Fairfield Connecticut Building Expert Directory

When is Forum Selection in a Construction Contract Enforceable?

September 29, 2021 — Christopher G. Hill - Construction Law Musings
If there is one mantra that is repeated often here at Construction Law Musings, it is that your construction contract will be strictly construed and Virginia Courts will enforce the provisions as written. This rule includes forum selection clauses. For those that aren’t attorneys, this means that absent a statute to the contrary, the parties can pick the location of any litigation or arbitration by contract. However, the timing of signing that contract makes a difference as a relatively recent Eastern District of Virginia case points out. Marathon Res. Mgmt Grp v. C. Cornell, Inc. examined what happens when work is performed by one party to the contract prior to the execution of the written contract that contains the forum selection provision. In this case, the defendant C. Cornell, Inc. obtained a default judgment in Texas for non-payment by Marathon for painting and cleaning of rooms at Texas A & M University for work invoiced on August 22, 2017, and September 11, 2017. Upon receipt of the garnishment from the Texas Court, Marathon sued C. Cornell in Virginia state court and the defendant removed the case to federal court. Marathon alleged two separate breaches of contract, the first was that C. Cornell violated the forum selection clause of a Master Services Agreement (“MSA”) executed on September 23, 2017. The second was a violation of another clause of the MSA that barred direct communication with any of Marathon’s customers. The second breach was alleged to be by virtue of the garnishment summons to one of Marathon’s customers. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Before and After the Storm: Know Your Insurance Rights, Coverages and Obligations

October 04, 2021 — Hunton Insurance Recovery Blog
This year, like last, the National Oceanic and Atmospheric Administration predicts an extremely active hurricane season. As we write this alert, the Gulf Coast, Mid-Atlantic, New York, and New England regions are just now realizing the devastation Ida has left in her path. Now is the time to ensure your insurance program is hurricane-ready. In this client alert, our insurance coverage team provides critical steps that you should take now to ensure that you protect your assets and maximize recovery in the unfortunate event of a hurricane claim. Know Your Coverage: What Does Your Policy Say and Where Can It Be Found? Obtain copies of your relevant property insurance forms and read them now. Knowing your coverage, even on a general level, will help you anticipate the immediate steps to take following a loss, including how to notify your insurer of losses to your covered property. Read the court decision
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Reprinted courtesy of Hunton Andrews Kurth

The Architecture of Tomorrow Mimics Nature to Cool the Planet

January 31, 2022 — Damian Shepherd - Bloomberg
There’s a new climate push in the building industry: regenerative architecture. The sector has been trying for years to cut its sizeable carbon footprint, which was responsible for 38% of the world’s energy-related greenhouse gases in 2019. But developers need to go beyond preventing pollution if they want to help avoid catastrophic climate change, according to Sarah Ichioka and Michael Pawlyn, co-authors of a new book titled Flourish: Design Paradigms for Our Planetary Emergency. They argue that buildings should be designed in a regenerative way — a process that mimics nature by restoring its own materials and sources of energy. It goes further than sustainable design, which seeks to reduce harm to the environment and use only essential materials. “More than half of humanity’s total historic greenhouse-gas emissions have occurred since the concept of ‘sustainability’ entered the mainstream,” Ichioka and Pawlyn write. “It is now time to embrace a new regenerative approach to design and development.” Read the court decision
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Reprinted courtesy of Damian Shepherd, Bloomberg

Illusory Insurance Coverage: Real or Unreal?

August 24, 2017 — David Adelstein - Florida Construction Legal Updates
In insurance coverage declaratory relief actions, there are times an insured will argue that the insurance policy coverage is illusory. Typically, an insured will raise this illusory argument if its insurer is denying coverage based on an exclusion or limitation in the policy. If a court agrees and deems the coverage illusory, the court will construe the policy to afford coverage to the insured. This is the obvious value of the argument: coverage! “A policy is illusory only if there is an internal contradiction that completely negates the coverage it expresses to provide.” The Warwick Corp. v. Turetsky, 42 Fla.L.Weekly D1797a (Fla. 4th DCA 2017). Thus, if a policy grants coverage in one section but then excludes the same coverage in another section, the coverage would be deemed illusory. Id. quoting Tire Kingdom, Inc. v. First S. Ins. Co., 573 So.2d 885, 887 (Fla. 3d DCA 1990). An illusory policy was found in the following examples: (a) a policy covered certain intentional torts but then excluded intended acts; (b) a policy covered advertising injury but elsewhere excluded advertising injury; and (c) a policy covered parasailing but excluded watercrafts. Id. (citations omitted). In all examples, coverage in the policy was completely swallowed up by an exclusion rendering the coverage illusory. Stated differently, coverage was completely contradicted by an exclusion in the policy rendering the policy absurd. 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

