Fairfield Connecticut Building Expert Directory

Is There a Conflict of Interest When a CD Defense Attorney Becomes Coverage Counsel Post-Litigation?

September 01, 2011 — Chad Johnson of Higgins, Hopkins, McLain & Roswell, LLC

In Weitz Co., LLC v. Ohio Cas. Ins. Co., the U.S. District Court for the District of Colorado was asked to rule on a motion to disqualify counsel in an insurance coverage action. 11-CV-00694-REB-BNB, 2011 WL 2535040 (D. Colo. June 27, 2011). Motions to disqualify counsel are viewed with suspicion, as courts “must guard against the possibility that disqualification is sought to ‘secure a tactical advantage in the proceedings.’” Id. at *2 (citing Religious Technology Center v. F.A.C.T. Net, Inc., 945 F. Supp. 1470, 1473 (D. Colo. 1996).

Weitz Company, LLC (“Weitz”) is a general contractor and defendant in an underlying construction defect suit which had concluded before the action bringing rise to this order. In the underlying action, Weitz made third-party claims against subcontractors, including NPW Contracting (“NPW”). Weitz was listed as an additional insured under NPW’s policies with both Ohio Casualty Insurance Company and Mountain States Mutual Casualty Company (collectively “the Carriers”). The Carriers accepted Weitz’s tender of defense under a reservation of rights. However, neither insurance carrier actually contributed to Weitz’s defense costs in the underlying action. At the conclusion of the construction defect action, the parties unsuccessfully attempted to apportion the attorney’s fees and costs. Eventually, Weitz brought suit against the recalcitrant carriers. The Lottner firm, which had previously represented Weitz in the underlying construction defect action, continued to represent Weitz in this coverage action.

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

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New York Developer gets Reprieve in Leasehold Battle

March 19, 2014 — Beverley BevenFlorez-CDJ STAFF
According to The Real Deal, a “Manhattan Supreme Court judge granted an injunction in favor of Tribeca Mews developer Thurcon Properties, which is fighting to keep the leasehold on several adjacent parcels in connection with a certificate of occupancy.” In 2013, Thurcon Properties was sued by the condo board, who claimed “the certificate of occupancy was pushed back at the building due to a number of construction defects.” The Real Deal further reported that the condo board “claimed the developers sold about 10 units to an outside buyer, and took some of the proceeds for themselves.” Recently, a judge “ordered Feldman Heritage, owner of the ground lease at 125 Church and several adjacent sites, to appear in court on April 30,” because he wants the lease owner “to show why Thurcon should not be given the chance to cure the alleged lease default.” Read the court decision
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How the Jury Divided $112M in Seattle Crane Collapse Damages

April 04, 2022 — Richard Korman - Engineering News-Record
The jury verdict in a wrongful death lawsuit against companies involved in a 2019 Seattle crane collapse that killed four people split damages among three different companies—and also blamed a fourth firm that wasn't a defendant—but not in a way that matched the state safety fines proposed against the firms. Reprinted courtesy of Richard Korman, Engineering News-Record Mr. Korman may be contacted at kormanr@enr.com Read the full story... Read the court decision
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Another Reason to Always Respond (or Hensel Phelps Wins One!)

September 16, 2019 — Christopher G. Hill - Construction Law Musings
Here at Construction Law Musings, Hensel Phelps Construction Co. is best known as the company that got whipsawed between indemnity rules and the lack of a statute of limitations for state agencies. However a recent case out of the Federal District Court for the Eastern District of Virginia gave them a win and illustrates, once again, that failing to appear or respond is never a good option. In Hensel Phelps Construction Co. v. Perdomo Industrial LLC, the Alexandria, VA federal court looked at an arbitration award entered for Hensel Phelps and against Perdomo under the Federal Arbitration Act. The facts of the case showed that Perdomo “double dipped” into the deep end of refusal or failure to respond. First of all, the contract required arbitration and any award was enforceable in any state or federal court having jurisdiction. Based upon this language, Hensel Phelps filed a demand for arbitration with the American Arbitration Association against Perdomo and its surety, AAA sent notice to both Perdomo and Surety, and. . . neither responded or appeared at what was ultimately 8 days of hearings. After hearing Hensel Phelp’s evidence and the total lack of defenses from Perdomo and Surety, the panel issued an award in favor of Hensel Phelps, finding Perdomo LLC in default and holding Perdomo LLC and Allied World jointly and severally liable in the amount of $2,958,209.71 and Perdomo LLC individually liable in the amount of $7,917,666.30 plus interest. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Florida Condo Collapse Shows Town’s Rich, Middle-Class Divide

