Fairfield Connecticut Building Expert Directory

Restaurant Wants SCOTUS to Dust Off Eleventh Circuit’s “Physical Loss” Ruling

February 01, 2021 — Michael S. Levine & Geoffrey B. Fehling - Hunton Insurance Recovery Blog
A South Florida restaurant has asked the US Supreme Court to overturn a federal district court’s ruling that the restaurant is not entitled to coverage under an “all risk” commercial property insurance policy for lost income and extra expenses resulting from nearby road construction. In the underlying coverage action, the policyholder, Mama Jo’s (operating as Berries in the Grove), sought coverage under its all-risk policy for business income losses and expenses caused by construction dust and debris that migrated into the restaurant. Should the Supreme Court grant certiorari, the case will be closely watched by insurers and policyholders alike as an indicator of the scope of coverage available under all-risk policies and whether the principles pertinent to construction dust and debris (at issue in Mama Jo’s claim) have any application to the thousands of pending claims for COVID-19-related business interruption losses pending in the state and federal court systems. As previously discussed on this blog, the Eleventh Circuit’s decision deviates from Florida precedent on the issue of “direct physical loss” and even its own understanding of that term as described in the August 18, 2020 decision now at issue before the Supreme Court. Mama Jo’s points to this in its petition along with several other errors arguing, for example, that the appellate court’s ruling renders entire areas of coverage nonexistent by requiring “tangible destruction” of property under all-risk policies that expressly afford coverage for types of clean-up costs required to remove debris from covered property. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Geoffrey B. Fehling, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Read the court decision
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Boots on the Ground- A Great Way to Learn and Help Construction Clients

May 02, 2022 — Christopher G. Hill - Construction Law Musings
This past week, I attended the Construction Law and Public Contracts seminar in Charlottesville, VA and also a breakfast meeting of the Richmond chapter of the Associated General Contractors of Virginia. Reflecting on this past week, I realized that my membership and participation in both of these great organizations (I am a member of the Board of Governors for the state bar section and the Executive Committee for the Richmond District of AGC-VA) not only provides great marketing and friendship opportunities, participation helps my construction clients in ways that a singular online marketing and interactive path would not (even with the growth of social media). Among other benefits (including case digests and the insightful newsletter), being a member of the Construction Law and Public Contracts section helps my clients in numerous ways, not the least of which is the ability to network and gain the perspective of many of the great construction attorneys here in Virginia. The ability to bounce legal thoughts off of others for their perspectives gives me the benefit of their experiences and, importantly to my clients, allows me to be more efficient in my research and arguments because of their insight. Additionally, as a solo construction attorney, knowing other attorneys in other parts of the Commonwealth of Virginia gives me a network of trusted lawyers to whom I can safely and confidently refer a case where a conflict exists or other factors (like geography) make such a referral a benefit to a construction firm in need of legal assistance on a particular matter. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Court Finds No Coverage for Workplace “Prank” With Nail Gun

April 04, 2022 — Craig Rokuson - Traub Lieberman Insurance Law Blog
In the recent case of Metro. Prop. & Cas. Ins. Co. v. Burby, 2022 NY Slip Op 22070, ¶ 1 (Sup. Ct.) Justice Richard M. Platkin of the Supreme Court of Albany County, New York examined a homeowners insurance policy and determined that a duty to defend was triggered in a case seeking recovery for injuries sustained when the insured, Burby allegedly discharged a nail gun in the bathroom of a work facility at which both Burby and the underlying plaintiff worked. Burby pled guilty to assault in the third degree for recklessly causing physical injury. MetLife, Burby’s carrier, disclaimed coverage based on lack of an occurrence, the business activities exclusion and the intentional loss exclusion, which bars coverage for injuries expected or intended by the insured or injuries that are the result of the insured’s intentional and criminal acts or omissions. Justice Platkin initially reviewed the intentional loss exclusion and lack of an occurrence and found that, from a duty to defend perspective, neither provided a dispositive coverage defense. However, the court found that the broadly worded business activities exclusion, which was not the subject of MetLife’s motion and instead was the subject of a cross motion by Burby, applied to bar coverage. In doing so, the court searched the record and granted summary judgment on the issue, despite MetLife not moving for relief under the exclusion. With respect to the expected or intended prong of the intentional loss exclusion, the court found that, even if Burby did intend to pull the trigger of the nail gun, it was not pled in the underlying complaint that the harm that resulted to the plaintiff was expected or intended. As such, the court concluded that MetLife did not prove that there was no possible factual or legal basis upon which it could be found that Burby did not reasonably expect or intend to cause injury to the plaintiff. Read the court decision
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Reprinted courtesy of Craig Rokuson, Traub Lieberman
Mr. Rokuson may be contacted at crokuson@tlsslaw.com

