Fairfield Connecticut Building Expert Directory

Gone Fishing: Tenant’s Insurer Casts A Line Seeking To Subrogate Against The Landlord

October 17, 2022 — William L. Doerler - The Subrogation Strategist
In J&J Fish on Ctr. Str., Inc. v. Crum & Forster Specialty Ins. Co., No. 20-cv-644-bhl, 2022 U.S. Dist. LEXIS 16361, the United States District Court for the Eastern District of Wisconsin (District Court) recognized that “[t]here will be no further fish fries on Center Street until someone pays to repair the collapsed floor at J&J Fish on Center Street, Inc. (J&J Fish).” The contenders were: 1) J&J Fish; 2) its’ insurer, Crum & Forster Specialty Insurance Company (Insurer); and 3) J&J Fish’s landlord, Vision Land, LLC (Vision). Recognizing Insurer’s right to subrogate against Vision based on the terms of the parties’ lease, the District Court held Insurer owed J&J Fish coverage for the losses it sustained, but that Insurer could subrogate against Vision for anything it had to pay J&J Fish. In J&J Fish, Vision and J&J Fish signed a lease (Lease) for a building (the Building) located in Milwaukee, Wisconsin. The Lease required Vision to “purchase and keep in full force and effect on the building(s) . . . insurance against fire and such other risks as may be included in all-risks policies . . .” Vision, however, never obtained any insurance on the Building. Pursuant to the Lease, Vision also agreed to “maintain and repair the structure including the slab floor and exterior walls of the Premises.” With respect to J&J Fish, the Lease required J&J Fish to maintain “Physical Damage insurance, including but not limited to fire . . . and all other risks of direct physical loss as insured . . . for the full replacement cost of all additions, improvements (including leasehold improvements) and alterations to the Premises.” J&J Fish purchased a commercial property and casualty insurance policy (the Policy) from Insurer. The Policy covered “additions, improvements . . . and alterations” as the Lease required. In addition, it insured the Building itself against “collapse,” subject to certain exceptions. Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

OSHA Penalties—What Happened with International Nutrition

April 15, 2015 — Craig Martin – Construction Contractor Advisor
For those of you in and around Omaha, you recall the tragic collapse of International Nutrition’s plant in early 2014, killing two workers and injuring several others. OSHA swept onto the scene and issued citations. Surprisingly, the penalties totaled only $120,000. While a large sum, one would think two deaths and a score of injuries would generate a larger fine. International Nutrition appealed the penalties and they have now been reduced to $78,000, about a 1/3 reduction. Below, I’ll set forth what happened. The Original Penalties International Nutrition was originally fined $120,650.00 for citations ranging from willful, serious, to other-than-serious. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Bad Welds Doom Art Installation at Central Park

October 30, 2013 — CDJ STAFF
Last year, the sculpture “How I Roll” was supposed to be doing its rolling at Central Park from June through August of last year, but the exhibit was taken down a month early, over concerns that the welding had rendered the moving piece “structurally unsound and unsafe.” Now the Public Art Fund is suing the company hired to do the welding. Titon Builders of Lake Park, Florida was supposed to do the welding, but they subcontracted the work to Tru-Steel Corp. of Fort Pierce, Florida. The Public Art Fund is claiming that Titon’s contract obligated them to do the fabrication, not subcontract it. Jeffrey Klein, a lawyer for the Public Art Fund, said, “it’s sad that it had to be taken down because of shoddy workmanship.” Read the court decision
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Can You Really Be Liable For a Product You Didn’t Make? In New Jersey, the Answer is Yes

December 14, 2020 — James Burger & Robert Devine - White and Williams LLP
New Jersey has recently expanded liability for product distributors and manufacturers to products that the distributor/manufacturer did not make or sell. This alert discusses this new law and steps that distributors and manufacturers may consider to reduce their potential liability. In Whelan v. Armstrong International, Inc., the New Jersey Supreme Court held that distributors and manufacturers can be strictly liable for injuries caused by replacement parts added after the point of sale which had not been manufactured or sold by any of the defendants in the case. In Whelan, the defendants’ products had originally been sold with asbestos-containing parts. Mr. Whelan, the plaintiff, argued that asbestos-containing replacement parts were required to repair and maintain the products. The court found that because the products were designed with asbestos-containing parts, “[d]efendants had a duty to provide warnings given the foreseeability that third parties would be the source of asbestos-containing replacement components.” (Emphasis added). This reasoning, based on “foreseeability,” should give pause to all product distributors and manufacturers—even those who do not make or sell products that contain asbestos. Certainly distributors and manufacturers of products with asbestos-containing parts must take heed that they may now be liable for replacement parts that they neither manufactured nor sold. This alone is a significant holding that expands potential liability. Reprinted courtesy of James Burger, White and Williams LLP and Robert Devine, White and Williams LLP Mr. Burger may be contacted at burgerj@whiteandwilliams.com Mr. Devine may be contacted at deviner@whiteandwilliams.com Read the court decision
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Five Actions Construction and Energy Risk Managers Can Take to Avoid the Catastrophic Consequences of a Cyber Attack