August 04, 2021 — The Associated Press (Terry Spencer & Freida Frisaro) - Bloomberg
The condo tower collapse in Surfside could exacerbate the division that already exists between the tiny Florida town’s new luxury buildings built for the global elite and those constructed decades ago for the middle class. It is already creating headaches for some small businesses. The town has seen the construction of numerous new condos in recent years, where large oceanfront units exceeding 3,000 square feet (280 square meters) with modern amenities can fetch $10 million and up. Meanwhile, small units of 800 square feet (75 square meters) in neighboring condo buildings constructed decades ago can be had for $400,000. Ana Bozovic, a South Florida real estate broker, said the June 24 collapse of the 40-year-old, middle-class Champlain Towers South will exacerbate this division. At least 46 people were killed and more than 90 remain missing. Read the court decision
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Reprinted courtesy of Bloomberg

New York's New Gateway: The Overhaul of John F. Kennedy International Airport

September 09, 2024 — Aileen Cho - Engineering News-Record
On the cusp of the 70th anniversary of the originally named New York Airport’s opening in Queens, N.Y., a blue-ribbon panel in 2017 released a report to the governor of New York: The facility, once popularly known as Idlewild Airport, needed a comprehensive master plan and a total transformation. In the seven years since, builders at John F. Kennedy International Airport have been anything but idle, and the speed at which that $19-billion transformation of the roads and terminals is occurring could be called wild. Reprinted courtesy of Aileen Cho, Engineering News-Record Ms. Cho may be contacted at choa@enr.com Read the full story... Read the court decision
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An Insurance Policy Isn’t Ambiguous Just Because You Want It to Be

December 20, 2021 — David Adelstein - Florida Construction Legal Updates
When it comes to insurance contracts, there is a rule of law that states, “where interpretation is required by ambiguity in insurance contracts[,] the insured will be favored.” Pride Clean Restoration, Inc. v. Certain Underwriters at Lloyd’s of London, 46 Fla. L. Weekly D2584a (Fla. 3d DCA 2021) (citation and quotation omitted). Stated another way: ambiguities in insurance contracts will be interpreted in favor of the insured and against the insurer. With this rule of law in mind, insureds oftentimes try to argue ambiguity even when there is not one. This was the situation in Pride Clean Construction. In this case, the property insurance policy contained a mold exclusion that stated the policy did NOT insure for “a. loss caused by mold, mildew, fungus, spores or other microorganism of any type, nature, or description including but not limited to any substance whose presence poses an actual or potential threat to human health; or b. the cost or expense of monitoring, testing, removal, encapsulation, abatement, treatment or handling of mold, mildew, fungus, spores or other microorganism as referred to in a) above.” Not only did the policy not insure for loss caused by mold, it went further to state it was NOT insuring for any mold testing or abatement. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Colorado HB 13-1090: Concerning Payment of Amounts Due Under a Construction Agreement

February 21, 2013 — David M. McLain — Higgins, Hopkins, McLain & Roswell, LLC
On January 17, 2013 Representative Fischer introduced House Bill 13-1090 into the Colorado House of Representatives. HB 1090 was assigned the House Business, Labor, Economic and Workforce Development Committee. The bill, sponsored by Senator Tochtrop in the Senate, sets the following requirements for both private and public construction contracts: The owner and contractor must make regular progress payments approximately every 30 days to contractors and subcontractors for work actually performed. To receive the progress payments, the contractor and subcontractor must submit a progress payment invoice plus any required documents. A contractor must pass on the progress payment to the subcontractor within 5 days or by the end of the billing cycle. Interest accrues on unpaid progress payments. A contract may extend a billing cycle to 60 days, but the contract must duly warn of this. Read the court decision
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Reprinted courtesy of David M. McLain
mclain@hhmrlaw.com

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