Fairfield Connecticut Building Expert Directory

Intentional Mining Neighbor's Property is Not an Occurrence

October 30, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Kentucky Supreme Court determined there was no coverage when the insured was sued for mineral trespass. Am. Mining Ins. Co. v. Peters Farms, LLC, 2018 Ky. LEXIS 287 (Ky. Aug. 16, 2018). Beginning in 2007, Ikerd Mining. LLC removed 20,212 toms of coal from land belonging to Peters Farms, LLC. Of that amount, 10,012 tons were wrongfully mined under Ikerd's alleged mistaken belief as to the correct location of Peters' boundaries. The other 1,200 tons were mined by Ikerd knowing that the land thereunder belonged to Peters, but pursuant to a disputed oral lease agreement between the two. Peters claimed that the lease was an ongoing negotiation that was never finalized. 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

New Index Tracking Mortgages for New Homes

June 18, 2014 — Beverley BevenFlorez-CDJ STAFF
The National Association of Home Builders’ Eye on Housing reported that the Mortage Bankers Association (MBA) completed their Builder Application Survey (BAS), which demonstrated that “mortgage applications for new home purchases decreased by a not seasonally adjusted monthly rate of 8.4% in May 2014. However, on a 12-month basis, mortgage applications for new home purchases in May 2014 were 4.9% higher than their level in May 2013.” According to Eye on Housing, “This is the fifth consecutive month of year-over-year increases in mortgage applications for new home purchases.” Read the court decision
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Real Property Alert: Recording Notice of Default as Trustee Before Being Formally Made the Trustee Does Not Make Foreclosure Sale Void

February 18, 2015 — Krsto Mijanovic and Annette F. Mijanovic – Haight Brown & Bonesteel LLP
In Ram, et al. v. OneWest Bank, FSB, et al. (filed 2/6/15, No. A139055), the California Court of Appeal held that a nonjudicial foreclosure sale is not void merely because the notice of default was recorded by an entity who had not yet been substituted as trustee. The court also held that because the sale was voidable, rather than void, the plaintiffs were required to allege an ability and willingness to tender their debt in addition to alleging that they were prejudiced by the irregularity in the foreclosure process. Plaintiffs were borrowers who purchased a home subject to a deed of trust. After they defaulted on their loan, nonjudicial foreclosure proceedings were initiated, and the beneficiary of the deed of trust, OneWest Bank, FSB ("OneWest"), purchased the property at the foreclosure sale. Plaintiffs sued OneWest and other entities for wrongful foreclosure, alleging that the sale was void because the entity identified as the trustee on the notice of default, Aztec Foreclosure Corporation ("Aztec"), had not been formally substituted as trustee until after the notice of default was recorded. The trial court sustained OneWest's demurrer and plaintiff appealed. Reprinted courtesy of Krsto Mijanovic, Haight Brown & Bonesteel LLP and Annette F. Mijanovic, Haight Brown & Bonesteel LLP Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com Ms. Mijanovic may be contacted at amijanovic@hbblaw.com Read the court decision
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Traub Lieberman Attorneys Recognized as 2021 Top Lawyers by Hudson Valley Magazine

February 08, 2021 — Traub Lieberman
Thirteen Traub Lieberman attorneys have been named 2021 Top Lawyers by Hudson Valley magazine. The honored attorneys represent the firm's Hawthorne New York office and six practice areas. Hudson Valley magazine uses online peer-voting and an internet search process to select outstanding lawyers from more than 30 practice areas, who have attained a high degree of peer recognition and professional achievement. "We are very proud of all of our attorneys for being recognized as among the top lawyers in the Hudson Valley,” said Partner and Vice-Chair Lisa Shrewsberry. Related Attorneys: Sara Kiridly, Mario Castellitto, Colleen E. Hastie, Timothy G. McNamara, Robert S. Nobel, Richard J. Rogers, Adam Krauss, Taylor C. Eagan, Stephen D. Straus, Lisa L. Shrewsberry, Lisa M. Rolle, Jonathan R. Harwood, Hillary J. Raimondi Read the court decision
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Reprinted courtesy of Traub Lieberman

