Fairfield Connecticut Building Expert Directory

Delaware Supreme Court Choice of Law Ruling Vacates a $13.7 Million Verdict Against Travelers

August 07, 2018 — Gregory Capps & Zachery Roth - White and Williams LLP
On July 16, 2018, the Delaware Supreme Court held in Travelers Indemnity Company v. CNH Industrial America, LLC, No. 420, 2017 (Del. Jul. 16, 2018), that a court’s choice of law inquiry in an insurance coverage dispute should focus on the contacts most relevant to the insurance contract rather than the location of the underlying claims. In Travelers, CNH Industrial America, LLC (CNH), sought coverage for asbestos liabilities associated with J.I. Case, Inc., a subsidiary it had acquired, under policies issued to J.I. Case and its former parent company, Tenneco, Inc. The issue before the Delaware Supreme Court was whether the anti-assignment clause in three Travelers policies issued to Tenneco, Inc. precluded the assignment of the policies to CNH. The validity of the assignment turned on which state’s law governed the dispute. (Under Wisconsin law, the parties agreed that the assignment was valid, while under Texas law, the parties agreed the assignment was invalid.) Reprinted courtesy of Gregory Capps, White and Williams LLP and Zachery Roth, White and Williams LLP Mr. Capps may be contacted at cappsg@whiteandwilliams.com Mr. Roth may be contacted at rothz@whiteandwilliams.com Read the court decision
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Beginning of the 2020 Colorado Legislative Session: Here We Go Again

February 10, 2020 — David M. McLain – Colorado Construction Litigation
The 2020 Colorado legislative session started on Wednesday, January 8th. It seems like there will be plenty of issues this year to which home builders will want to pay close attention. On January 13th, Senators Fenberg, Foote, and Jackson sponsored SB 20-093, known as the “Consumer and Employee Dispute Resolution Fairness Act.”

Prohibits the waiver of standards for and challenges for evident partiality prior to a claim being filed and requires any waiver of such provisions after the claim is filed to be in writing;
Provides that the right of a party to challenge an arbitrator based on evident partiality is waived if not raised within a reasonable time of learning of the information leading to the challenge but that such right is not waived if caused by the opposing party;
Establishes ethical standards for arbitrators; and
Requires specified public disclosures by arbitration services providers but includes protections for certain confidential information.

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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

A Court-Side Seat: May Brings Federal Appellate Courts Rulings and Executive Orders

June 29, 2020 — Anthony B. Cavender - Gravel2Gavel
Here are a few interesting new rulings from the federal appellate courts. COURT ORDERS Like a Good Neighbor …? — State of Maryland v. EPA On May 19, 2020, the D.C. Circuit decided a Clean Air Act case involving the use of the “Good Neighbor Provision” of the Act, which is triggered when one state has a complaint about emissions generated in a neighboring upwind state that settle in the downwind state. Here, Maryland and Delaware filed petitions with EPA seeking relief from the impact of emissions from coal-fired power plants that allegedly affect their states’ air quality. EPA largely denied relief, and the court largely upheld the agency’s use and interpretation of the Good Neighbor Provision. The opinion is valuable because of its clear exposition of this complicated policy. A Volatile Underground Issue —Wayne Land and Mineral Group v. the Delaware River Basin Commission Also on May 19, 2020, the U.S. Court of Appeals for the Third Circuit issued a ruling involving the Delaware River Basin Commission. Established in 1961, the Commission oversees and protects the water resources in the Basin. Not long ago, the Executive Director of the Commission, citing a rule of the Commission, imposed very strict limitations on fracking operations in the Basin. This decision has been very controversial with the Third Circuit opining that the Commission’s authority to regulate fracking operations—thought to be a province of state authority—was not clear-cut. In this case, three Pennsylvania state senators filed motions to intervene in the case, but the lower court rejected their request. The Third Circuit has directed the lower court to take another look at their standing to participate in this litigation. This is a volatile issue in Pennsylvania. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Liquidating Agreements—Bridging the Privity Gap for Subcontractors

