FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Law Firm Fails to Survive Insurer's and Agent's Motions to Dismiss

May 08, 2023 — Tred R. Eyerly - Insurance Law Hawaii
Interpreting New Jersey law, the federal district court dismissed without prejudice the law firm's complaint against its insurer and agent. Law Office of Drew J. Bauman v. Hanover Ins. Co., 2023 U.S. Dist. LEXIS 31844 (D. N. J. Feb. 27, 2023). The law firm had a professional liability policy issued by Hanover. The law firm was sued in the underlying case involving a real estate transaction. The law firm tendered the defense and indemnity of the underlying complaint, but coverage was denied. The law firm sued, contending Hanover breached the policy by refusing to abide by its obligations under the policy. In the alternative, the law firm alleged that its agent, USI Insurance Services, LLC, was liable if the policy did not require Hanover to defend and indemnify in the underlying case. It was further alleged that USI was responsible for procuring coverage for the law firm and knew of its insurance needs. USI was negligent in securing a policy with inadequate coverage. 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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Municipalities Owe a Duty to Pedestrians Regardless of Whether a Sidewalk Presents an “Open and Obvious” Hazardous Condition. (WA)

February 25, 2014 — Natasha Khachatourians – Scheer & Zehnder LLP Liability Newsletter
Issue: Does a municipality owe a duty to pedestrians to keep sidewalks reasonably safe for their intended use even if the condition of the sidewalk is an open and obvious hazard? YES Facts: Plaintiff Nanci Millson liked to walk in Lynden, Washington. While plaintiff regularly walked through her neighborhood and knew that various areas of the sidewalk were cracked and lifted, she continued to walk through her neighborhood nonetheless. Plaintiff felt that the sidewalks closer to her neighborhood were in better condition and when she reached an area a block away from her home, she picked up speed even though she was in an area of sidewalk she previously had not walked before. Plaintiff became distracted, tripped on an elevated sidewalk and fell, suffering various injuries. Plaintiff sued the City of Lynden (“City”) for negligently failing to maintain the sidewalk in a reasonably safe condition. The City argued that the tripping hazard was “open and obvious”, and the trial court granted the City summary judgment. The issue before the Court of Appeals was whether an “open and obvious” condition is a matter of law to be decided by the court. Read the court decision
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Reprinted courtesy of Natasha Khachatourians, Scheer & Zehnder LLP
Ms. Khachatourians may be contacted at natashak@scheerlaw.com

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Struggling Astaldi Announces Defaults on Florida Highway Contracts

April 22, 2019 — Scott Judy - Engineering News-Record
Astaldi Construction Corp. announced on March 28 that it was voluntarily defaulting on four contracts with the Florida Dept. of Transportation. Included among those was a $108.3-million contract covering the 3.5-mile-long Section 7A for the $1.6-billion Wekiva Parkway project. Astaldi’s default on that project comes nearly a year after the contractor commenced work on April 1, 2018. Read the court decision
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Reprinted courtesy of Scott Judy, ENR
Mr. Judy may be contacted at judys@enr.com

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They Say Nothing Lasts Forever, but What If Decommissioning Does?

June 10, 2019 — Stella Pulman - Gravel2Gavel Construction & Real Estate Law Blog
The looming decommissioning liabilities of offshore energy producers have been a focus of the federal government in recent years. One recent case out of the U.S. Court of Federal Claims, Taylor Energy v. United States, highlights the tension between the federal government’s desire to maintain financial security for decommissioning activities, and that of an operator whose security is tied up indefinitely while the government awaits technological advances to allow for safe decommissioning. The case relates to a trust agreement between Taylor Energy and the United States, established to secure Taylor’s decommissioning liabilities for 28 wells in the Gulf of Mexico. Taylor completed certain decommissioning work for which it was reimbursed by the trust. However, with over $400 million remaining in the trust, Taylor and the Bureau of Safety and Environmental Enforcement (BSEE) concluded that the ecological benefits of further decommissioning would be outweighed by the ecological risks. But despite recognizing that the limitations of current technology made the environmental impacts of further decommissioning work unjustifiable, the BSEE declined to release Taylor from its decommissioning obligations and instead decided to await “changes in technology and a better understanding of the undersea environment.” Because Taylor’s decommissioning obligations remained in place, the U.S. refused to release the remaining funds in the trust. Taylor claimed that the United States should release the remaining funds in the trust because “decommissioning the remaining wells is not ‘currently technologically feasible.’” Taylor asserted that Louisiana law applied to the trust agreement, and that under Louisiana law every contract must be completed within an ascertainable term. By holding the trust funds until decommissioning was complete, Taylor argued that the government was essentially holding the funds in perpetuity given the technological infeasibility of completing decommissioning. Taylor also asserted that the agreement was premised on an impossibility (the full decommissioning of the wells), and/or a mutual mistake of the parties (that the wells could be decommissioned). Read the court decision
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Reprinted courtesy of Stella Pulman, Pillsbury
Ms. Pulman may be contacted at stella.pulman@pillsburylaw.com

