Fairfield Connecticut Building Expert Directory

Eighth Circuit Remands to Determine Applicability of Collapse Exclusion

January 06, 2012 — Tred R. Eyerly - Insurance Law Hawaii

The Eighth Circuit determined a jury instruction regarding the applicability of the "all-risk" policy’s exclusion for "collapse" was inadequate. See KAAPA Ethanol, LLC v. Affiliated FM Ins. Co., 2011 U.S. App. LEXIS 22158 (8th Cir. Nov. 3, 2011).

KAAPA had nine large, cylindrical, stainless steel tanks fabricated at its location. Soon after operations began in 2003, some of the tanks experienced unusual movement and began to shift. A geotechnical engineer found "silty clay" had been used for infill instead of compacted granular fill called for in engineering drawings. A year long plan to repair all nine tanks was implemented.

Affiliated’s "all-risk" policy excluded damage caused by faulty workmanship. It also excluded damage caused by settling or cracking. The settling exclusion went on to provide, "This exclusion will not apply to loss or damage resulting from collapse of: a building or structure; or material part of a building or structure." Affiliated denied coverage because of the faulty workmanship and settling exclusions.

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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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Ethical Limits on Preparing a Witness for Deposition or Trial

October 28, 2024 — Stu Richeson - The Dispute Resolver
In this week’s blog post, we are going to take a brief look at ethical issues associated with preparing a witness for a deposition or to testify at trial. Most attorneys would agree that it is permissible to meet with a witness before the witness’s deposition to discuss what to expect. On the other hand, there is no question that advising a witness to provide false testimony would be improper. But what about the area in between those two extremes? For instance, can an attorney suggest to a witness how to phrase answers to anticipated questions that, while true, might not be the way the witness would have answered the question absent the attorney’s coaching? A little over a year ago, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued ABA Formal Opinion 508: The Ethics of Witness Preparation. The opinion provides certain examples of things that are and are not permissible in preparing a witness for a deposition or trial. Read the court decision
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Reprinted courtesy of Stu Richeson, Phelps
Mr. Richeson may be contacted at stuart.richeson@phelps.com

An Occurrence Under Builder’s Risk Insurance Policy Is Based on the Language in the Policy

April 03, 2023 — David Adelstein - Florida Construction Legal Updates
Builder’s risk insurance coverage is a vital property insurance coverage during the course of construction. Builder’s risk insurance is not a one-size-fits-all product so please make sure you are working with your insurance broker to procure this product that factors in and covers risk associated with the project. Builder’s risk insurance is typically an occurrence-based policy. No different than other occurrence-based policies (such as commercial general liability), a dispute may arise as to the occurrence. This could be due to the triggering of the actual policy during the coverage period or it could be due deductible obligations, as in the case discussed below. When dealing with a builder’s risk insurance policy–again, no different than any policy–the language in the policy matters. Definitions used in the policy to define specific terms matter and, in numerous cases, the ordinary dictionary meanings of terms matter. But it all starts with the policy language. In KT State & Lemon, LLP v. Westchester Fire Insurance Co., 2023 WL 2456499 (M.D.Fla. 2023), a builder’s risk policy provided coverage from April 2018 through the end of November 2019. There was a $50,000 per occurrence deductible for loss caused by or from water damage. An extension to the builder’s risk policy was negotiated through the end of January 2020 that increased this water damage deductible to $250,000 per occurrence. During construction and the testing of the fire suppression (sprinkler) system, leaks started to occur resulting in water damage. Two leaks occurred in September 2019, one leak in October 2019, one leak in November 2019, and two leaks in December 2019 (during the extension and higher water damage deductible period). 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

Are Construction Defect Claims Covered Under CGL Policies?

January 27, 2014 — Beverley BevenFlorez-CDJ STAFF
Courts have ruled differently as to whether a construction defect is or is not an “occurrence,” according to the publication Business Insurance. Four states—Colorado, Arkansas, Hawaii and South Carolina—have sought to remove ambiguity by passing statutes that define construction defect claims as occurrences. Colorado, the first state to create such a statue, passed H. B. 10-1394 in May 2010. The state legislature passed the statute “because of the complex and lengthy endorsements and exclusions facing construction professionals, according to the bill” reported Business Insurance. The article stated that “incongruous court decisions over whether construction defect claims are covered under CGL policies continue to drive uncertainty in coverage and increase litigation costs.” Read the court decision
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Creative Avenue for Judgment Creditor to Collect a Judgment

October 27, 2016 — David Adelstein – Florida Construction Legal Updates
I have a judgment against another entity. Now what? I want to briefly talk about this “now what?” in the context of the recent decision in MYD Marine Distributor, Inc. v. International Paint, Ltd., 41 Fla. L. Weekly D2364a (Fla. 4th DCA 2016). Although this case is not a construction case, it poses an interesting issue for any entity that has a judgment entered against it (known as the judgment debtor) while it is contemporaneously the plaintiff and pursuing monetary damages in an unrelated case or cases. This case also presents an avenue for any judgment creditor to pursue in the event other post-judgment collection efforts are unsuccessful. Read the court decision
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Reprinted courtesy of David Adelstein, Katz, Barron, Squitero, Faust, Friedberg, English & Allen, P.A.
Mr. Adelstein may be contacted at dma@katzbarron.com

Demanding a Reduction in Retainage

April 01, 2015 — Craig Martin – Construction Contractor Advisor
One of the attendees of the Goldleaf Surety presentation asked a great question about reducing retention under the Nebraska Construction Prompt Pay Act, Nebraska Revised Statutes, 45-1201-45-1211. He wanted to know whether there was any way to reduce and recover retainage during the project. The short answer is retainage should be reduced half way through the project, but there is no right to recover retainge for work performed during the first half of the project. Retainage in Nebraska Under section 45-1204 of the Prompt Pay Act, a contractor may withhold up to 10% retainage. A contract that allows for greater retainage is not enforceable. 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

Insurance Broker Stole NY Contractor's Payment, Indictment Alleges

March 21, 2022 — James Leggate - Engineering News-Record
A New York contractor was unknowingly uninsured as it worked on 14 Manhattan projects over four years because its insurance broker was pocketing its payments, according to an indictment. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Not So Fast, My Friend: Pacing and Concurrent Delay

April 25, 2022 — William E. Underwood - ConsensusDocs
When critical path activities are delayed by the owner (or another party), contractors will sometimes “pace,” or slow down, other activities to match the owner-caused delay. After all, why should the contractor hurry up and wait? But paced activities can often appear as concurrent delays on a project’s overall schedule. And all too often, contractors fail to contemporaneously document their efforts to pace work. Not only can this create avoidable disputes with owners and other contractors, but it can also create future roadblocks to the recovery of delay damages. This article examines the interplay between pacing and concurrent delay[1] and what contractors should do to minimize risk and preserve their rights to obtain more than a simple time extension for project delays. Pacing versus Concurrent Delay As a basic matter, most contracts allocate responsibility/liability for a schedule delay to the party that caused the delay. For example, if an owner is contractually required to provide equipment for a contractor to install, then the owner likely bears responsibility for any delays caused if the equipment is delivered late. If, however, the contractor was also behind schedule on other activities during this time and the project would have been delayed regardless of the owner’s late deliveries, then the delay is probably concurrent. And the contractor will generally be entitled to only an extension of time, and no other monetary relief. Read the court decision
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Reprinted courtesy of William E. Underwood, Jones Walker LLP (ConsensusDocs)
Mr. Underwood may be contacted at wunderwood@joneswalker.com

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