FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

COVID-19 Pandemic Preference Amendments to Bankruptcy Code Benefiting Vendors, Customers, Commercial Landlords and Tenants

May 03, 2021 — Andrew Arthur & Steven Ostrow - White and Williams LLP
Over the last three months, Congress has passed major pieces of legislation primarily in response to the COVID-19 pandemic, including the Consolidated Appropriations Act of 2021 (CAA), which was signed into law on December 27, 2020. In addition to funding the federal government and a second round of pandemic relief, the CAA contains several amendments to the Bankruptcy Code. One of the amendments provides preference protection to commercial landlords and suppliers who receive overdue payments from their tenants or customers under agreements made on or after March 13, 2020 to postpone the payment of rent or supplier charges. The preference amendments encourage these creditors to afford their customers and tenants payment deferment arrangements without the risk that the companies will clawback the payments as preferences if they later file for bankruptcy protection. The amendments should facilitate workouts of distribution and leasing agreements to help distressed businesses recover and repay arrearages as COVID-19 related governmental restrictions are lifted this year. Reprinted courtesy of Andrew Arthur, White and Williams LLP and Steven Ostrow, White and Williams LLP Mr. Ostrow may be contacted at ostrows@whiteandwilliams.com Mr. Arthur may be contacted at arthura@whiteandwilliams.com Read the court decision
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As Florence Eyes East Coast, Are You Looking At Your Insurance?

October 02, 2018 — Michael S. Levine & Andrea DeField - Hunton Insurance Recovery Blog
Hurricane Florence will affect the U.S. east coast later this week with significant damage to property and resulting business disruption. Businesses far-removed from the impact zone also will be affected as manufacturing, retail, travel and supply chains, among other industries, are disrupted by the physical damage. For those in the impact zone, knowing the fundamentals about your property insurance is critical. For those in remote locations, now is a good time to refresh yourself as well, since post-storm disruptions and losses require prompt notice to insurers and fast action to help mitigate any resulting loss. A failure on either front could jeopardize coverage. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Andrea DeField, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. DeField may be contacted at adefield@HuntonAK.com Read the court decision
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New Jersey Federal Court Examines And Applies The “j.(5)” Ongoing Operations Exclusion

October 07, 2019 — Anthony L. Miscioscia and Timothy A. Carroll - White and Williams LLP
In PJR Construction of N.J. v. Valley Forge Insurance Company, 2019 U.S. Dist. LEXIS 127973 (D.N.J. July 31, 2019) (PJR Construction), a New Jersey federal court held that the “j.(5)” “Ongoing Operations Exclusion” applied to bar coverage for property damage to property on which a construction company allegedly performed faulty work. The court’s opinion follows prior New Jersey state court precedent, including Ohio Casualty Insurance Company v. Island Pool & Spa, Inc., 12 A.3d 719 (N.J. Super. Ct. App. Div. 2011) (Island Pool), but also provides additional guidance on the elements which can make the Ongoing Operations Exclusion applicable to exclude coverage. In PJR Construction, a commercial property owner engaged a construction company to build a 26,000 square foot swim club and related 3,000 square foot pavilion building in New Jersey. After about 75% of the work was completed, the property owner fired the construction company and denied it access to the property. The owner later sued the construction company in New Jersey state court alleging “shoddy workmanship” in, among other things, sealants, flashing, water resistant barriers, masonry and the handicap ramps. The construction company sought coverage from its CGL insurer, which denied coverage based on, among other things, the j.(5) Ongoing Operations Exclusion. After the denial of coverage, the company sued the insurer in New Jersey federal court seeking a declaration of coverage. Reprinted courtesy of Anthony L. Miscioscia, White and Williams LLP and Timothy A. Carroll, White and Williams LLP Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Mr. Carroll may be contacted at carrollt@whiteandwilliams.com Read the court decision
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Seventh Circuit Remands “Waters of the United States” Case to Corps of Engineers to Determine Whether there is a “Significant Nexus”

July 10, 2018 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog
On June 27, the U.S. Court of Appeals for the Seventh Circuit decided the case of Orchard Hill Building Co. v. U.S. Army Corps of Engineers. The Court of Appeals vacated the decision of the District Court granting the U.S. Army Corps of Engineers’ (Corps) motion for summary judgment dismissing the Orchard Hill Building Company’s (Orchard) complaint that the Corps’ jurisdictional determination erroneously found that the waters at issue were “jurisdictional waters” under the Clean Water Act (CWA) subject to the Corps’ jurisdiction. Acknowledging that the Corps and EPA had promulgated a new rule re-defining “waters of the United States” in 2015—which is now being challenged in the courts—the Court of Appeals noted that this case is controlled by the pre-2015 definition of “waters of the United States.” The Court of Appeals remanded the case to the Corps, directing it to determine if there was a significant nexus, as required. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLP
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Where Standing, Mechanic’s Liens, and Bankruptcy Collide