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Bert Hummel Appointed Vice Chair of State Bar of Georgia Bench & Bar Committee

October 24, 2021 — Bert Hummel - Lewis Brisbois
Atlanta, Ga. (October 4, 2021) – Atlanta Partner Bert Hummel was recently named Vice Chair of the State Bar of Georgia's Bench & Bar Committee for the 2021-2022 year. The Bench & Bar Committee identifies and facilitates solutions to issues of mutual interest between State judges and Georgia lawyers for the benefit of the bench, the bar and the public. It also oversees the annual Justice Thomas O. Marshall Professionalism Award, which honors one lawyer and one judge who have demonstrated the highest professional conduct and paramount reputation for professionalism. Read the court decision
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Reprinted courtesy of Bert Hummel, Lewis Brisbois
Mr. Hummel may be contacted at Bert.Hummel@lewisbrisbois.com

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Nevada Supreme Court Holds That Insureds Can Use Extrinsic Evidence to Prove Duty to Defend

February 28, 2022 — Bethany L. Barrese - Saxe Doernberger & Vita
The recent Nevada Supreme Court ruling in Zurich American Insurance Company v. Ironshore Specialty Insurance Company1 benefits insureds seeking to establish an insurer’s duty to defend. As a matter of first impression, the court clarified that insureds have the burden to prove that an exception to a policy exclusion applies in order to trigger the insured’s duty to defend. However, while the policyholder may use extrinsic evidence to establish the insurer’s duty to defend, the insurer may not use extrinsic evidence to deny that duty. The facts of the underlying claim are set in the 2000s when the insured subcontractors worked to build thousands of homes in Nevada. The subcontractors were insured by Zurich American Insurance Company (“Zurich”) during that period. After the homes were complete, the subcontractors switched from Zurich to Ironshore Specialty Insurance Company (“Ironshore”). Between 2010 and 2013, homeowners brought claims against the subcontractors alleging that the properties were damaged due to construction defects. The subcontractors tendered the claims to Zurich as the insurer at the time of construction. Zurich then sought defense and indemnification from Ironshore. Ironshore denied coverage under a “continuing and progressive” policy exclusion, claiming that the property damage occurred due to faulty work that predated the Ironshore policy. Notably, an exception to the exclusion applied if “sudden and accidental” property damage occurred within the Ironshore policy period. Given that the underlying lawsuits did not include specific allegations describing when or how the property damage occurred, Ironshore and Zurich disagreed on whether the exception to the exclusion was triggered.. Read the court decision
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Reprinted courtesy of Bethany L. Barrese, Saxe Doernberger & Vita
Ms. Barrese may be contacted at BBarrese@sdvlaw.com

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School Blown Down by Wind Still Set to Open on Schedule

November 06, 2013 — CDJ STAFF
The framing was going up for a new elementary school in Pasco, Ohio, when winds of about 60 miles per hour ripped the area. The winds brought down part of the structure. School district officials met with the contractor, Fowler Construction. John Morgan, the assistant director of operations for the Pasco School District, said that they did not “anticipate any delay in the opening of the new school.” Groundbreaking at the school happened in June and the school is scheduled to be open in the fall. The damage had not yet been determined. Read the court decision
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Reprinted courtesy of

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Claims Made Insurance Policies

November 04, 2019 — David Adelstein - Florida Construction Legal Updates
“Claims-made policies are common in the professional liability insurance market. They “differ from traditional ‘occurrence’-based policies primarily based upon the scope of the risk against which they insure.” With claims-made policies, coverage is provided only where the act giving rise to coverage “is discovered and brought to the attention of the insurance company during the period of the policy.” In contrast, coverage is provided under an occurrence-based policy if the act giving rise to coverage “occurred during the period of the policy, regardless of the date a claim is actually made against the insured.” “The essence, then, of a claims-made policy is notice to the carrier within the policy period.” Crowely Maritime Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2019 WL 3294003 (11thCir. 2019) The recent Eleventh Circuit Court of Appeal opinion in Crowely Maritime Corp. discussed the distinction between a claims-made insurance policy and an occurrence-based insurance policy. Professional liability policies are generally claims-made policies whereas commercial general liability policies are generally occurrence-based policies. While this opinion does not involve a construction matter, the case did concern the definition of a “claim” in a claims-made policy and whether such claim was timely reported to the insurer within the discovery period / extended reporting 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

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