FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Exclusions Bar Coverage for Damage Caused by Chinese Drywall

July 05, 2011 — Tred R. Eyerly

The insured homeowners were unsuccessful in arguing around the policy's exclusions when seeking coverage for damage caused by Chinese drywall. Ross v. C. Adams. Constr. & Design, L.L.C., 2011 La. App. LEXIS 769 (La. Ct. App. June 14, 2011).



Before the insureds purchased and moved into their home, it was renovated. After moving in, the insures discovered foreign gypsum drywall, or Chinese drywall. The insureds submitted a claim to Louisiana Citizens Property Insurance Company. In an investigation, the insurer confirmed the presence of Chinese drywall and damage to the metal surfaces caused by corrosion. Louisiana Citizens refused coverage and the insureds sued. The trial court denied the insured's motion for summary judgment and granted summary judgment to Louisiana Citizens.



The court of appeal affirmed. Initially, the court determined the insureds sustained a direct physical loss. The inherent qualities of the Chinese drywall created a physical loss to the home and required that the drywall be removed and replaced.



Four exclusions, however, barred coverage. First, damages due to faulty or defective materials were excluded from coverage. The Chinese drywall emitted high levels of sulfuric gas which caused the damage to the insured's plumbing, electrical wiring and metal components.



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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Washington Supreme Court Expands Contractor Notice Obligations

November 28, 2018 — Brett M. Hill - Ahlers Cressman & Sleight Blog
The Washington State Supreme Court dealt another blow to public works contractors in Washington State. In a case recently issued by the court, Nova Contracting, Inc. v. City of Olympia, [1] the court expanded contractors’ obligations when providing notice on public works construction projects. The Nova Contracting case was the subject of a previous blog. The case involved Nova Contracting and the City of Olympia. Nova was the low bidder on the contract. Nova alleged that the City of Olympia did not want Nova to win the job and intentionally hindered Nova’s ability to perform the job. The facts alleged by Nova, which were covered in the previous blog, involved the City’s improper and apparently punitive rejection of submittals on the job and the City’s eventual wrongful termination of Nova. Of significance in the case is that Nova never actually began work on the job. All that Nova had done at the time of termination was begin mobilizing its equipment on site. The Court of Appeals found that Nova had alleged sufficient facts to establish that the City violated the duty of good faith and fair dealing by improperly rejecting Nova’s submissions and had breached the contract with Nova by improperly terminating. Read the court decision
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Reprinted courtesy of Brett M. Hill, Ahlers Cressman & Sleight PLLC
Mr. Hill may be contacted at brett.hill@acslawyers.com

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Couple Perseveres to Build Green

August 27, 2013 — CDJ STAFF
Most homeowners don’t want to make their way through the mountain of paperwork required for LEED certification. But according to the Patriot News, Jens and Donna Damgaard aren’t most homeowners. The Damgaards set out to build a LEED-certified home, and struck with it to the end. The Damgaards started out by assembling a team so there wouldn’t be any questions down the road. They also kept going green as a goal, no matter what. Don Park, their contractor, said that “it worked out well. There was never a cost issue.” Jens Damgaas is an attorney in Harrisburg, and he put his skills as a lawyer to work in going through the paperwork, as if he were the projet’s LEED consultant. One further takeaway from the contractor, “everyone wants two-button toilets.” Read the court decision
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The Importance of the Recent Amendment to Rule 702 of the Federal Rules of Evidence

January 22, 2024 — Andrew G. Vicknair - The Dispute Resolver

Every litigator understands that expert witnesses play a key role in litigation, especially when dealing with construction issues. Expert testimony at trial can be a deciding factor in persuading a judge or jury in your client’s favor. It is so important that, as parties get closer to trial, litigators often spend considerable time filing motions to limit or disqualify certain aspects of expert testimony in an effort to gain an advantage at trial. Because experts are a key aspect of the trial process, it is important to understand the various rules governing use of expert testimony, primarily Rule 702 of the Federal Rules of Evidence.

On December 1, 2023, amendments to Rule 702 of the Federal Rules of Evidence went into effect which added the language in underline below and removed the language which is crossed out:

Rule 702. Testimony by Expert Witness

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

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Reprinted courtesy of Andrew G. Vicknair, D'Arcy Vicknair, LLC
Mr. Vicknair may be contacted at agv@darcyvicknair.com

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BOOK CLUB SERIES: Everything You Want to Know About Construction Arbitration But Were Afraid to Ask

