FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Insured's Collapse Claim Survives Summary Judgment

October 28, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The insurer's motion for summary judgment seeking to dispose of the insured's claim for collapse was denied. Life Skills, Inc. v. Harleysville Ins. Co., 2024 U.S. Dist. LEXIS 143658 (D. Mass. Aug. 13, 2024). Life Skills was a non-profit social service agency providing residential and day habilitation services to adults with autism and intellectual and developmental disabilities. The head office was covered by a policy issued by Harleysville with building coverage limits of $3,038,300. Damage occurred in a ceramics classroom located in the basement of the building. The floor sank between eight to twelve inches in the northeast corner. The ceramics classroom contained two large kilns weighing approximately 200 pounds. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage

January 05, 2017 — Masaki J. Yamada – Ahlers & Cressman PLLC
Washington Courts allow an insurer to determine its duty to defend an insured against a lawsuit based only on the face of the complaint and the limitations of the insurance policy. This is otherwise known as the “eight corners” rule (four corners of the complaint plus the four corners of the policy). In other words, the insurance company is not permitted to rely on facts extrinsic to the complaint in order to deny its duty to defend an insured. See Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 763 (2002). The laws in Washington provide greater protection to the insured over the insurer when it comes to the insurer’s duty to defend. The duty to defend a claim is triggered if a claim could “conceivably” be covered under the policy. See Woo v. Fireman’s Insurance, 161 Wn.2d 43 (2007). If there is any ambiguity in a policy with regard to coverage, the ambiguity is interpreted in favor of the insured. As a result, contractors in Washington regularly tender claims or potential claims to their insurers even when damage has not occurred but will occur in the imminent future. Especially in the context of construction defect cases, a contractor will tender such a claim to its insurer to trigger the broad duty of the insurer to provide a defense. We also regularly recommend this to our contractor clients. For example, if a building owner serves a contractor with a claim that the construction and installation of a window system will imminently cause leaks and corrosion, we would recommend that the contractor tender the claim to its commercial general liability insurer. Washington courts have found a duty to defend when there are allegations in the complaint that covered damages will occur in the imminent future. Read the court decision
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Reprinted courtesy of Masaki J. Yamada, Ahlers & Cressman PLLC
Mr. Yamada may be contacted at myamada@ac-lawyers.com

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Manhattan Trophy Home Sellers Test Buyer Limits on Price

February 14, 2014 — Oshrat Carmiel – Bloomberg
Broker Alon Chadad’s client purchased a $14.3 million apartment on Manhattan’s Central Park South, then spent nine months seeking approval for plans to overhaul it. In January, the buyer changed course, listing the unit for sale at more than double what he paid just a year ago. “He filed all the documents for renovation and he was ready to go and he decided, ‘You know what? I see opportunity in the market,’” said Chadad, co-founder of Blu Realty Group and the agent for the 6,160-square-foot (572-square-meter) condominium, which has an asking price of $29.5 million. Luxury-apartment owners in New York are listing a record amount of properties for sale, testing the upper limits of what buyers are willing to pay even as median prices remain off their peak set almost six years ago. Sellers have taken notice of a handful of record-shattering deals, triggered by an $88 million purchase at 15 Central Park West, and demand for trophy homes by international investors seeking havens for their cash. Read the court decision
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Reprinted courtesy of Oshrat Carmiel, Bloomberg
Ms. Carmiel may be contacted at ocarmiel1@bloomberg.net

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Ohio Court Refuses to Annualize Multi-Year Policies’ Per Occurrence Limits

June 19, 2023 — Patricia Santelle, Adam Berardi & Lynndon Groff - White and Williams LLP
White and Williams recently obtained summary judgment against an insured on behalf of an insurer and a guarantor, establishing that two multi-year insurance policies provide per occurrence limits on a per policy rather than a per year basis, which shielded potential exposure by over $100 million. The insured had previously sought and obtained coverage under two policies in connection with a single occurrence arising out of massive environmental contamination claims involving a large industrial site. The issue of whether the policies provide per occurrence limits on a policy term or annual basis was not resolved in this earlier litigation. The first policy was effective for three years and provides per occurrence limits of $40 million. The second policy was effective for up to three years and provides per occurrence limits of $15 million. Reprinted courtesy of Patricia Santelle, White and Williams LLP, Adam Berardi, White and Williams LLP and Lynndon Groff, White and Williams LLP Ms. Santelle may be contacted at santellep@whiteandwilliams.com Mr. Berardi may be contacted at berardia@whiteandwilliams.com Mr. Groff may be contacted at groffl@whiteandwilliams.com Read the court decision
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Ritzy NYC Tower Developer Says Residents’ Lawsuit ‘Ill-Advised’

