FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Architectural Firm Disputes Claim of Fault

May 27, 2011 — CDJ STAFF

Lake-Flato Architects has disputed the arbitration panel’s conclusion that problems with the home of Tom Hanks and Rita Wilson were due to design flaws. The firm settled with the couple for $900,000, however the Idaho Mountain Express reports that David Lake said, “the settlement in the case in no way represents that Lake Flato was responsible for faulty design.” The Express reported that “the arbitrators found that problems at the home were attributable to design errors that did not take into account the cold winter climate of the Sun Valley area.”



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Policy Language Matters: New Jersey Court Bars Cleanup Coverage Under Broad Policy Terms

May 15, 2023 — Stacy M. Manobianca - Saxe Doernberger & Vita, P.C.
The New Jersey Appellate Division in Handy & Harman v. Beazley USA Services, Inc., provided clarity regarding the interpretation of the Prior or Pending Litigation Exclusion in a site-specific environmental liability insurance policy. In Handy & Harman, the Appellate Division affirmed the trial court’s determination that the insurer was not required to defend or indemnify its policyholder, a metal etching company. The court held that the Prior or Pending Litigation Exclusion (which applied to prior litigation and prior claims) barred coverage for natural resource damages sought in the current litigation because (1) an Administrative Consent Order (“ACO”) is a claim; and (2) the underlying lawsuit was based on the same environmental contamination as addressed in the ACO.1 Read the court decision
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Reprinted courtesy of Stacy M. Manobianca, Saxe Doernberger & Vita, P.C.
Ms. Manobianca may be contacted at SManobianca@sdvlaw.com

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New Jersey Supreme Court Holding Impacts Allocation of Damages in Cases Involving Successive Tortfeasors

March 28, 2022 — Thomas Regan & Karley Kamaris - Lewis Brisbois
Newark, N.J. (March 21, 2022) - Late in 2021, the Supreme Court of New Jersey addressed the issue of allocating damages in personal injury cases in which the plaintiff asserts claims against successive tortfeasors, such as medical malpractice in the treatment of a slip and fall injury caused by negligence. The decision in Glassman v. Friedel, 249 N.J. 199 (2021) overruled and replaced the long-held principles established in Ciluffo v. Middlesex General Hospital, 146 N.J. Super. 478 (App. Div. 1977) regarding successive liability. Ciluffo held that, when an initial tortfeasor settles before trial, the non-settling defendants in a successive tort were entitled to a pro tanto credit for the settlement amount against any damages assessed against them. The Superior Court of New Jersey Appellate Division in 2020, and the Supreme Court of New Jersey last year, abandoned that framework for one more consistent with statutory contribution law in the Garden State. In Glassman v. Friedel, 465 N.J. Super. 436 (App. Div. 2020), the Appellate Division held that the application of the principles in Ciluffo in a negligence case has no support in modern jurisprudence, thus limiting its application. It rejected the holding in Ciluffo in light of the state legislature’s enactment of the Comparative Negligence Act, which requires juries to apportion damages between successive events and apportion fault among the parties responsible for each event. The appellate division went on to hold that a non-settling, successive tortfeasor may present proofs at trial as to the negligence of the settling tortfeasor, and that the burden of proof as to the initial tortfeasor’s negligence being the proximate cause of the second causative event indeed lies on the non-settling defendant. In sum, the appellate division in Glassman established steps the jury can use to determine successive tortfeasor liability, but largely treated it as one, attenuated incident. Reprinted courtesy of Thomas Regan, Lewis Brisbois and Karley Kamaris, Lewis Brisbois Mr. Regan may be contacted at Thomas.Regan@lewisbrisbois.com Ms. Kamaris may be contacted at Karley.Kamaris@lewisbrisbois.com Read the court decision
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Products Liability Law – Application of Economic Loss Rule

April 02, 2024 — David Adelstein - Florida Construction Legal Updates
When it comes to product liability law, one important doctrine that will always come up is the economic loss rule. The economic loss rule, oftentimes going by its acronym ELR, lives and breathes in the realm of product liability law. Does the economic loss rule extend to a manufacturer’s distributor for a duty to warn when the product is NOT defective? A recent opinion out of the Eleventh Circuit Court of Appeals, NBIS Construction & Transport Ins. Services v. Liebherr-America, Inc., 2024 WL 861257 (11th Cir. 2024), was confronted with this question, including whether the economic loss rule should even extend to a distributor of a product, and certified the following to Florida’s Supreme Court to answer: “Whether, under Florida law, the economic loss rule applies to negligence claims against a distributor of a product, stipulated to be non-defective, for the failureto alert a product owner of a known danger, when the only damages claimed are to the product itself?” NBIS, supra, at *8. 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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Illinois Appellate Court Finds Insurer Estopped From Denying Coverage Where Declaratory Judgment Suit Filed Too Late

