FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Seven Trends That Impact Commercial Construction Litigation in 2021

March 29, 2021 — Jeffrey Kozek & E. Mitchell Swann - Construction Executive
2021 stands to bring sizeable change to the commercial construction industry as trends that had been on the horizon meet the impact of the pandemic. That means it will be even more important for architects, engineers, contractors and owners to prioritize revisiting their project plans as the industry adapts so that they can better reduce their likelihood of facing litigation down the line. While many in the industry will struggle to react to the ongoing environment, building stronger contractual understanding and preparedness to adapt could be the difference in being able to complete the work and move onto the next project in a timely manner. Meanwhile, contractors are using a wider usage of technologies for improved project communication and efficiency. In the coming year, there are seven trends will have the greatest impact on commercial construction. Reprinted courtesy of Jeffrey Kozek and E. Mitchell Swann, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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California Contractor License Bonds to Increase in 2016

December 02, 2015 — Garret Murai – California Construction Law Blog
The post, which originally appeared on The Surety Bond Insider, was written by Jon Gottschalk, a member of the SuretyBonds.com Educational Outreach team. on SuretyBonds.com helps contractors fulfill their bonding requirements. The Contractors State License Board (CSLB) is requiring all California contractors to purchase a $15,000 bond by January 1, 2016— a $2,500 increase from the $12,500 amount that was previously required. The additional $2,500 was previously accounted for by an additional requirement to obtain a contractor’s license. Those applying for the license had to post the $12,500 surety bond and proof of financial solvency in the amount of $2,500. Essentially, contractors were required to show that their current assets were greater than their liabilities by no less than $2,500. By increasing the bond amount to include that additional $2,500, the CSLB has removed the burden of proving financial solvency from those who wish to obtain their license. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Excess Must Defend After Primary Improperly Refuses to Do So

August 13, 2014 — Tred R. Eyerly - Insurance Law Hawaii
The excess insurer had a duty to defend after the primary carrier improperly refused its defense obligations. IMG Worldwide, Inc. v. Westchester Fire Ins. Co., 2014 U.S. App. LEXIS 13703 (6th Cir. July 15, 2014). IMG was sued for over $300,000,000 for alleged fraud, conversion, civil theft and violations of the Florida Deceptive and Unfair Trade Practice Act (FDUTPA). The lawsuit stemmed from a real estate development project. The plaintiffs had invested in the project and alleged that the developer had sold them undeveloped properties with the promise they would be developed. IMG was a consultant on the project and also licensed to the developer the use of the IMG name and logo in marketing materials. IMG had no contractual obligation to actually develop the property or finance the project. IMG sought coverage from its primary carrier, Great Divide, and from its excess carrier, Westchester. Both denied coverage and refused to defend. 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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Effective Zoning Reform Isn’t as Simple as It Seems

July 03, 2022 — Yonah Freemark & Lydia Lo - Bloomberg
The Biden Administration’s Housing Supply Action Plan, unveiled last week, aims to help close America’s shortfall of almost 4 million housing units and subdue the nation’s skyrocketing home prices. At the top of its list of action items is a promise to provide federal grants as a reward to communities that alter land-use policies to promote density, an approach the administration is already piloting. But identifying the land-use policies that most effectively add housing is harder than it seems. Mounting evidence indicates that one-off reforms such as eliminating single-family-only zoning aren’t adequate. To make meaningful progress in building homes, municipalities have to do more. The Biden plan doesn’t detail how it will determine which types of policies will make a community eligible for these federal grants. But to meet the administration’s housing goals, we recommend it require that local governments seeking grants both show that their zoning changes are actually producing additional housing units, and also that their reforms include the full array of land-use policies that affect housing affordability. Read the court decision
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Reprinted courtesy of Bloomberg

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Second Circuit Court Differentiates the Standard for Determining Evident Partiality for a Neutral Arbitrator and a Party-Appointed Arbitrator