January 17, 2022 — Chris Dolmetsch - Bloomberg
The developers of a Manhattan skyscraper that has become one of New York City’s toniest residences said the condo board is trying to squeeze money out of them with a lawsuit that claims bogus design flaws. The board is seeking $250 million from builders of the 1,396-foot residential tower at 432 Park Avenue that opened in 2015 on the so-called Billionaire’s Row. Their suit alleges the company that developers CIM Group and Macklowe Properties formed to build the structure failed to take into account its unusual height, leading to flooding, noise, vibrations and elevators that are prone to malfunctions. In a response to the suit filed Wednesday, the company called the building “a treasure” and the suit was “ill-advised.” While the structure needed to be “fine-tuned” when residents started to move in, the board stopped the builders from accessing the facilities and finishing the job “while manufacturing an ever-increasing list of demands,” most of which were not required, according to court filings. Read the court decision
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Reprinted courtesy of Chris Dolmetsch, Bloomberg

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Contractor Liable for Soils Settlement in Construction Defect Suit

February 10, 2012 — CDJ STAFF

The California Court of Appeals ruled on January 9 in Burrow v. JTL Dev. Corp., a construction defect case in which houses suffered damage due to improperly compacted soil, upholding the decision of the lower court.



Turf Construction entered into a deal with JTL to develop a parcel they acquired. A third firm, Griffin Homes, withdrew from the agreement “when a geotechnical and soils engineering firm reported significant problems with soil stability on 14 of the lots.” Turf Construction then took over compacting and grading the lots. Turf “had never compacted or graded a residential tract before.” Robert Taylor, the owner of Turf, “testified he knew there was a significant problem with unstable soils.”



After homes were built, the plaintiffs bought homes on the site. Shortly thereafter, the homes suffered damage from soil settlement “and the damage progressively worsened.” They separately filed complaints which the court consolidated.



During trial, the plaintiff’s expert said that there had been an inch and a half in both homes and three to five inches in the backyard and pool areas. “He also testified that there would be four to eight inches of future settlement in the next fifteen to twenty years.” The expert for Turf and JTL “testified that soil consolidation was complete and there would be no further settlement.”



Turf and JTL objected to projections made by the plaintiffs’ soil expert, William LaChappelle. Further, they called into question whether it was permissible for him to rely on work by a non-testifying expert, Mark Russell. The court upheld this noting that LaChappelle “said that they arrived at the opinion together, through a cycle of ‘back and forth’ and peer review, and that the opinion that the soil would settle four to eight inches in fifteen to twenty years was his own.”



Turf and JTL contended that the court relied on speculative damage. The appeals court disagreed, stating that the lower court based its award “on evidence of reasonably certain damage.”



Turf also that it was not strictly liable, since it did not own or sell the properties. The court wrote that they “disagree because Turf’s grading activities rendered it strictly liable as a manufacturer of the lots.” The court concluded that “Turf is strictly liable as a manufacturer of the lots.”



Judge Coffee upheld the decision of the lower court with Judges Yegan and Perren concurring.

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Hovnanian Increases Construction Defect Reserves for 2012

January 06, 2012 — CDJ STAFF

In their fourth quarter earnings call, executives of Hovnanian Enterprises made some projections for investors, covering the company’s plans for 2012. During the call, Ara K. Hovnanian, the firm’s CEO, discussed their reserves to meet construction defect claims. The firm does an annual actuarial study of their construction defect reserves.

Mr. Hovnanian noted that there have been no changes for the past several years, but this year they are increasing their reserves by about $6.3 million. Additionally, the firm has added $2.5 million to their legal reserves. Mr. Hovnanian stated “we do not anticipate that changes of this magnitude will be recurring as we look forward to 2012.”

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Elon Musk’s Proposed Vegas Strip Transit System Advanced by City Council Vote

January 11, 2021 — Sarah McBride - Bloomberg
Elon Musk’s tunneling company Boring Co. is already building a transit system for Las Vegas convention-goers. Now, he wants to build one for the rest of the city. On Wednesday, the Las Vegas City Council voted unanimously to advance plans to dramatically expand Musk’s Loop project from a convention center transit system to a citywide network that would include hotels and, one day, potentially even the airport. The proposed expansion brings the tunnel-based transportation system as far north as Ogden Avenue, near attractions such as the Downtown Container Park and classic casinos like the Golden Nugget. Proposed stops en route include the Arts District and the Stratosphere tower, the spaceship-like landmark that is part of a hotel. The precise location of stations will be determined later in the process, according to documents submitted to the council. Read the court decision
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Reprinted courtesy of Sarah McBride, Bloomberg

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