August 07, 2018 — TLSS Insurance Law Blog
In an unpublished opinion from the Illinois Appellate Court, Country Mutual Insurance Co. v. Badger Mutual Insurance Co., 2018 IL App (1st) 171774-U, the court held that because an insurer breached its duty to defend and failed to file a declaratory judgment action before the underlying lawsuit was resolved, it was estopped from denying coverage for the default judgment entered against its insured in the underlying lawsuit. The underlying lawsuit concerned a claim that plaintiff’s property allegedly sustained damage when the insured performed work on the plaintiff’s residence. The complaint in the underlying lawsuit did not specifically identify when the property damage occurred. However, the complaint did state that the insurer’s investigator alerted it in 2010 that the property damage was due to the insured’s faulty work during the policy period. The insurer did not defend the insured during the action and a default judgment was entered against the insured. Read the court decision
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Reprinted courtesy of Traub Lieberman Straus & Shrewsberry LLP

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Serving Notice of Nonpayment Under Miller Act

January 20, 2020 — David Adelstein - Florida Construction Legal Updates
Under the federal Miller Act, if a claimant is NOT in privity with the prime contractor, it needs to serve a “notice of nonpayment” within 90 days of its final furnishing. In this manner, 40 U.S.C. 3133 (b)(2) states: A person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing the payment bond may bring a civil action on the payment bond on giving written notice to the contractor within 90 days from the date on which the person did or performed the last of the labor or furnished or supplied the last of the material for which the claim is made. The action must state with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. The notice shall be served–

(A) by any means that provides written, third-party verification of delivery to the contractor at any place the contractor maintains an office or conducts business or at the contractor’s residence; or (B) in any manner in which the United States marshal of the district in which the public improvement is situated by law may serve summons.

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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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Iowa Court Holds Defective Work Performed by Insured's Subcontractor Constitutes an "Occurrence"

July 28, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Iowa Supreme Court held that property damage caused by a subcontractor's defective work was an "occurrence." Nat'l Sur. Corp. v. Westlake Invs., LLC, 2016 Iowa LEXIS 71 (Iowa June 10, 2016). In 2002, the insureds, the developers and general contractor, began construction on an apartment complex. While the complex was still under construction, it was purchased by Westlake Investments, LLC. During construction, numerous problems surfaced, including visible water penetration issues in several buildings. In February 2008, Westlake sued the insureds, seeking to recover lost profits, repair costs, and other damages under tort and contract theories. Arch Insurance Group defended under the primary policy. A settlement was eventually reached whereby a consent judgment for $15,600,000 was entered against the insureds and in favor of Westlake. Arch contributed its policy limits of $1,000,000 to the settlement. Other third party defendants contributed $1,737,500, leaving $12,762,500 of the judgment unsatisfied. The insureds assigned rights under their excess policy with National Surety Corporation (NSC) to Westlake. NSC's policy was a following-form policy. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Teaching An Old Dog New Tricks: The Spearin Doctrine and Design-Build Projects

October 30, 2018 — John Castro - Gordon & Rees Construction Law Blog
The United States District Court for the Southern District of California has now held that the Spearin doctrine applies to design-build subcontractors where the subcontractor is expected to design a portion of their work. The case is United States for the use and benefit of Bonita Pipeline, Inc., et al. v. Balfour Beatty Construction, LLC, et al. (“Bonita Pipeline”) (Case No. 3:16-cv-00983-H-AGS). In Bonita Pipeline, a subcontractor sued the general contractor and its sureties alleging breach of contract, breach of implied warranty, declaratory relief, and recovery under the Miller Act. The subcontractor then filed a motion for partial summary judgment against the general contractor on its declaratory relief cause of action, seeking a finding that the general contractor could not shift legal responsibility for its defective plans and specifications to the subcontractor. Read the court decision
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Reprinted courtesy of John Castro, Gordon & Rees Scully Mansukhani
Mr. Castro may be contacted at jcastro@grsm.com

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