FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Times Square Alteration Opened Up a Can of Worms

January 26, 2017 — Nadine M. Post – Engineering News-Record
Compared with some of its Manhattan neighbors, a high-rise on the corner of Seventh Avenue and West 47th Street looks standard. Like many buildings in Times Square, the 41-story retail-entertainment-hotel development, nearly topped out, has a tower springing from a boxy base that will sport a flashy billboard. Read the court decision
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Reprinted courtesy of Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com

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North Carolina, Tennessee Prepare to Start Repairing Helene-damaged Interstates

October 07, 2024 — Derek Lacey - Engineering News-Record
Damage from Hurricane Helene to interstates between North Carolina and Tennessee includes washed-out roads and bridges, landslides and extensive flooding—creating a long list of repair work needed for state transportation agencies as they prepare to rebuilding critical highways across the Appalachian Mountains. Reprinted courtesy of Derek Lacey, Engineering News-Record Mr. Lacey may be contacted at laceyd@enr.com Read the full story... Read the court decision
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California Supreme Court Adopts Vertical Exhaustion for Long-Tail Claims

June 15, 2020 — Tred R. Eyerly - Insurance Law Hawaii
In another round of litigation involving coverage issues between Montrose Chemical Corporation and its insurers, the California Supreme Court ruled in favor of Montrose, adopting vertical exhaustion of excess policies. Montrose Chem. Corp. of Calif. v. The Superior Court of Los Angeles County, 9 Ca. 5th 215 (2020). In 1990, the United States and the State of California sued Montrose for contamination from 1947 to 1982 caused by Montrose's facility manufacturing insecticides. Montrose had primary and excess liability policies from defendant insurers between 1961 and 1985. Forty insurers collectively issued more than 115 excess policies, which collectively provided coverage sufficient to indemnify Montrose's anticipate total liability. Primary coverage was exhausted. Each excess policy provided that Montrose had to exhaust the limits of its underlying coverage before there would be excess coverage. Which excess carrier could be called on first was the issued before the California Supreme Court. Montrose proposed a rule of "vertical exhaustion" or "elective stacking," whereby it could access any excess policy once it exhausted other policies with lower attachment points in the same policy period. The insurers, in contract, argued for "horizontal exhaustion," whereby Montrose could access an excess policy only after it exhausted other policies with lower attachment points from every policy period in which the environmental damage resulting in liability 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

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Useful Life: A Valuable Theory for Reducing Damages

March 29, 2017 — Brooke E. Beebe, Esq. - Florida Construction Law News
The situation is one all too familiar to construction defect litigants. A homeowner contracts with a roofing contractor to install a new roof with a life expectancy of ten years.[1] After only five years, the homeowner brings a claim for construction defects in the roof alleging that the roof requires complete replacement due to water intrusion. The homeowner seeks damages for the full replacement cost of the roof. However, under a “useful life” theory, the homeowner would not be entitled to damages for the full amount of the replacement cost. Instead, the homeowner would be entitled to one-half of the cost of the replacement roof, taking into account the fact that he or she had been deprived of only five, rather than ten, years of use. “Useful life” is best understood as the expected length of time that a newly built construction element can be reasonably anticipated to last, subject to routine maintenance and ordinary wear and tear. The “useful life” theory holds that granting the homeowner damages for the full replacement cost of the roof would result in unjust enrichment to the homeowner, who had contracted for a roof with a ten-year, rather than a fifteen-year, useful life. Read the court decision
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Reprinted courtesy of Brooke E. Beebe, Cole, Scott & Kissane, P.A.
Ms. Beebe may be contacted at brooke.beebe@csklegal.com

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Formal Request for Time Extension Not Always Required to Support Constructive Acceleration

April 25, 2022 — David Adelstein - Florida Construction Legal Updates
Does a constructive acceleration claim require the contractor to always request an extension of time which is then denied by the owner? While this is certainly the preference and the contractor should be requesting an extension of time as a matter of course for an excusable delay, the answer is NO! in certain circumstances. This is conveyed in the factually detailed case discussed below where a formal request for an extension of time was not required for the contractor to support its constructive acceleration claim. But first, what is constructive acceleration: Constructive acceleration “occurs when the government demands compliance with an original contract deadline, despite excusable delay by the contractor.” The Federal Circuit in Fraser defined the elements of constructive acceleration as follows: (1) that the contractor encountered a delay that is excusable under the contract; (2) that the contractor made a timely and sufficient request for an extension of the contract schedule; (3) that the government denied the contractor’s request for an extension or failed to act on it within a reasonable time; (4) that the government insisted on completion of the contract within a period shorter than the period to which the contractor would be entitled by taking into account the period of excusable delay, after which the contractor notified the government that it regarded the alleged order to accelerate as a constructive change in the contract; and (5) that the contractor was required to expend extra resources to compensate for the lost time and remain on schedule. Nova Group/Tutor-Saliba v. U.S., 2022 WL 815826, *42 (Fed.Cl. 2022) quoting Fraser Constr. Co. v. U.S., 384 F.3d 1354, 1361 (Fed. Cir. 2004) (internal citations omitted). 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

