Fairfield Connecticut Building Expert Directory

Falling Tree Causing Three Injuries/Deaths Is One Occurrence

September 28, 2017 — Tred R. Eyerly - Insurance Law Hawaii
In a decision by Judge Sutton, the Sixth Circuit affirmed the district court's ruling that a falling tree causing one injury and two deaths was the result of a single occurrence. Evanston Ins. Co. v. Housing Auth. of Somerset, 2017 U.S. App. LEXIS 15199 (6th Cir. Aug. 15, 2017). A large tree fell on cousins Kaitlyn Griffin and Joshua Thacker. Kaitlyn died within minutes. She was pregnant at the time. Doctors delivered her baby, but the baby died shortly thereafter. Joshua survived but suffered serious injury. In December 2013, a state court jury found the Housing Authority liable for the accident and awarded $3.7 million in damages. 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

Texas Allows Wide Scope for Certificate of Merit

January 07, 2025 — Lian Skaf - The Subrogation Strategist
The purpose of certificate of merit (sometimes referred to as affidavit of merit) statutes is to identify frivolous claims before the court wastes time and resources during litigation. More common in medical malpractice cases, several states have enacted similar requirements for professional negligence claims dealing with construction-related issues. While a subrogation attorney should not be bringing a frivolous case to suit anyway, the requirement adds another step in the process that plaintiffs need to properly navigate. Chapter 150 of the Texas Civil Practice and Remedies Code requires that in an action arising out of professional services by a licensed or registered professional, claimants must file an affidavit from a qualified expert attesting to the theories of recovery, the negligence and the factual basis for the claims. The expert must be competent, have the same professional license or registration as the defendant and practice in the area of practice of the defendant. In Janis Smith Consulting, LLC v. Rosenberg, No. 03-23-00370-CV, 2024 Tex. App. LEXIS 7961, the Court of Appeals of Texas, Third District (Court of Appeals) addressed a challenge from the defendant as to the sufficiency of the plaintiff’s certificate of merit in an interlocutory appeal. The Court of Appeals affirmed the lower court’s dismissal of the defendant’s motion to dismiss based on the allegedly improper certificate of merit, holding that the plaintiff’s expert was sufficiently qualified to certify the legitimacy of the case. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

Building Materials Price Increase Clause for Contractors and Subcontractors – Three Options

June 21, 2021 — William L. Porter - Porter Law Group
With the arrival of inflation come concerns regarding increases in the price of building materials within the construction industry. Contractors, subcontractors and others who contract to perform construction work can suffer significant losses when the prices they must pay for materials rises significantly between the time they sign the contract and actually purchase the materials. The general rule is that, unless there exists a contract clause allowing contractors or subcontractors to pass significant price increases for materials on to others, contractors and subcontractors are stuck with the price stated in the contract or subcontract. When prices rise, the contractor or subcontractor eats the difference. Rising prices can thus turn a profitable project into a catastrophic failure. How are contractors and subcontractors to protect themselves? Once a contract is executed, there is usually little that can be done to change the document to address rising prices. Effort must therefore turn to future protection. The best technique for dealing with increasing future prices for building materials is by adding a price escalation clause to contracts and subcontracts. While this will not help for past contracts or subcontracts, it can certainly offer significant protection going forward. Read the court decision
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Reprinted courtesy of William L. Porter, Porter Law Group
Mr. Porter may be contacted at bporter@porterlaw.com

Update: Lawyers Can Be Bound to Confidentiality Provision in Settlement Agreement