Montana Supreme Court: Insurer Not Bound by Insured's Settlement

December 02, 2019 — K. Alexandra Byrd - Saxe Doernberger & Vita, P.C.
In Draggin’ Y Cattle Co., Inc. v. Junkermier, et al.1 the Montana Supreme Court held that where an insurer defends its insured and the insured subsequently settles the claims without an insurer’s participation, a court may approve the settlement as between the underlying plaintiff and underlying defendant, but the settlement will not be presumed reasonable as to the insurer. Therefore, an insurer who defends its insured cannot be bound by a stipulated settlement that the insurer did not expressly consent to. The case involved Draggin’ Y Cattle Company (the “Cattle Company”), a ranching and cattle business that utilized the services of an accounting firm, Junkermier, Clark, Campanella, Stevens, P.C. (“Junkermier”), to structure the sale of real property to take advantage of favorable tax treatment. It was discovered that Junkermier’s employee misinformed the Cattle Company’s owners of the tax consequences of the sale. The Cattle Company’s owners subsequently filed suit against Junkermier and its employee and alleged nearly $12,000,000 in damages due to the error. Junkermier’s insurer, New York Marine, provided a defense for Junkermier and its employee. The Cattle Company’s owners offered to settle the claims against Junkermier and its employee for $2,000,000, the policy limit of the New York Marine policy. New York Marine refused to give its consent or tender the policy’s limit. Subsequently, Junkermier, its employee, and the Cattle Company entered into their own settlement agreement for $10,000,000. The settlement was contingent upon a reasonableness hearing to approve the stipulated agreement. Read the court decision
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Reprinted courtesy of K. Alexandra Byrd, Saxe Doernberger & Vita, P.C.
Ms. Byrd may be contacted by kab@sdvlaw.com

Pensacola Bridge Halted Due to Alleged Construction Defects

July 21, 2018 — David Suggs – Bert L. Howe & Associates, Inc.
The Pensacola News Journal reported that cracks were discovered again in the Pensacola Bay Bridge, which caused construction of said bridge to be halted once more: “Cracks found in a portion of the concrete in the Pensacola Bay Bridge project have twice halted construction in the last several months, raising concerns about oversight and disclosure from the state, particularly in light of the Miami bridge collapse earlier this year.” The Florida Department of Transportation stated “that the cracks were found during a routine visual inspection of newly placed concrete in March,” according to the Pensacola News Journal. The $400 million project began in 2017 and was scheduled to be completed by 2020. Read the court decision
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New Mexico Holds One-Sided Dispute Resolution Provisions Are Unenforceable

November 05, 2024 — Bill Wilson - Construction Law Zone
Dispute resolution provisions that grant one party the unilateral right to choose either litigation or arbitration to resolve disputes are common in the construction industry. The main difference between the two forums is that courts are more likely to strictly enforce contract terms as written as well as the applicable law, while arbitrators make decisions on more equitable considerations, untethered to the contract terms and—to some degree—the law. The party with the sole discretion to select the dispute resolution procedure can select the process most beneficial to its interests based on the nature of the dispute, regardless of who brings the claims. In Atlas Electrical Construction, Inc. v. Flintco, LLC, 550 P.3d 881 (N.M. Ct. App. 2024), the Court of Appeals of New Mexico recently held that an arbitration provision in a subcontract, under which the contractor retained the exclusive right to choose whether disputes arising under the subcontract were litigated in court or arbitrated was unreasonably one-sided, substantively unconscionable, and unenforceable. The Atlas Electrical case involved two sophisticated entities with equal bargaining strength to negotiate the terms of a subcontract. The parties agreed to a subcontract provision which provided in the relevant part:

In the event [contractor] and [subcontractor] cannot resolve the dispute through direct discussions or mediation … then the dispute shall, at the sole discretion of [contractor], be decided either by submission to (a) arbitration … or (b) litigation …

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Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

The “Your Work” Exclusion—Is there a Trend against Coverage?

September 10, 2014 — Craig Martin – Construction Contractor Advisor
Two more courts have weighed in on the “your work” exclusion in commercial general liability (CGL) policies, finding that contractors did not have coverage for work performed improperly. These cases highlight that whether you have coverage for poor workmanship will depend on the state’s law applied. It now appears that if you are in South Carolina or Massachusetts, you will not have coverage. The South Carolina case, Precision Walls, Inc. v. Liberty Mutual Fire Insurance Company, involved a subcontractor hired to tape insulation. After taping the insulation, a brick veneer was installed on the exterior. During the brick installation, the mason reported that the tape was losing its adhesion and the subcontractor was instructed to repair the problem. In order to access the tape, portions of the brick veneer had to be removed and re-installed. The subcontractor then sought coverage for the costs associated with repairing the tape. The insurer denied coverage and the subcontractor sued its insurer. The court ruled in favor of the insurer, finding that the defective tape was “your work” because it was “material furnished in connection” with the subcontractor’s work. The policy specifically excluded from coverage damage to property caused by “your work”. Thus, there was no coverage for the subcontractor. 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

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