There’s an Unusual Thing Happening in the Housing Market

October 03, 2022 — Tracy Alloway - Bloomberg
It’s no secret that the US housing market has been softening as interest rates rise at the fastest pace in decades. Higher mortgage rates mean the dramatic growth in home prices that we’ve seen over the past two years is beginning to slow. Sales of new homes recently came in at the weakest monthly level since 2018. Meanwhile, purchase applications are down 20% year-on-year, and so on. But the rapid pace of rate hikes has also resulted in an interesting statistical anomaly. Months of supply — or the number of months it would take for the existing inventory of homes on the market to sell at the current sales pace — has jumped to 4.1 from a record low of just 2.1 back in January of this year. And, as Morgan Stanley strategist James Egan notes, rarely have we seen an increase of this size. To some extent, the jump in inventory is to be expected. It’s maths. As sales volume falls while inventories rise, months of supply naturally increases. But such a jump is intuitively striking, and the key question for housing-watchers is whether the absolute level of inventory — which is still low by many measures, even as homebuilders have ramped up construction since last year — will turn out to be more important than its rate of change. A housing market that is structurally undersupplied is going to be a lot less vulnerable to fewer sales. Read the court decision
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Reprinted courtesy of Tracy Alloway, Bloomberg

Illinois Court Determines Duty to Defend Construction Defect Claims

March 22, 2021 — Tred R. Eyerly - Insurance Law Hawaii
Given the underlying allegations of damage to personal property, the court determined the insurer had a duty to defend. Certain Underwriters at Lloyd's London v. Metropolitan Builders, Inc., 2019 Ill. App. LEXIS 979 (Ill. Ct. App. Dec. 18, 2019). Metropolitan was hired as the general contractor for construction, renovation and demolition at contiguous properties - the 1907 Property, 1909 Property, and 1911 Property. During construction activities, the structures on the 1907 Property and 1909 Property collapsed. The existing structures on the properties were later deemed unsafe and were demolished by the city of Chicago. AIG insured the owner of the buildings and paid over $1.8 million for repairs and associated expenses arising from the collapse. AIG then invoked its rights of subrogation against Metropolitan by filing suit. Metropolitan tendered the suit to its insurer, Lloyd's, who denied coverage and filed for a declaratory judgment. The trial court found the underlying complaint alleged property damage, but not an occurrence. Summary judgment was awarded to Lloyd's. 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

California Plant Would Convert Wood Waste Into Hydrogen Fuel

January 10, 2022 — James Leggate - Engineering News-Record
A climate-focused tech company announced plans to open a $100-million plant outside Bakersfield, Calif., to convert wood waste into hydrogen fuel to prevent the material from emitting greenhouse gases. There has been no construction contract award, to date. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Reasonableness of Denial of Requests for Admission Based Upon Expert’s Opinions Depends On Factors Within Party’s Understanding

February 27, 2019 — Stephen M. Tye & Lawrence S. Zucker II - Haight Brown & Bonesteel LLP
In Orange County Water District v. The Arnold Engineering Company (D070763), the Fourth Appellate District examined the criteria for evaluating the reasonableness of a parties’ denial of requests for admission (RFA’s) based upon their expert’s opinions and the proof required to recover costs for unreasonable denials. In Orange County Water District, the Orange County Water District (the District) sued several current and former owners and operators of industrial sites, including The Arnold Engineering Company (Arnold), to recover expenses associated with groundwater cleanup efforts intended to address groundwater contamination caused by volatile organic compounds (VOC’s) and other chemicals. Over six years, the parties conducted extensive discovery, including document productions, depositions, and soil sampling and monitoring. Reprinted courtesy of Stephen M. Tye, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Mr. Tye may be contacted at stye@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Park Avenue Is About to Get Something It Hasn’t Seen in 40 Years

February 05, 2015 — David M. Levitt – Bloomberg
Sometime next week, a metal frame will go up around the blocky brick tower at Manhattan’s 425 Park Ave., designed to protect pedestrians from falling objects. It’s a prelude to the building’s demise. In about three years, if all goes according to plan, the site will have a new Norman Foster-designed skyscraper more than twice the height of the existing one. The replacement would be the first new office building in almost four decades on what the developer, David Levinson, called New York’s “grand boulevard of commerce.” Read the court decision
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Reprinted courtesy of David M. Levitt, Bloomberg

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