January 13, 2020 — Danielle Ward, Esq. - Balestreri Potocki & Holmes
In July 2019, the California Supreme Court ruled that an attorney’s signature under the often-used phrase “approved as to form and content” does not preclude a finding that the attorney could be bound to the terms of a settlement agreement. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781.) This decision marks a reversal of the Fourth District Court of Appeal’s 2018 ruling that approval of a contract is not tantamount to an agreement to be bound by that contract. The underlying action stemmed out of a wrongful death suit by Wendy Crossland and Richard Fournier, parents of the decedent, against Monster Energy Company. The parties negotiated a settlement, a critical of element of which was a confidentiality provision aimed at keeping the the settlement secret. The confidentiality provision prohibited plaintiffs and their counsel of record from disclosing both the existence of the settlement, or the terms thereof, to any person, entity, or publication, including the legal website Lawyers & Settlements. The attorneys signed the agreement under the phrase “approved as to form and content.” Shortly after the settlement agreement was executed, the Plaintiffs’ attorney Bruce Schechter disclosed his clients’ settlement with Monster in an interview with Lawyers & Settlements. Monster filed suit against Mr. Schechter for breach of contract, among other causes of action. Mr. Schechter challenged the lawsuit with a SLAPP motion, essentially arguing that the lawsuit was meritless and merely an attempt to thwart freedom of speech. The trial court denied Mr. Schechter’s motion as to the breach of contract cause of action finding that the settlement clearly contemplated that the attorneys were subjected to the terms of the agreement, and Schechter’s claim that he was not a party because he merely approved as to form and content was “beyond reason.” The Fourth District Court of Appeal reversed, concluding that Mr. Schechter was not a party to the agreement by virtue of his signature approving the form and content, and the Plaintiffs had no authority to bind their attorney to the terms of the agreement. The Court of Appeal found that by affixing his signature to the agreement Mr. Schechter was merely manifesting his “professional thumbs up” in line with legal industry’s customary understanding. In its reversal, the California Supreme Court did not disturb the legal community’s understanding of the phrase “approved as to form and content.” Rather, the Court concluded that an attorney’s signature under that often-used phrase does not preclude as a matter of law that the attorney intended to be bound by the agreement. The entire agreement, including the substantive provisions, need to be examined to determine the attorney’s intent in affixing his/her signature to the agreement. Turning to the Crossland/Fournier Monster settlement agreement, the Court was unpersuaded by Mr. Schechter’s argument that he was not bound to the agreement because counsel was not included in the definition of “party”. The Court stated that it’s the substance of the agreement that determines whether counsel is a party to the contract, as opposed to a party to the lawsuit. The Court was persuaded, in part, by the important role that confidentiality plays in brokering settlements. It noted that public disclosure of private settlements would serve to “chill” parties’ ability to resolve matters short of trial, and there was little doubt that confidentiality was an important term of the Crossland/Fournier Monster settlement. In concluding that Monster had met its burden to defeat an anti-SLAPP motion, the Court pointed to the numerous references to counsel in the substantive provisions of the agreement which a trier of fact could conclude bound Mr. Schechter to the confidentiality terms. Danielle Ward has concentrated her law practice on defending developer, general contractor, and subcontractor clients in a variety of construction matters. She has been an attorney with Balestreri Potocki & Holmes since 2010 and can be reached at dward@bph-law.com. Read the court decision
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Appraisal Goes Forward Even Though Insurer Has Yet to Determine Coverage on Additional Claims

December 11, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The trial court's order granting the insured's motion to stay litigation and compel an appraisal was affirmed even though the insurer had not determined coverage on the insured's additional claims.Heritage Prop. & Cas. Ins. Co. v. Wellington Place HOA, 2023 Fla. App. LEXIS 6405 (Fla. Ct. App. Sept. 13, 2023). The insured homeowner's association reported roof damage to its insurer, Heritage, after Hurrican Irma struck. Heritage agreed the damage was covered, but issued no payment because the amount of loss was less than the deductible. The insured hired its own adjuster. The insured requested an extension of the policy's two year time limit to complete repairs because the claim was still in dispute and the insurer had not yet paid sufficient funds to allow necessary repairs. Heritage sent a revised estimate and asked the insured to send its adjuster's estimate in order to address any disputes. The insured submitted its adjuster's estimate of more than $6 million, including, for the first time, the cost to replace all the windows and sliding glass doors. 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

Recent Amendments and Caselaw Affecting the Construction Industry in Texas

April 19, 2022 — Frederick H. Wen - Gordon Rees Scully Mansukhani, LLP
Here are some recent Texas legislative amendments and Texas Supreme Court cases from the past year concerning the construction industry in Texas. 1) Recent Legislative Amendments Concerning the Construction Industry: a) The Texas Legislature throws a “Spear” in the Lonergan Doctrine to reduce general/subcontractor liability for owner-provided plans and specs: Forty-nine out of the fifty states follow the Spearin Doctrine under which owners warrant the accuracy and sufficiency of owner-provided plans and specs in construction contracts. On the other hand, for over a century, Texas has followed the Lonergan Doctrine under which, absent contractual language to the contrary, a general contractor/subcontractor, instead of the owner, bears the risk of deficiencies in owner-provided design documents, once they started construction. Texas Senate Bill 219, which went into effect on September 1, 2021, finally changed that and brought Texas in line with the rest of the country, with a few exceptions. Read the court decision
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Reprinted courtesy of Frederick H. Wen, Gordon Rees Scully Mansukhani, LLP
Mr. Wen may be contacted at fhwen@grsm.com

Coverage Denied for Insured's Defective Product

October 15, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The court found there was no coverage obligations for the insured's defective product. Titanium Indus., Inc. v. Federal. Ins. Co., 2014 WL 4428324 (N.J. Super. Ct. App. Div. Sept. 10, 2014). The insured, Titanium Industries, supplied titanium bar materials to Biomet Manufacturing Corporation. Biomet manufactured orthopedic implants and devises. The titanium was used to manufacture screws to incorporate into Biomet's products. Biomet notified the insured of a potential defect in some of the titanium material, described as "alloy segregation," i.e., the failure of alloys in a metal to completely melt, causing the alloy to separate and undermine the strength of the finished product. The insured and Biomet negotiated a settlement, which included lost profits and the cost of returning the titanium. 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

Insurer's Motion for Summary Judgment in Collapse Case Denied

November 10, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The court denied the insurer's motion for summary judgment seeking to establish it did not breach the policy when denying coverage for the collapse of basement walls. Belz v. Peerless Ins. Co., 2016 U.S. Dist. LEXIS 118900 (D. Conn. Sept. 2, 2016). The Belzes purchased their home in 2001. Prior to the purchase, they were aware of notable cracking in the basement walls. An engineer was hired to inspect the cracking and determined the cracks did not threaten the structural integrity of the home. 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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