FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Washington High Court Holds Insurers Bound by Representations in Agent’s Certificates of Insurance

March 16, 2020 — Michael S. Levine & Michelle M. Spatz - Hunton Insurance Recovery Blog
In responding to a certified question from the Ninth Circuit in T-Mobile USA Inc. v. Selective Insurance Company of America, the Washington Supreme Court has held that an insurer is bound by representations regarding a party’s additional insured status contained in a certificate of insurance issued by the insurer’s authorized agent, even where the certificate contains language disclaiming any effect on coverage. To hold otherwise, the court noted, would render meaningless representations made on the insurer’s behalf and enable the insurer to mislead parties without consequence. The certified question and ruling stem from T-Mobile USA’s appeal of the district court’s summary judgment ruling in favor of Selective Insurance Company on T-Mobile USA’s breach of contract and declaratory judgment claims. Selective issued the insurance policy at issue to a contractor of T-Mobile Northeast, LLC, a wholly owned subsidiary of T-Mobile USA. Through endorsement, the policy extended “additional insured” status to T-Mobile NE because the contract between T-Mobile NE and the insured required that T-Mobile NE be added as an additional insured. Additional insured status was not, however, extended to T-Mobile USA, as T-Mobile USA had not entered a written contract with the insured. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Michelle M. Spatz, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Spatz may be contacted at mspatz@HuntonAK.com Read the court decision
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ICC/ASHRAE/USGBC/IES Green Model Code Integrates Existing Standards

December 04, 2018 — Nadine M. Post - Engineering News-Record
The release this month of the 2018 edition of the International Green Construction Code marks the first time two sustainability standards developers have joined to foster green buildings and streamline code adoption. The model IgCC is now integrated with ASHRAE’s standard for high-performance buildings. And to reduce green-standard confusion even further, the 2018-IgCC is aligned with the LEED rating system program. Read the court decision
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Reprinted courtesy of Nadine M. Post, ENR
Ms. Post may be contacted at postn@enr.com

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Blockbuster Breakwater: Alternative Construction Method Put to the Test in Tampa Bay

August 14, 2023 — Scott Judy - Engineering News-Record
On June 7, 2023, Tampa Bay news reporters trekked to the Sunshine Skyway bridge for a Florida Dept. of Transportation press conference that would explain the mystery behind the hundreds of curiously shaped concrete structures lining nearly the entire length of the span’s mile-plus-long south fishing pier access road. Reprinted courtesy of Scott Judy, Engineering News-Record Mr. Judy may be contacted at judys@enr.com Read the full story... Read the court decision
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Cumulative Impact Claims and Definition by Certain Boards

June 21, 2024 — David Adelstein - Florida Construction Legal Updates
What is a cumulative impact claim? This is commonly referred to as the unforeseeable ripple effect of changes, i.e., the death by a thousand cuts. Cumulative impact claims refer to a disruption on productivity based on the cumulative impact of changes and their impact on unchanged work. Cumulative impact claims are difficult claims to prove, particularly based on the causation standpoint (and argument they could be released based on change order language). If pursuing or considering a cumulative impact claim, you will need to work with a consultant(s) and lawyer that understand the dynamic of these claims to best maximize your arguments and recovery from a causation and damages standpoint. Cumulative impact damages are real. They occur. But they are not damages you can just throw out there or use loosely and expect to develop traction on compensation. Below is how cumulative impact claims are defined by certain Boards of Contract Appeals. The definitions are important. In Appeal of Centex Bateson Construction, Co., Inc., 9901 BCA P 30153, VABCA 4613 (VABCA 1998), the Board explained:

Direct impact, as the immediate and direct effect of a change on unchanged work, is considered foreseeable.

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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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Update: Supreme Court Issues Opinion in West Virginia v. EPA

August 03, 2022 — Anne Idsal Austin, Shelby L. Dyl & Sheila McCafferty Harvey - Pillsbury
Takeaways

• The Supreme Court sided with a coalition of states and coal mining companies constraining EPA’s ability to regulate CO2 emissions from power plants.
• The Supreme Court’s deployment of the “major questions doctrine” could have far-reaching implications for agencies’ authority to take actions that are politically and economically significant.
• The Court also announced a broad interpretation of standing, finding that the challengers could bring their suit notwithstanding EPA’s announced nonenforcement of the Clean Power Plan and intent to engage in a rulemaking to replace it.