October 30, 2023 — Marissa L. Downs - The Dispute Resolver
I recently had the pleasure of speaking with construction law notables John Foust and Andy Ness to discuss the release of their new book—Construction Arbitration: The Advocate’s Practical Guide. The goal of their book: to teach attorneys what they need to know to maximize their effectiveness in the arbitration context. To that end, the book covers every aspect of the arbitration process including motion practice, conduct as an advocate, presentation of the case, and post-hearing submissions. Read on for Andy and John’s candid, behind-the-scenes take on how this book came to be and why you should get your copy now, while supplies last! Q: Who is the target audience for this book? Andy: In the editing process (and in writing my own chapter on Navigating an International Construction Arbitration) I pretended that I was speaking with a construction lawyer who was a few years out of law school, with some litigation experience, who was getting ready to take on a significant and complex construction arbitration for the first time. The book presupposes knowledge of the basics and tries to anticipate the questions that would be asked when you are trying to think through the whole arbitration process from start to finish. What should my pleadings look like? How much discovery am I likely to be able to obtain? How should my demeanor be different from what I would do in a courtroom? How much should I object during the hearing? In a nutshell, it’s “What do I need to know to maximize my chances of success in the arbitration setting?” Read the court decision
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Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP
Ms. Downs may be contacted at mdowns@lauriebrennan.com

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A Lien Might Just Save Your Small Construction Business

April 04, 2011 — Douglas Reiser, Builders Council Blog

Many owners incorrectly believe that payment to the general contractor gets the owner off the hook for payment to subcontractors and suppliers. This assumption sometimes fosters the irresponsible owner, who fails to ensure that everyone is getting paid. Fortunately for those contractors further down the contracting chain, this assumption is incorrect.



Suppliers and subcontractors can file a lien to secure payment for their labor and materials. A filing party must offer proper notice (if applicable) and file an adequate and timely lien in the County where the work is performed. You can read our earlier posts on these topics by following this link.



A lien notice and a lien put an owner on notice that your business has provided labor and/or materials for the improvement of the owner’s property (See RCW 60.04.031 for more info). If the owner fails to take care to ensure that your business is paid the law mandates that the owner may have to pay twice.



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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com

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Communications between Counsel and PR Firm Hired by Counsel Held Discoverable

March 22, 2017 — Kevin R. Crisp, David W. Evans, & Sarah A. Marsey – Haight Brown & Bonesteel LLP
Counsel handling cases involving newsworthy facts and litigation often hire public relations (“PR”) consultants. In Nicholas Behunin v. The Superior Court of Los Angeles County, 2017 DJDAR 2405 (No. B272225 March 14, 2017) the California Court of Appeal, Second District, denied a petition for writ of mandate concerning a trial court discovery order holding that communications between a plaintiff’s attorney and a public relations firm counsel hired for the purpose of creating a website for the Plaintiff were discoverable, despite claims that such communications were protected from disclosure by attorney-client privilege. Plaintiff sued Defendants -- (the) Charles Schwab and his son Michael Schwab -- over an unsuccessful real estate investment. Plaintiff’s attorneys hired a public relations consultant to create a website (www.chuck-you.com) that sought to link the Schwabs with the late Indonesian dictator Suharto’s family. The court succinctly described the web site as “a social media campaign to induce the Schwabs to settle the case.” Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Kevin R. Crisp, David W. Evans and Sarah A. Marsey Mr. Crisp may be contacted at kcrisp@hbblaw.com Mr. Evans may be contacted at devans@hbblaw.com Ms. Marsey may be contacted at smarsey@hbblaw.com Read the court decision
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Colorado Court of Appeals holds that insurance companies owe duty of prompt and effective communication to claimants and repair subcontractors

March 01, 2011 — Colorado Construction Litigation

In Dunn v. American Family Insurance, 09CA2173, 2010 WL 4791948 (Colo. App. Nov. 24, 2010), the Dunns reported a claim to American Family on their homeowners insurance policy after sewer and water backup caused sewage to flood their basement. American Family gave the Dunns contact information for a contractor (ICA) to remediate the flooding. However, ICA was unsuccessful and sewage began to infiltrate the Dunns’ HVAC system. Subsequently, black mold was detected in the HVAC system, the Dunns suffered health and respiratory problems, and they soon after vacated the home. The Dunns hired and fired two more contractors for unsatisfactory work throughout the winter before hiring a fourth to finish the job. Because the home remained vacant and unheated throughout the winter, the water pipes ruptured. The mold spread throughout the entire home and all of the contents needed to be replaced, which amounted to a claim of $340,000 on the policy.



American Family agreed to pay the full $340,000. However, the Dunns brought suit claiming that American Family breached the implied duty of good faith and fair dealing by: 1) failing to screen ICA for expertise; 2) failing to screen ICA for liability insurance coverage; 3) failing to monitor ICA’s work; 4) failing to advise them that flooding can cause further damage, including freezing pipes and mold; and, 5) failing to adequately and promptly communicate with them and remediation subcontractors in the course of investigating and handling their claim.The trial court found no duty owed by American Family beyond adjustment and timely payment of claims. Because American Family paid timely and in full, they dismissed all of the Dunns’ claims. However, the Court of Appeals reversed in part.



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Reprinted courtesy of Chad Johnson, Higgins, Hopkins, McLain & Roswell, LLC. Mr. Johnson can be contacted at johnson@hhmrlaw.com

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