August 07, 2018 — Celia B. Waters - Saxe Doernberger & Vita, P.C.
On June 7, 2018, the Second Circuit Court in Certain Underwriting Members of Lloyds of London v. Fla., Dep’t of Fin. Servs.,1 held that a party-appointed arbitrator should not be held to the same standard as a neutral arbitrator. The Court vacated a district court’s order vacating an arbitral award in a reinsurance dispute between Insurance Company of Americas (“ICA”) and Certain Underwriting Members of Lloyds of London (“Underwriters”). The case was one of first impression for the Second Circuit on how to determine the standard of evident partiality challenged to a party-appointed arbitrator. Underwriters reinsured ICA under a series of treaties. The treaties each contained an arbitration clause requiring that disputes be adjudicated by an arbitration panel consisting of three members: one party-appointed arbitrator for each party, and a neutral. The clause required only that the arbitrators “be active or retired disinterested executive officers of insurance or reinsurance companies or Lloyd’s London Underwriters.” Read the court decision
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Reprinted courtesy of Celia B. Waters, Saxe Doernberger & Vita, P.C.
Ms. Waters may be contacted at cbw@sdvlaw.com

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California Court of Appeal Holds That the Right to Repair Act Prohibits Class Actions Against Manufacturers of Products Completely Manufactured Offsite

February 06, 2019 — Gus Sara - The Subrogation Strategist
In Kohler Co. v. Superior Court, 29 Cal. App. 5th 55 (2018), the Second District of the Court of Appeal of California considered whether the lower court properly allowed homeowners to bring class action claims under the Right to Repair Act (the Act) against a manufacturer of a plumbing fixture for alleged defects in the product. After an extensive analysis of the language of the Act, the court found that class action claims under the Act are not allowed if the product was completely manufactured offsite. Since the subject fixture was completely manufactured offsite, the Court of Appeal reversed the lower court’s decision. The court’s holding establishes that rights and remedies set forth in the Right to Repair Act are not available for class action claims alleging defects in products completely manufactured offsite. In Kohler Co., homeowners instituted a class action against Kohler, the manufacturer of water pressure and temperature regulating valves that were installed into their homes during original construction. The class action was filed on behalf of all owners of residential dwellings in California in which these Kohler valves were installed as part of original construction. The complaint asserted, among other claims, a cause of action under the Act. Kohler filed a motion for anti-class certification on the ground that causes of actions under the Act cannot be certified as a class action. The trial court denied the motion with respect to the Act but certified its ruling for appellate review. Kohler filed a petition with the Court of Appeals, arguing that certain sections of the Act explicitly exclude class action claims under the Act. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams LLP
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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U.K. Broadens Crackdown on Archaic Property Leasehold System

October 23, 2018 — Sree Vidya Bhaktavatsalam - Bloomberg
The U.K. government is cracking down on what it called “unfair” leasehold practices as part of sweeping reforms to its housing system, in a move that would modernize the property market to bring it more in line with nations such as the U.S. Initially prompted by a malpractice scandal, the proposed scope of the focus by the Ministry of Housing, Communities & Local Government has become far broader. A consultation will seek views not only on the practice of charging buyers an annual fee for owning leasehold properties -- known as ground rents -- it will review the whole process of buying, selling and property management of leasehold homes. Read the court decision
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Reprinted courtesy of Sree Vidya Bhaktavatsalam, Bloomberg

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Recovering Attorney’s Fees and Treble Damages in Washington DC Condominium Construction Defect Cases

April 03, 2023 — Nicholas D. Cowie - Cowie Law Group
DC Condominium Association’s Can Recover Attorney’s Fees, Litigation Costs and Treble Damages in Construction Defect Cases Involving Misrepresentation The District of Columbia Consumer Protection Procedures Act (“CPPA”) § 28-3905(k)(1)(A) creates a private legal claim (a/k/a “cause of action”) which can be asserted by a condominium unit owners association (“condominium association”) on behalf of two or more of its unit owner members who are misled by a condominium developer regarding the condition or quality of a newly constructed or newly converted condominium. Under the DC CPPA, a successful claimant is entitled to recover “treble damages” (i.e., three times the amount of damages it proves), plus recovery of “reasonable attorney’s fees” incurred in prosecuting the construction defect claim and “[a]ny other relief the court determines proper,” including non-attorney fee litigation expenses. DC CPPA § 28-3905(k)(2)(A), (B) and (F). The CPPA Creates the Legal Claim that Allows a Condominium Associations to Recover Attorney’s Fees, Litigation Costs and Treble Damages The DC CPPA is a consumer-oriented statute designed to protect Washington DC consumers misled in connection with the purchase of consumer “real estate,” including transactions involving the purchase of a condominium unit and interest in the condominium common elements. Typically, these cases involve the sale of a newly constructed or newly converted condominium, which, contrary to developer representations, contains latent construction defects. Read the court decision
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Reprinted courtesy of Nicholas D. Cowie, Cowie Law Group
Mr. Cowie may be contacted at ndc@cowielawgroup.com

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