Introduction On June 30, 2022, the Supreme Court issued its opinion in West Virginia v. EPA, invalidating the 2015 Obama-era Clean Power Plan (CPP). Chief Justice John Roberts delivered the opinion of the court, holding that Section 111(d) of the Clean Air Act does not authorize EPA to devise emissions caps based on “generation shifting”—the approach EPA took in the CPP wherein power plants would be required to transition from higher-emitting (e.g., coal) to lower-emitting (e.g., natural-gas) to then even lower-emitting (e.g., wind and solar) electricity production. The Court’s holding that the case was justiciable despite the Biden administration’s stated intent to repeal the Clean Power Plan and engage in a new rulemaking, as well as its deployment of the “major questions doctrine,” is likely to have far-reaching implications for legal challenges to all administrative agency actions. Reprinted courtesy of Anne Idsal Austin, Pillsbury, Shelby L. Dyl, Pillsbury and Sheila McCafferty Harvey, Pillsbury Ms. Austin may be contacted at anne.austin@pillsburylaw.com Ms. Dyl may be contacted at shelby.dyl@pillsburylaw.com Ms. Harvey may be contacted at sheila.harvey@pillsburylaw.com Read the court decision
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Judicial Economy Disfavors Enforcement of Mandatory Forum Selection Clause

December 16, 2023 — David Adelstein - Florida Construction Legal Updates
Mandatory forum (venue) selection provisions are generally construed in favor of enforceability. Parties agreed to the forum for disputes so why not enforce them, right? A recent federal district court case out of the Eastern District of Louisiana exemplifies an exception grounded in judicial economy which disfavors the enforceability of mandatory forum selection provisions. Keep in mind that this judicial economy exception is fairly limited but the fact pattern below demonstrates why enforcing the mandatory forum selection provision was disfavored due to judicial economy. In U.S. f/u/b/o Exposed Roof Design, LLC v. Tandem Roofing, 2023 WL 7688584 (E.D.La. 2023), a sub-subcontractor filed a Miller Act payment bond lawsuit against the prime contractor and the prime contractor’s Miller Act payment bond sureties. The sub-subcontractor also sued the subcontractor that hired it. However, the sub-subcontractor’s subcontract with the subcontractor included a mandatory forum selection provision in a different form. The subcontractor moved to sever and transfer the sub-subcontractor’s claims against it to the forum agreed upon in the subcontract. The trial court denied the severance and the transfer. Below are the reasons. 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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Civility Is Key in Construction Defect Mediation

February 12, 2013 — CDJ STAFF
Eugene Heady of Smith Currie & Hancock reminds those involved in construction disputes to “lay down the swords.” Yes, it’s an adversarial situation, but “mediating parties must understand that courtesy, candor, and cooperation on the part of their respective lawyers will help contain the conflict and help resolve the dispute more quickly and efficiently.” Instead of doing battle with the opposition, Mr. Heady says that one should “approach mediation as an opportunity to solve a complex problem, rather than an opportunity for conquest over one’s enemy.” Read the court decision
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Mexico’s Construction Industry Posts First Expansion Since 2012

August 13, 2014 — Brendan Case – Bloomberg
Mexico’s construction industry expanded in June for the first time in 19 months, adding to signs that the economy is rebounding after missing analyst estimates in seven of the last eight quarters. Construction increased 2.2 percent from the year earlier, helping industrial production to expand 2 percent, according to data released today by the national statistics agency. The median estimate of 19 economists surveyed by Bloomberg was for industrial output to rise 2.1 percent. “Industrial activity continued strengthening in June, very much in line with what the market expected,” Mario Correa, the chief Mexico economist at Bank of Nova Scotia, said in a note to clients today. “The construction industry finally showed a positive growth rate.” Read the court decision
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Reprinted courtesy of Brendan Case, Bloomberg
Mr. Case may be contacted at bcase4@bloomberg.net

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