September 17, 2018 — Christopher G. Hill - Construction Law Musings
I have spoken often about mechanic’s liens and the implications of such liens as they relate to bankruptcy here at Construction Law Musings. A recent case out of Loudoun County, Virginia added another wrinkle to this discussion, that of standing and what happens on conveyance of the property and what interest in the property is required to allow a party to seek removal of the mechanic’s lien. In Leesburg Bldg. P’rs LLC v. Mike Berger Inc. the Loudoun County Circuit Court faced the following scenario. Leesburg Building Partners developed certain condominiums and hired Lansdowne Construction to perform the work as general contractor and paid Landsdowne in full for the work. Lansdowne hired Mike Berger, Inc. (“MBI”) to perform concrete work for the project. Landsdowne didn’t pay MBI approximately $48,000.00 and subsequently filed for bankruptcy. MBI, seeking to protect it’s interest in the money it was owed, recorded a mechanic’s lien on the property. Leesburg Building Partners filed an action to declare the lien invalid and have it removed from the property based upon its “payment defense” and the fact that it had paid Landsdowne in full. A relatively simple scenario and one that has been discussed before here at Musings. Not so fast. . . Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Update: Amazon Can (Still) Be Liable in Louisiana

December 31, 2024 — Michael Ciamaichelo - The Subrogation Strategist
On November 25, 2024, in Pickard v. Amazon.com, Inc., No. 5:20-cv-01448, 2024 U.S. Dist. LEXIS 215377, the United States District Court for the Western District of Louisiana (District Court) ruled that Amazon.com, Inc. (Amazon) could be liable for manufacturer-seller liability under the Louisiana Products Liability Act (LPLA) for a defective product sold by a third-party seller through the “Fulfillment by Amazon” program (FBA). The court also dismissed two tort claims against Amazon as follows: (i) Amazon does not qualify as a “seller” for purposes of non-manufacturer seller liability (because passing title is required for that claim); and (ii) there is insufficient evidence to prove the decedent, Archie Pickard (Pickard), relied on Amazon’s safety practices when purchasing the defective product, precluding a claim for negligent undertaking. Background Pickard died from injuries sustained in a house fire allegedly caused by a defective battery charger he purchased on Amazon. Jisell, a Chinese company and a third-party seller, manufactured and sold the charger. Amazon never took title to the charger but stored it in its warehouse and delivered it to Pickard through the FBA. Pickard’s children filed a wrongful death lawsuit against Amazon alleging three claims: (i) manufacturer-seller liability under the LPLA; and tort-based claims of (ii) non-manufacturer seller liability and (iii) negligent undertaking. After Amazon moved for summary judgment on all claims, the District Court certified questions to the Supreme Court of Louisiana (Supreme Court) seeking guidance as there was minimal guidance regarding the application of products claims to online marketplaces. Read the court decision
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Reprinted courtesy of Michael Ciamaichelo, White and Williams LLP
Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com

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Hurdles with Triggering a Subcontractor Performance Bond

April 05, 2017 — David Adelstein – Florida Construction Legal Updates
There have been a couple of decisions as of late, particularly in federal court, that have gone in favor of a performance bond surety and against a general contractor’s claim against a subcontractor’s performance bond. These decisions have been so unfavorable that they may be swaying certain internal decisions to move to subcontractor default insurance with, perhaps, subcontractors that pose less risk. From the general contractor’s perspective, if they have to stop the management of the job and progress to jump through hoops to trigger the performance bond’s obligations, rightfully or wrongfully, the bond may not provide them the value they need. Performance bonds are an appropriate product in many instances, but there should be more consistency regarding the actual trigger of a subcontractor’s performance bond obligations. Project teams need to absolutely understand what efforts they need to take, and how they need to take such efforts, in order to properly trigger a performance bond’s obligations. This is a must (and I have presented many seminars on this very issue). Or, the general contractor should move away from the traditional AIA /standard performance bond form, which is the direction I always go when I am involved in the drafting of a performance bond. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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The Housing Market Is Softening, But Home Depot and Lowe's Are Crushing It

February 26, 2015 — Patrick Clark – Bloomberg
Two monthly reports that track the strength of the U.S. housing market offered dour assessments this week. And yet the companies that sell homeowners appliances, building materials, and power tools are thriving. Home Depot reported strong sales growth yesterday, and Lowe’s did the same today. That follows news that existing home sales dropped 4.9 percent in January, according to the National Association of Realtors, and results from the S&P Case/Shiller index that showed the growth of home prices is slowing in major U.S. cities. Read the court decision
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Reprinted courtesy of Patrick Clark, Bloomberg
Mr. Clark may be contacted at jclark185@bloomberg.net

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