Fairfield Connecticut Building Expert Directory

Eleventh Circuit Finds Professional Services Exclusion Applies to Construction Management Activities

April 29, 2024 — Ashley Kellgren - Traub Lieberman Insurance Law Blog
In Colony Ins. Co. v. Coastal Constr. Mgmt., LLC, 2024 U.S. App. LEXIS 4809 (11th Cir. Feb. 29, 2024), the Eleventh Circuit found the insurer had no duty to defend or indemnify its insured based on a professional services exclusion. In that case, the underlying claims arose out of the construction of a four-story apartment complex. The owner and project developer contracted with the insured to provide construction management services as a construction manager and construction consultant. Several years after the project was completed, the owner filed suit against the architect, general contractor, and the insured alleging numerous defects and deficiencies with respect to the project. The owner asserted claims against the insured for breach of contract and negligence, alleging various failures by the insured in connection with its supervision of construction and failures to properly and timely complete the project, and correct inadequate, defective, and noncomplying work. Colony issued two commercial general liability policies to the insured, both of which contained a professional services exclusion. Although the policy did not expressly define “professional services,” the professional services exclusion provided a non-exhaustive list of examples, including: (2) preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications; Read the court decision
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Reprinted courtesy of Ashley Kellgren, Traub Lieberman
Ms. Kellgren may be contacted at akellgren@tlsslaw.com

Florida Condos Bet on Americans Making 50% Down Payments

October 29, 2014 — John Gittelsohn – Bloomberg
Jorge Perez crashed along with the real estate market, then regained his crown as Florida’s “Condo King” by building new projects with 50 percent deposits from foreign buyers. Now, for his next development, he’s looking to wealthy Americans. In December, he’ll begin marketing the Auberge Beach Residences and Spa Fort Lauderdale, a $500 million oceanfront project 35 miles (56 kilometers) north of Miami. He expects as many as two-thirds of the buyers to come from the U.S. or Canada. All future owners must pay hefty deposits to finance construction by Perez’s Related Group, Fortune International Group and Fairwinds Group in a partnership that the companies plan to announce tomorrow. “The U.S. buyers have made up an increasing share of luxury beachfront condominiums and, like our foreign buyers, they have shown little resistance to larger deposits,” Perez said in an e-mail. “Most feel that if they can’t put a 50 percent down payment, they probably should not be buying.” Read the court decision
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Reprinted courtesy of John Gittelsohn, Bloomberg
Mr. Gittelsohn may be contacted at johngitt@bloomberg.net

Surplus Lines Carriers Cannot Compel Arbitration in Louisiana

May 29, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The court denied the surplus lines insurer's motion to compel arbitration based on Lousiana's law prohibiting arbitrations of coverage disputes. Fairway Village Condominiums v. Independent Spec. Ins. Co., 2023 U.S. Dist. LEXIS 62135 (E.D. La. April 20, 2023). The plaintiff's condominium complex was damaged by Hurricane Ida. A claim was filed with the insurer. The insurer made an initial advance payment of $200,000. Three additional payments were made bringing the total to $951,462.49, which was less than half of the proof of loss amounts submitted by plaintiff. Plaintiff sued the insurer for breach of contract and bad faith. The insurer filed a motion to compel arbitration based upon an arbitration provision in the policy. Recognizing that Louisiana law prohibited enforcement of a policy's arbitration clause, the insurer argued it did not apply because it was a surplus lines carrier. 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

Construction Employers Beware: New, Easier Union Representation Process

October 17, 2023 — Natale V. DiNatale - Robinson+Cole
This week we are pleased to have a guest post by Robinson+Cole Labor Relations Group chair Natale V. DiNatale. The NLRB has reversed decades of precedent and made it far easier for unions to represent employees, including construction employers, without a secret ballot election. Initially, it is important to understand that this new standard applies to traditional “9(a)” relationships, not prehire agreements under 8(f) of the NLRA. While both types of relationships exist in the construction industry, 9(a) relationships require support from a majority of employees, while prehire agreements do not and tend to be project specific. The NLRB’s new standard (announced in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023)) emphasizes union authorization cards that are gathered by union officials and union activists who often employ high-pressure tactics to obtain a signature. Employees often sign authorization cards without the benefit of understanding the significance of the cards. Even if they don’t want a union, they may sign because they feel pressured by a coworker, don’t want to offend a colleague, or want to avoid being bothered. Read the court decision
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Reprinted courtesy of Natale V. DiNatale, Robinson+Cole
Mr. DiNatale may be contacted at ndinatale@rc.com