September 03, 2015 — Craig Martin – Construction Contractor Advisor
What is a subcontractor to do when the owner has demanded additional work, but has refused to pay for it? Typically, a subcontractor cannot sue the owner because the subcontractor doesn’t have a contract with the owner. Perhaps the subcontractor and general contractor should enter into a liquidating agreement through which the general contractor can pursue the claim on behalf of the subcontractor. Liquidating agreements bridge the privity gap between owners and subcontractors who sustain damages because of the others actions. Liquidating agreements or pass-through agreements grant the general contractor a release of its liability to the subcontractor after the general contractor prosecutes the subcontractor’s pass-through claim against the owner and gives the subcontractor any recovery. 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

Recycled Water and New Construction. New Standards Being Considered

September 15, 2016 — Garret Murai – California Construction Law Blog
The second a series of stockholder meetings will be held on August 30, 2016 in Sacramento, California to consider proposed amendments to the state building code for the installation of recycled water systems for newly constructed single-family, multifamily, commercial and public buildings. 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

Could You Be More Specific . . . About My Excess AI Coverage?

February 23, 2017 — Yas Omidi - California Construction Law Blog
Are you a general contractor who is pretty sure that you have additional insured coverage for some stuff under your sub-subcontractor’s excess policy? Advent, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, Case No. H041934 (December 6, 2016) warns you to be a little more specific. Johnson Western Gunite was the shotcrete sub-subcontractor on a job. One of its employees—specifically, Jerry Kielty—tumbled down a stairwell, sustaining severe bodily injury thereby. Kielty filed suit against the general contractor in charge of the job—Advent, Inc.—amongst others. Kielty did not name his employer Johnson in the suit. In terms of insurance: Advent was insured under a primary insurance policy issued by Landmark American Insurance Company and an excess policy issued by Topa Insurance Company. Read the court decision
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Reprinted courtesy of Yas Omidi, Wendel Rosen Black & Dean LLP
Ms. Omidi may be contacted at yomidi@wendel.com

New Opportunities for “Small” Construction Contractors as SBA Adjusts Its Size Standards Again Due to Unprecedented Inflation

September 11, 2023 — Hanna Lee Blake - ConsensusDocs
Thanks to the SBA’s November 17, 2022 adjustments to the size standards and monetary thresholds, a number of construction contractors will be able to retain their “small” status, and more contractors may benefit from federal assistance, programs, and contracts earmarked for “small” concerns. In the SBA’s view, small businesses should not lose their “small” status due solely to price level increases rather than from increases in business activity. It is anticipated that federal agencies may choose to set aside more construction contracts for competition among small businesses given the greater number of businesses that may be deemed “small” as a result of the SBA’s recent rule. In light of this, small construction contractors should consider whether it is prudent to register or update their existing profiles in the System for Award Management (SAM) to participate in federal contracting. The SBA’s Statutory Mandate The Small Business Act of 1953 (P.L. 83-163, as amended) authorized the SBA and justified the agency’s existence on the grounds that small businesses are essential to the maintenance of the free enterprise system. The congressional intent was to assist small businesses as a means to deter monopoly and oligarchy formation within all industries and the market failures caused by the elimination or reduction of competition in the marketplace. Congress delegated to the SBA the responsibility to establish size standards to ensure that only small businesses were provided SBA assistance. Since that time, the SBA has analyzed various economic factors, such as each industry’s overall competitiveness and the competitiveness of firms within each industry, to set its size standards. Read the court decision
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Reprinted courtesy of Hanna Lee Blake, Watt Tieder
Ms. Blake may be contacted at hblake@watttieder.com

Contractual Indemnification Limitation on Florida Public Projects

July 28, 2016 — David Adelstein – Florida Construction Legal Updates
Construction contract indemnification provisions are governed under Florida Statute s. 725.06. This is a very important statute to know if you are drafting indemnification provisions for any type of construction contract. (There is also Florida Statute s. 725.08 that discusses indemnification provisions applicable to design professionals that is also worth knowing.) Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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