Construction Jobs Keep Rising, with April Gain of 33,000

June 10, 2019 — Tom Ichniowski - Engineering News-Record
The construction employment picture continues to brighten, as the industry gained 33,000 jobs in April and its jobless rate improved, the federal Bureau of Labor Statistics has reported. Read the court decision
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Reprinted courtesy of Tom Ichniowski, ENR
Mr. Ichniowski may be contacted at ichniowskit@enr.com

Construction Defects Not Occurrences under Ohio Law

November 07, 2012 — CDJ STAFF
Concluding the “claims of defective construction or workmanship brought by a property owners are not claims for ‘property damage’ caused by an ‘occurrence’ under a commercial general liability policy,” the Supreme Court of Ohio has ruled in Westfield Insurance Co. v. Custom Agri Systems, Inc. In the underlying case, Custom Agri Systems, Inc. built a grain bin as a subcontractor to Younglove Construction, LLC. Younglove had been contracted by PSD Development, which withheld payment, claiming it had suffered damages due to defects in Custom Agri System’s work. Younglove filed a complaint against Custom Agri, which filed complaints against its subcontractors. Custom Agri also requested that its insurer, Westfield Insurance Company, defend and indemnify it. Westfield claimed that it had no such duty. The Ohio Supreme Court concurred. The decision notes that “Custom was being sued under two general theories: defective construction and consequential damages resulting from the defective construction.” Westfield argued that none of the claims were “for ‘property damage’ caused by an ‘occurrence” and therefore none of the claims were covered under the CGL policy.” Further, Westfield argued that “even if the claims were for property damage caused by an occurrence, they were removed from coverage by an exclusion in the policy.” The case was filed in the US District Court which issued a summary judgment for Westfield. The plaintiff appealed and Sixth Circuit Court of Appeals certified the questions to the Supreme Court of Ohio. The court noted that “all of the claims against which Westfield is being asked to defect and indemnify Custom relate to Custom’s work itself.” And so, the court concluded that they “must decide whether Custom’s alleged defective construction of and workmanship on the steel grain bin constitute property damage caused by an ‘occurrence.’” However, the court noted that under the terms of the insurance contract, an occurrence is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions,” and the court noted that the “natural and commonly accepted meaning” of “accident” is something “unexpected, as well as unintended.” The Ohio Supreme Court also looked at court decisions in other places, and found that in many similar cases, courts have concluded that construction defects are not occurrences. In a dissenting opinion, Justice Pfeifer argues that “if the defective construction is accidental, it constitutes an ‘occurrence’ under a CGL policy.” Justice Pfeifer characterized the majority’s definition of “accidental” as “broad, covering unexpected, unintentional happenings.” Read the court decision
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The Courts and Changing Views on Construction Defect Coverage

October 02, 2013 — CDJ STAFF
There have been changes recently in how courts interpret commercial general liability policies. Writing for Claims Journal, Burke Coleman, who is legal counsel and Compliance Manager for Demotech, looks at five recent cases and how they show changing views of CGL policies and construction defect claims. He notes that the Ohio Supreme Court concluded that “defective construction itself does not trigger coverage.” The court’s view in Westfield Ins. Co. v. Custom Agri Systems, Inc. was that a CGL policy does not protect contractors from every risk, but instead covers damage to other property that occur due to its work. But, conversely, the Georgia Supreme Court found that construction defect claims could be covered under a commercial general liability policy, noting that “the limits of coverage do not have to be found in the word ‘occurrence,’ inasmuch as the other words of the insuring agreement — as well as the policy exclusions — have their own roles to play in marking the limits of coverage.” This decision was reached in Taylor Morrison Services v. HDI-Gerling America. The Connecticut Supreme Court also concluded that defective construction could trigger coverage from a CGL policy, however, as Mr. Coleman notes, “only damage to non-defective property may be entitled to coverage.” He concludes that the North Dakota Supreme Court “has taken an even broader approach to the issue.” That court found that construction defects were covered “if the faulty work was unexpected and unintended.” Finally, the Supreme Court of Appeals of West Virginia held that faulty work can be property damage. He notes “the policy at issue included a ‘your work’ exclusion that excluded coverage for work performed by the insured, but subcontractors were excepted from the exclusion.” However, another clause excluded work performed on the behalf of the insured. Read the court decision
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User Interface With a Building – Interview with Esa Halmetoja of Senate Properties

September 14, 2017 — Aarni Heiskanen - AEC Business
Architect Mies van der Rohe once said that, “An office is a machine for working in.” From a maintenance person’s point of view that might be true. For a user, an office should offer a productive working environment. A pilot project, led by Esa Halmetoja of Senate Properties, is trying to find out how a digital twin of a building would serve both the needs of the maintenance worker and the office worker. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at info@aepartners.fi

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