June 27, 2022 — Eve-Lynn Gisonni - Saxe Doernberger & Vita
With the ever-increasing usage of technology in the construction and energy industries, risks to business operations have also increased. Property developers and construction contractors rely on electronic data and communications more than ever to streamline projects, ensure efficient and timely supply chain delivery, and facilitate immediate communications between parties. However, with this dependence upon technology comes the heightened risk of cyber criminals frustrating construction operations and driving up costs. Similarly, as the energy sector has grown more dependent upon online networks for deliverables, vulnerabilities have become more pronounced in trades dependent upon electrical grids. When an entire electricity network must be taken offline in defense of a cyber-attack, this impacts countless industries such as hospitals and health care operations, manufacturers and suppliers, and local and interstate traffic systems. Read the court decision
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Reprinted courtesy of Eve-Lynn Gisonni, Saxe Doernberger & Vita
Mr. Gisonni may be contacted at EGisonni@sdvlaw.com

Playing Hot Potato: Indemnity Strikes Again

September 17, 2015 — Garret Murai – California Construction Law Blog
Indemnity can be like playing hot potato (for those of you closer to the Minecraft generation, in the game of hot potato, a metaphoric “hot potato” is tossed between (ahem amongst) players while music is playing, and when the music stops, the player holding the hot potato is out. It’s a barrel of monkeys, trust me.). Anyway, like hot potato, with indemnity an owner typically requires its general contractor to indemnify the owner (sometimes the property owner in TI projects and occasionally design professionals) from and against any and all claims arising out of, related to . . . blah, blah, blah . . . the general contractor’s scope of work . A general contractor in turn will usually require indemnity from its subcontractors. And subcontractors will require indemnity from their sub-subcontractors. And down the line it goes with each party pointing their finger at the next party down the proverbial “food chain.” But it doesn’t always happen that way as the next case, American Title Insurance Company v. Spanish Inn, Case No D067137, California Court of Appeals for the Fourth District (August 14, 2015), illustrates. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Ninth Circuit Rules Supreme Court’s Two-Part Test of Implied Certification under the False Claims Act Mandatory

May 13, 2019 — Meredith Thielbahr - Gordon & Rees Construction Law Blog
For those contractors in the government arena, read on. The False Claims Act (“FCA”) was enacted to deter knowingly fraudulent actions by contractors which resulted in a loss of property to the Government. Intent to defraud with resulting financial hardship was required. Contrary to popular misconception, the statute was not designed to punish all false submissions to the Government simply because those submissions, or claims, are later found to be false. The statute’s inclusion of the requisite element of knowledge is consistent with this notion:

A defendant must submit a claim for payment to the Government;
the claim must be false or fraudulent;
the defendant must have known the claim was fraudulent when it was submitted (also known as scienter); and
the claim must have caused the Government to pay out money.

See 31 U.S.C. § 3729(a). Despite these explicit elements (in addition to common law elements of fraud), over the last two decades, contractors have seen ever-expanding theories of FCA recovery presented by qui tam plaintiffs and the Government. For example, under the FCA, the false “claim” evolved over time: the claim no longer needs to be an express false claim (i.e. the truthfulness of the claim is a direct condition of payment); the claim can be “implied” misrepresentation or “half-truth”. Read the court decision
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Reprinted courtesy of Meredith Thielbahr, Gordon & Rees Scully Mansukhani
Ms. Thielbahr may be contacted at mthielbahr@grsm.com

Appellate Attorney’s Fees and the Significant Issues Test

June 29, 2017 — David Adelstein - Florida Construction Legal Updates
The significant issues test to determine the prevailing party in construction lien actions (which, by the way, also applies to breach of contract actions) applies to appellate attorney’s fees too! Under this test, the trial court has discretion to determine which party prevailed on the significant issues of the case for purposes of attorney’s fees. The trial court also has discretion to determine that neither party was the prevailing party for purposes of attorney’s fees. In a recent decision, Bauer v. Ready Windows Sales & Service Corp., 42 Fla. L. Weekly D1417a (Fla. 3d DCA 2017), there were competing motions for appellate attorney’s fees. Both parties believed they should be deemed the prevailing party under Florida Statute s. 713.29 (statute that authorizes prevailing party attorney’s fees under Florida’s Construction Lien Law). The appellate court held that neither party was the prevailing party under the significant issues test: “[W]e conclude that each party lost on their appeal, while each party successfully defended that part of the judgment in their favor on the other party’s cross-appeal. Because both parties prevailed on significant issues, this Court finds that appellate fees are not warranted for either party.” Bauer, supra. 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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