FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Mind Over Matter: Court Finds Expert Opinion Based on NFPA 921 Reliable Despite Absence of Physical Testing

September 12, 2022 — Gus Sara - The Subrogation Strategist
In Smith v. Spectrum Brands, Inc., 2022 U.S. Dist. LEXIS 142262, the United States District Court for the Eastern District of Pennsylvania (District Court) considered whether the plaintiffs’ liability expert met the requirements of Rule 702 of the Federal Rules of Evidence and could testify that a filter pump for an aquarium tank was defectively designed and caused a fire at the plaintiffs’ home. The defendant filed a motion to exclude the plaintiffs’ liability expert on grounds that the expert’s opinion did not satisfy the reliability element of Rule 702 because the expert never conducted physical testing on the filter pump. The court found that the cognitive testing employed by the expert through various methods, including visual inspections of the evidence, a review of photographs of the scene and literature from the manufacturer, and research on similar products, was sufficiently reliable to admit his opinion. The Smith case involved a civil action brought by Jeanette Scicchitano Smith and Alexander Smith that arose from a 2019 fire at their residence in Lincoln University, Pennsylvania. The fire purportedly started in a filter pump, which was operating at the time of the fire, that the plaintiffs purchased in 2002 as part of an aquarium tank kit. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Court Bars Licensed Contractor From Seeking Compensation for Work Performed by Unlicensed Sub

June 06, 2022 — Garret Murai - California Construction Law Blog
It all started with a tree. A eucalyptus tree to be exact. What followed is one of the more important cases to be decided under Business and Professions Code section 7031 in recent years. Yes, that Section 7031. The statute variously described by the state’s courts as “harsh[ ],” draconian” and “unjust,” but, importantly, nevertheless valid. Under Section 7031, an unlicensed contractor is barred from seeking compensation for work requiring a contractor’s license. This has been called the “shield.” However, in addition to the “shield,” project owners can also employ Section 7031’s “sword,” and seek disgorgement of all monies paid to an unlicensed contractor. Section 7031’s “shield” and “sword” applies even if the project owner knew that the contractor was unlicensed. They also apply even if the unlicensed contractor’s work was flawless. And they also apply even if a contractor was unlicensed during a portion of its work. This is because, as courts have stated, Section 7031 is a consumer protection statute intended to protect the public from unlicensed contractors and applies irrespective of the equities. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Difficulty in Defending Rental Supplier’s Claim Under Credit Application

October 11, 2021 — David Adelstein - Florida Construction Legal Updates
In construction, one of the easiest claims to prove from a burden of proof standpoint is that of a supplier, particularly a rental equipment supplier. Oftentimes, these claims are more in the realm of a collection claim because a rental supplier will generally be able to establish that a party opened an account with them, signed a credit application and personal guaranty, and equipment was rented and even delivered to a specific jobsite during set dates. Defending these claims is not so easy. And even if there is a defense as it relates to some amounts, there needs to be an upside challenging those amounts when factoring in the attorney’s fees, costs, and interest on the other amounts and on continuing the dispute. An example of the difficulty in defending these claims from rental suppliers can be found in the recent case of Custom Design Expo, Inc. v. Synergy Rents, Inc., 2021 WL 4125806 (Fla. 2d DCA 2021). Here, a contractor rented equipment (e.g, forklifts) from a supplier. The equipment was rented on an open account and the contractor signed a personal guaranty. The supplier sued the contractor for about $81,000 that remained unpaid. The supplier appeared to waste no time and moved for summary judgment with an affidavit from its credit manager. The credit manager affirmed that the contractor executed a credit application for purposes of renting equipment on an open account, the application contained a personal guaranty, and the credit application formed the basis of a contract. The credit manager authenticated the credit application and affirmed that the contractor owed it about $81,000 in unpaid amounts for rental equipment that was furnished under the credit application. 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

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The Latest News on Fannie Mae and Freddie Mac

May 01, 2014 — Beverley BevenFlorez-CDJ STAFF
The Federal Housing Finance Agency released a report on April 30th, which stated that in a severe economic downturn Fannie Mae (FNMA) and Freddie Mac (FMCC) “could require an additional bailout of as much as $190 billion… according to the results of stress tests,” according to Clea Benson writing for Bloomberg. “These results of the severely adverse scenario are not surprising given the company’s limited capital,” FNMA Senior Vice President Kelli Parsons said in a statement, as reported by Benson published in Bloomberg. “Under the terms of the senior preferred stock purchase agreement, Fannie Mae is not permitted to retain capital to withstand a sudden, unexpected economic shock of the magnitude required by the stress test.” Furthermore, in another Bloomberg article, Cheyenne Hopkins and Clea Benson reported that Democrats remain divided on how to replace FNMA and FMCC. “If we don’t get this right, we’ll create major disturbances in the housing market which will have a profound impact on families, on homeownership and certainly on our national economy,” Oregon Democrat Jeff Merkley said in an interview, as reported by Cheyenne and Benson. “Merkley described himself as ‘still in negotiations’ with the bill’s sponsors.” Read the full story, Clea Benson Article... Read the full story, Cheyenne Hopkins & Clea Benson Article... Read the court decision
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California’s One-Action Rule May Apply to Federal Lenders

June 09, 2016 — Anthony J. Carucci – Snell & Wilmer Real Estate Litigation Blog
California’s one-action rule provides that “[t]here can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein . . . .” Cal. Code Civ. Proc. § 726(a). In other words, the one-action rule prescribes that the only process for recovery of a debt secured by a mortgage or deed of trust is to foreclose on the lien. The rule aims to prevent a multiplicity of actions and vexatious litigation, and to force a beneficiary to look to all of the security as the primary fund for payment of a debt before looking to the trustor’s other assets. Read the court decision
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Reprinted courtesy of Anthony J. Carucci, Snell & Wilmer
Mr. Carucci may be contacted at acarucci@swlaw.com

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South Carolina Supreme Court Asked Whether Attorney-Client Privilege Waived When Insurer Denies Bad Faith

September 18, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Fourth Circuit certified the following question to the South Carolina Supreme Court: Does South Carolina law support application of the "at issue" exception to the attorney-client privilege such that a party may waive the privilege by denying liability in its answer? In Re: Mt. Hawley Ins. Co., 2018 U.S. App. LEXIS 17910 (4th Cir. June 28, 2018). Mt. Hawley insured Contravest Construction Company under an excess commercial liability policy from July 21, 2003 to July 21, 2007. During this period, Contravest constructed a development in South Carolina. In 2011, the Owners Association sued Contravest for alleged defective construction. Mt. Hawley denied tenders to defend or indemnify. Contravest ultimately settled the case. 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

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Grad Student Sues UC Santa Cruz over Mold in Residence

November 13, 2013 — CDJ STAFF
Matthew Richert, a graduate student at UC Santa Cruz, and his wife have filed a lawsuit against UC Santa Cruz, alleging the residence they rented from the university was contaminated with mold, causing problems for them and their children. The family noticed the signs of mold on the walls, but did not initially connect it with their daughter’s health problems, until they mentioned it to their doctor. The doctor sent a letter to the university requesting that the family be transferred to another unit if the mold problem could not be remedied. Mr. Richert made five such requests. Eventually the university moved the family to a hotel as they investigated the unit. The Richert’s unit remains unoccupied, and a Santa Cruz spokesperson noted that 60 of the units showed mold problems. Read the court decision
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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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