Wisconsin Court of Appeals Holds Economic Loss Doctrine Applies to Damage to Other Property If It Was a Foreseeable Result of Disappointed Contractual Expectations

January 15, 2019 — Gus Sara - The Subrogation Strategist
In Kmart Corp. v. Herzog Roofing, Inc., 2018 Wisc. App. Lexis 842, the Court of Appeals of Wisconsin considered whether the economic loss doctrine barred the plaintiff’s negligence claims against the defendant roofer for damages resulting from the collapse of a roof. The Court of Appeals held that, while some of the plaintiff’s property damages were unrelated to the scope of the contract, the economic loss doctrine still applied to those damages because they were a foreseeable result of the defendant’s breach of the contract. This case establishes that in Wisconsin, the economic loss doctrine bars tort claims for damage to property unrelated to the contract if those damages were a reasonably foreseeable risk of disappointed expectations of the contract. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams LLP
Mr. Sara may be contacted at sarag@whiteandwilliams.com

ACS Obtains Overwhelming Jury Trial Victory for General Contractor Client

March 28, 2022 — Scott R. Sleight - Ahlers Cressman & Sleight PLLC
ACS is pleased to share news of our recent $19.2 million victory for a general contractor client after a lengthy virtual jury trial involving the Nexus condominium project in downtown Seattle. On Tuesday March 22, 2022, ACS obtained a jury verdict awarding significant damages to our general contractor client and denying nearly all damages claimed against our client by the project owner. The 28-day jury trial commenced via Zoom on January 24 and involved testimony from more than two dozen witnesses on more than 185 discrete change issues and subcontractor pass-through claims as well as counterclaims from the owner for liquidated damages and other damages. Amazingly, after only two days of deliberating the jury reached a verdict resolving all claims overwhelmingly in favor of our general contractor client. Our client was awarded $19.5 million on its claims totaling $20.6 million and largely defeated the owner’s counterclaims of $4.3 million, with the jury awarding only $318,000 to the owner. This results in a net judgment of $19.2 million in favor of our client. The ACS team, along with the client, worked incredibly hard on this case. The team includes lawyers Scott Sleight, Saki Yamada, Kristina Southwell, Cam Sheldon and paralegals Christina Granquist, Cydney Fermstad, Auzree Hightower, Amy Capell, Samina Helsley and Bernadette Bresee. Read the court decision
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Reprinted courtesy of Scott R. Sleight, Ahlers Cressman & Sleight PLLC
Mr. Sleight may be contacted at scott.sleight@acslawyers.com

Philadelphia Proposed Best Value Procurement Bill

December 08, 2016 — Wally Zimolong – Supplemental Conditions
An opinion piece in today’s Philadelphia Inquirer concerning proposed legislation that would change the way the City of Philadelphia awards public construction projects is causing quite a stir. The article concerns legislation that would allow the City to award public construction contracts based on a “best value” approach rather than the current requirement that the contract be awarded to the lowest responsible and responsive bidder. The author worries that by removing the current objective criteria and replacing it with subjective ones, contracts can be steered to politically favored contractors. The author cites the recent no-bid contract awarded to a law firm run by the friend of Mayor Jim Kenney as an example of the chaos would ensue if this bill was passed. Considering that the Bill’s sponsor, Bobby Hennon, is under FBI investigation, and some of the Mayor’s biggest supporters are as well, the author has ever right to be concerned. However, article comes up short in explaining what the Bill says and what best value procurement, if adopted, would mean for public construction work in Philadelphia. First, the Bill that Councilman Hennon is proposing is actually a Bill that would make the best value procurement question a ballot question next November. In other words, the Bill, if passed, would but to a City wide vote the question of whether the City should change it procurement practices to permit the best value approach to be used in addition to the low bid approach that is current used. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Recent Changes in the Law Affecting Construction Defect Litigation

October 19, 2017 — David M. McLain - Colorado Construction Litigation
On May 23, 2017, Governor Hickenlooper signed HB17-1279 into law. The bill states that before an HOA’s executive board can institute a construction defect action, it must provide notice of the anticipated commencement of the action to each of the HOA’s unit owners, along with certain disclosures about the anticipated action. The bill also requires that the HOA executive committee convene a meeting of the unit owners to consider the action, and that the construction professionals against which the claim is being brought have the opportunity to address the members of the HOA. The bill also states that the HOA executive committee may only initiate a construction defect action if it is approved by “owners of units to which a majority of votes in the association are allocated.” Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

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