillsburylaw.com Mr. Simon may be contacted at joel.simon@pillsburylaw.com Read the court decision
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Funding the Self-Insured Retention (SIR)

August 17, 2020 — David Adelstein - Florida Construction Legal Updates
Unlike a deductible, a self-insured retention (referred to an “SIR”) is, as the name suggests, a self-insured obligation of the insured before its insurer picks up coverage. The SIR needs to be exhausted by the insured (as the primary self-insurance component) before the carrier’s excess defense and indemnification obligations kick-in under the terms of the policy. However, an insured can generally exhaust an SIR by paying legal fees and costs associated with a claim. Oftentimes, the language in the policy requires the SIR to be paid for by the named insured or an insured under the policy. This was an issue addressed by the Florida Supreme Court in Intervest Const. of Jax, Inc. v. General Fidelity Ins. Co., 133 So.3d 494 (Fla. 2014). In this matter, a personal injury claimant asserted a claim against the contractor dealing with a residential home. The contractor hired a subcontractor to install attic stairs and the subcontract required the contractor to indemnify it. The owner of the house injured herself on the attic stairs and sued the contractor. The contractor, in turn, sought indemnification against the subcontractor that installed the attic stairs. 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

Primer Debuts on Life-Cycle Assessments of Embodied Carbon in Buildings

August 20, 2018 — Engineering News-Record
A recently released primer for the use of a life-cycle assessment approach to analyze the environmental impacts of buildings is considered a small but necessary step toward the ambitious goal of getting to net-zero embodied carbon and operational greenhouse gas emissions in the construction, operation and decommissioning of buildings. The LCA guide comes after the release of the first-of-its-kind benchmarking database of embodied carbon in existing buildings. And another first—a tool to calculate embodied carbon in construction—is on the horizon. Read the court decision
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Reprinted courtesy of Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com

Professional Liability Alert: Joint Client Can't Claim Privilege For Communications With Attorney Sued By Another Joint Client

February 05, 2015 — David W. Evans and Stephen J. Squillario – Haight Brown & Bonesteel LLP
In Anten v. Superior Court (No. B258437 – Filed 1/30/2015), the Second Appellate District held that when joint clients do not sue each other, but one of them sues their former attorney, the nonsuing client cannot prevent the parties to the malpractice suit from discovering or introducing otherwise privileged attorney-client communications made in the course of the joint representation. Under California Evidence Code §958, in lawsuits between an attorney and a client based on an alleged breach of a duty arising from their attorney-client relationship, communications relevant to the alleged breach are not protected by the attorney-client privilege. Similarly, Evidence Code §962 provides that if multiple clients retain or consult with an attorney on a matter of common interest and the joint clients later sue each other, then the communications between either client and the attorney made in the course of that relationship are not privileged in the suit between the clients. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com; Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES