Fairfield Connecticut Building Expert Directory

Prior Occurrence Exclusion Bars Coverage for Construction Defects

April 11, 2022 — Tred R. Eyerly - Insurance Law Hawaii
While the insured's faulty work constituted an occurrence under Florida law, a prior occurrence exclusion barred coverage. Pro-Tech Caulking & Waterproofing v. TIG Ins. Co., 2022 U.S. Dist. LEXIS 12319 (S.D. Fla. Jan. 19, 2022). Pro-Tech was a waterproofing subcontractor for construction of a oceanfront condominium building and was responsible for the installation of waterproofing systems on the Project. Pro-Tech entered into a separate contract with the developer, BRE Point Parcel, LLC to install a traffic coating on the garage floors. BRE sued the general contractor, Pro-Tech and others for construction defects. The underlying action alleged that Pro-Tech, among other things, failed to wrap the filter fabric to protect the weep holes, improperly installed sealants between the stucco and the underside of the horizontal tile at the balcony slab edge, and failed to properly install traffic coating in one garage. The underlying complaint did not state exactly when the "property damage" resulting from Pro-Tech's alleged defective work occurred. 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

Pipeline Safety Violations Cause of Explosion that Killed 8

April 02, 2014 — Beverley BevenFlorez-CDJ STAFF
Bloomberg Business Week reported that “PG&E Corp. (PCG:US), owner of California’s largest utility, was charged with 12 pipeline safety violations by the U.S. government for a 2010 natural gas explosion that killed eight people and left a crater the size of a house.” PG&E was charged “with knowingly and willfully violating the Natural Gas Pipeline Safety Act by failing to test and assess unstable pipelines to determine whether they could fail.” Furthermore, “Federal investigators are studying whether a leaking gas main operated by Consolidated Edison Inc. (ED:US) contributed to an explosion in New York City last month that also claimed eight lives.” Read the court decision
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Chinese Drywall Manufacturer Claims Product Was Not for American Market

October 22, 2013 — CDJ STAFF
Taishan Gypsum Co. Ltd. Claimed in a hearing at the Fifth Circuit Court of Appeals that when they sold about $8.5 million of contaminated drywall to Venture Supply Inc. of Virginia, that they had no awareness that the drywall would be sold in the United States. Joe Cyr, an attorney for Taisan told the court that “Venture Supply never said it was going to distribute the goods in Virginia.” One of the judges on the three-judge panel, Judge Jennifer Walker Elrod, was skeptical of Taishan’s claim, asking, “it was packed and labeled for the Virginia market, isn’t that correct?” When asked by a judge if Taishan was trying to avoid accountability, Cyr said that Tiashan “has not said that it doesn’t want to be accountable for its drywall.” Taishan holds the position that claims against it should be arbitrated in the People’s Republic of China. Read the court decision
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Hennigh Law Corporation Wins Award Against Viracon, Inc In Defective Gray PIB Case

July 11, 2022 — Scott Hennigh - Hennigh Law Corporation
LOS ANGELES, July 08, 2022 (GLOBE NEWSWIRE) -- Hennigh Law Corporation has announced that, after an over four-year battle in and out of court, a three arbitrator panel issued a 93-page interim award in finding Viracon, Inc., liable for $13,682,840 in direct damages for defrauding the owner of the premier office building in Burbank, California, The Pointe. The matter now enters the second phase, where the arbitration panel will rule on the amount of punitive damages to assess, as well as attorney fees and interest. Scott Hennigh, trial attorney, states, "The California construction industry is very robust with high standards. The arbitration panel appears to have recognized that California law does not tolerate large out-of-state companies misleading customers. They appear poised to send a message to Viracon about its lack of corporate responsibility." The premier Class-A office building in Burbank, California, The Pointe, serves high-end tenants in entertainment industries such as Warner Brothers. Constructed in 2009, the 13 exterior curtain wall of the 13-story building is encased in seamless glass panels. Read the court decision
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Reprinted courtesy of Scott Hennigh, Hennigh Law Corporation
Mr. Hennigh may be contacted at Scott.hennigh@hennighlaw.com

Umbrella Policy Must Drop Down to Assist with Defense

May 12, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The court determined that an umbrella carrier was obligated to assist the general liability insurer in defending the insured. Am. States Ins. Co. v. Insurance Company of the State of Pennsylvania, 2016 U.S. Dist LEXIS 38128 (E.D. Cal. March 23, 2016). Sierra Pacific Industries obtained rights to timber harvesting operation on a parcel of land in northern California. Sierra hired Howell's Forest Harvesting to perform certain timber harvest operations under the terms of a logging agreement. The logging agreement required Howell to obtain a CGL policy and to name Sierra as an additional insured. 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

Illinois Federal Court Determines if Damages Are Too Remote

July 13, 2020 — Lian Skaf - The Subrogation Strategist
Foreseeability is a tort concept that tends to permeate several aspects of legal analysis, often causing confusion in litigants’ interpretation of, and courts’ application of, foreseeability to their cases. In Cincinnati Ins. Co. v. Progress Rail Services. Corp., 2020 U.S. Dist. LEXIS 73967 (C.D. Ill.), the United States District Court for the Central District of Illinois took on the task of analyzing a case dealing with foreseeability issues to determine if the defendant owed the plaintiff a duty and if the damages were so remote as to violate public policy. The court held that since the defendant’s actions contributed to the risk of harm to the plaintiff and the facts satisfied the four-prong duty test, the defendant owed the plaintiff’s subrogor a duty of reasonable care. It also held that the plaintiff’s damage claim did not open the defendant up to liability that would violate public policy. In the case, an employee of defendant Progress Rail Services Corporation (Progress Rail) was operating a crane at Progress Rail’s Galesburg location on May 7, 2018. The employee struck an overhead power line while working, causing a power disruption to nearby businesses. The plaintiff’s subrogor, Midstate Manufacturing Company (Midstate), was one of the affected businesses, reporting that its Amada hydraulic punch was damaged. Midstate submitted a property damage claim to its carrier, Cincinnati Insurance Company (Cincinnati), who reimbursed it under its policy. Subsequent to its payment, Cincinnati filed suit against Progress Rail in Illinois state court. Progress Rail then removed the case to federal court and filed a motion to dismiss. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

Certificate of Merit to Sue Architects or Engineers Bill Proposed

May 03, 2011 — CDJ STAFF

North Carolina may become the twelfth state to require a Certificate of Merit to sue an architect or engineer. If North Carolina Senate Bill 435 (SB435) passes, then plaintiffs when filing a complaint will need to also attach an affidavit of a third-party licensed professional engineer or architect stating that the case has merit.

SB435 is a short two pages in its current form. The bill states that the “third-party licensed professional engineer or licensed architect shall (i) be competent to testify and hold the same professional license and practice in the same area of practice as the defendant design professional and (ii) offer testimony based upon knowledge, skill, experience, education, training, and practice. The affidavit shall specifically state for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the design professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed professional engineer or licensed architect shall be licensed in this State and actively engaged in the practice of engineering or architecture respectively.”

A few of the amendments allude to disciplining design professionals who certify civil actions that are without merit. The bill has been referred to the Committee on Judiciary I.

While North Carolina is considering enacting a Certificate of Merit law, eleven other states already require one, including Arizona, California, Colorado, Georgia, Maryland, Minnesota, New Jersey, Oregon, Pennsylvania, South Carolina, and Texas. Christopher D. Montez, a partner with Thomas, Feldman & Wilshusen, LLP, has written a useful summary for each state’s certificate of merit scheme.

Read the text of SB435

Track the progress of SB435

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Disjointed Proof of Loss Sufficient

June 11, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The court found that when considered as a whole, separately filed proofs of loss and estimates of damage were sufficient to meet the requirements of a flood policy. Young v. Imperial Fire & Cas. Ins. Co., 2014 U.S. Dist. LEXIS 51863 (April 15, 2014). On August 29, 2012, plaintiffs' property sustained flood damage due to Hurricane Isaac. After Imperial's adjustor inspected the property, advance payments were made for $5000 under the building coverage and $5000 under the contents coverage. On October 26, 2012, the plaintiffs' adjustor submitted a proof of loss for building damages, stating the amount of loss was $175,100, which was the policy limit minus the deductible. The insured wife signed the proof of loss. The actual case value, full cost of replacement or repair, and applicable depreciation were listed "undetermined." 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

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