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California’s Fifth Appellate District Declares the “Right to Repair Act” the Exclusive Remedy for Construction Defect Claims

September 03, 2015 — Stephen A. Sunseri – Gatzke Dillon & Balance LLP
August 26, 2015 - The Fifth Appellate District ruled SB800 (California's "Right to Repair Act" [the "Act"]) provides the sole remedy for homeowners in construction defect actions. The court found "no other cause of action is allowed to recover for repair of the defect itself or for repair of any damage caused by the defect." (McMillin Albany LLC v. Superior Court of California (Aug. 26, 2015, No. F069370) __ Cal.App.4th __ [2015 WL 5029324].) The court issued a blistering criticism of the Fourth Appellate District's prior opinion in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, which severely limited the reach of the Act to actions not involving property damage and allowing property damage claims to proceed freely under common law without any constraints posed by the Act. In McMillin, the court reviewed whether a homeowner was required to follow the Act's prelitigation procedures even after dismissing a cause of action arising under the Act. In deciding the issue, the court quoted directly from the first line of the Act (Civ. Code § 896) and found "[i]n any action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction … , the claimant's claims or causes of action shall be limited to violation of" the standards set out in the Act. The court recognized the statutory exceptions to this rule, such as for claims arising under contract, or any action for fraud, personal injuries, or statutory violations. (Civ. Code., § 943.) However, this result directly conflicts with the Fourth Appellate District's decision in Liberty Mutual, which found homeowners can circumvent the entire Act by simply alleging property damage claims. McMillin rejects Liberty Mutual's "reasoning and outcome" as being inconsistent with the express language of the Act. McMillin found that Liberty Mutual failed to fully analyze the statutory language of the Act, which (on its face) limits any action for construction deficiencies to the requirements of the Act. McMillin concludes the Legislature intended that all construction defect actions (for new residences sold on or after January 1, 2003), are subject to the requirements of the Act, including the prelitigation procedures, regardless of whether a complaint expressly alleges a cause of action under the Act or not. McMillin is a great victory for homebuilders, but battle lines are now clearly drawn between the two appellate districts. McMillin directly conflicts with Liberty Mutual, and because of this conflict, the issue will need to be resolved by the California Supreme Court. Until such review is granted, the conflict will remain and trial courts will likely continue to conflate the issue. Read the court decision
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Reprinted courtesy of Stephen A. Sunseri, Gatzke Dillon & Balance LLP
Mr. Sunseri may be contacted at ssunseri@gdandb.com

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Anti-Concurrent Causation Clause Eliminates Loss from Hurricane

September 06, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The court found the insured was not covered for losses caused by Hurricane Laura due to the implementation of the policy's anti-concurrent causation clause. Aegis Sec. Ins. Co. v. Lejeune, 2021 U.S. Dist. LEXIS 106804 (W. D. La. June 7, 2021). At the time of the hurricane, the insureds' home was covered by a manufactured home insurance policy issued by Aegis. The policy excluded coverage for damage "caused by, contributed to or aggravated by" flooding. The policy's anti-concurrent causation clause read, "We do not pay for loss to the types of property covered under this policy caused by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss." The policy's exceptions followed. After the storm, the insureds submitted their claim. Aegis filed suit for declaratory judgment. Aegis relied upon reports that the manufactured home and barn owned by the insureds were damaged by winds, then displaced and destroyed by storm surge associated with the hurricane. The home first sustained damage from the storm's high winds before it was displaced from its concrete piers by a 12 to 16 foot storm surge. 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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Construction Bidding for Success

May 22, 2023 — The Hartford Staff - The Hartford Insights
When construction companies develop a history of successful projects, they often consider bidding on larger projects. However, larger projects can carry greater risks. If your company has successfully completed numerous $10 million projects and is considering a bid on a $100 million project, there are several factors to consider before submitting a proposal. That is because bidding on the wrong project could potentially put you out of business. “When a contractor bids a larger project, there is a greater financial risk,” says Tim Holicky, a senior executive underwriter at The Hartford. There are more subcontractors to manage and additional materials to purchase, which all leads to greater financial risk. Read the court decision
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Reprinted courtesy of The Hartford Staff, The Hartford Insights

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