Fairfield Connecticut Building Expert Directory

South Carolina Court of Appeals Diverges from Damico Opinion, Sending Recent Construction Defects Cases to Arbitration

October 24, 2023 — Laura Paris Paton - Gordon Rees Construction Law Blog
Could the latest opinion from the South Carolina Court of Appeals be the distant ringing of a death knell for runaway construction defects verdicts? On the heels of the Damico ruling earlier this year, the courts have issued several opinions distinguishing various arbitration agreements from the one analyzed in Damico and have sent subsequent cases to arbitration. This summer, the Supreme Court and Court of Appeals compelled arbitration in Cleo Sanders v. Savannah Highway Automotive Company, et al. Appellate Case No. 2021-000137 / Opinion No. 28168 (petition for rehearing pending) and Joseph Abruzzo v. Bravo Media Productions, et al. Appellate Case No. 2020-001095 / Opinion 6004. Now, in the matter of Jonathan Mart, on behalf of himself and others similarly situated, Respondent, v. Great Southern Homes, Inc., Appellant, Appellate Case No. 2018-001598, the Court of Appeals reversed the circuit court’s order denying a homebuilder’s motion to dismiss and compelled arbitration in this action, which was brought by the homeowner, individually and on behalf of other similarly situated homeowners. Read the court decision
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Reprinted courtesy of Laura Paris Paton, Gordon Rees Scully Mansukhani
Ms. Paton may be contacted at lpaton@grsm.com

Window Installer's Alleged Faulty Workmanship On Many Projects Constitutes Multiple Occurrences

May 10, 2017 — Tred R. Eyerly - Insurance Law Hawaii
Lawsuits filed for recovery due to the faulty design and installation of doors and windows by homeowners across the country were found to allege multiple occurrences. Pella Corp. v. Liberty Mut. Ins. Co., 2017 U.S. Dist. 53631 (C.D. Iowa March 31, 2017). The underlying lawsuits alleged that Pella Corporation's windows were defectively designed, manufactured, or installed, and allowed water intrusion to buildings that resulted in third-party property damage or personal injury. Pella sued Liberty Mutual for declaratory judgment and filed a motion for partial summary judgment to determine how many occurrences the underlying cases presented. Pella sought a determination that each of the 15 underlying cases presented one "occurrence" as the term was defined in the CGL policies issued by Liberty Mutual. Liberty Mutual argued that only three or four occurrences were presented, relying on common fact patterns. Pella argued that there were separate and distinct causes of different injuries and damage and thus, each underlying case constituted a separate occurrence. Liberty Mutual, on the other hand, highlighted language within the definition of "occurrence," which stated that an "occurrence" included "continuous or repeated exposure to the same general harmful conditions." The "substantially the same general harmful conditions" language dictated that the scope of "occurrence" be understood to be broad, such that various instances of damage-causing water intrusion in different times and places constituted "substantially the same general harmful conditions." 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

New York Regulator Issues Cyber Insurance Guidelines

March 29, 2021 — Anne Kelley - Newmeyer Dillion
From the rise of ransomware attacks to the recent SolarWinds-based cyber espionage campaign that struck at the very heart of the U.S. Government, it is apparent that cybersecurity is more critical than ever. COVID-19 and the remote workplace has only served to embolden cyber criminals, and cyber risk now permeates nearly every aspect of modern life from health care data to national security. Cyber insurance plays a critical role in managing cyber risk, and businesses increasingly rely on such coverage to minimize cyber losses. Because of surging cybercrime, it is estimated that the cyber insurance market will increase from $3.15 billion in 2019 to $20 billion by 2025. Having a robust cyber insurance market and ample available coverage is vital to U.S. businesses. In recognition of this reality, the New York Department of Financial Services recently issued the first guidance by a U.S. regulator on cyber insurance—a Cyber Insurance Risk Framework. A key premise of the Framework is to drive improved cybersecurity and cyber risk management, thereby reducing cyberattacks and ensuring that cyber insurance premiums do not spiral out of control. The Framework recognizes the importance of ensuring a healthy cyber insurance market, and applies to all property/casualty insurers that write cyber insurance. Read the court decision
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Reprinted courtesy of Anne Kelley, Newmeyer Dillion
Ms. Kelley may be contacted at anne.kelley@ndlf.com

False Implied Certifications in Making Payment Requests: What We Can Learn from Lance Armstrong

January 20, 2020 — Brian S. Wood & Alex Gorelik - ConsensusDocs
In April 2018, the Department of Justice announced a $5M settlement reached in its lawsuit against former professional cyclist, Lance Armstrong. While the fallout from Armstrong’s latently-admitted use of performance-enhancing drugs (“PEDs”) was well-publicized, including lost sponsorship deals, stripped Tour de France titles, and damage to his reputation, few were aware of Armstrong’s exposure to liability and criminal culpability for false claims against the government. The DOJ’s announcement reminded Armstrong and the rest of us of the golden rule of dealing with the government: honesty is the best policy. The corollary to that rule is that dishonesty is costly. Armstrong’s liability stemmed from false statements (denying the use of PEDs) he made, directly and through team members and other representatives, to U.S. Postal Service (“USPS”) representatives and to the public. USPS was the primary sponsor of the grand tour cycling team led by Armstrong. The government alleged in the lawsuit that Armstrong’s false statements were made to induce USPS to renew and increase its sponsorship fees, in violation of the False Claims Act. The Statute Enacted in 1863, the False Claims Act (“FCA”) was originally aimed at stopping and deterring frauds perpetrated by contractors against the government during the Civil War. Congress amended the FCA in the years since its enactment, but its primary focus and target have remained those who present or directly induce the submission of false or fraudulent claims. The current FCA imposes penalties on anyone who knowingly presents “a false or fraudulent claim for payment or approval” to the federal Government. A “claim” now includes direct requests to the Government for payment, as well as reimbursement requests made to the recipients of federal funds under federal benefits programs (such as Medicare). Thirty-one states, the District of Columbia, and Puerto Rico have also enacted laws imposing penalties for false claims against state agencies and their subdivisions, with most of these laws modelled after the federal FCA. Reprinted courtesy of Brian S. Wood, Smith, Currie & Hancock, LLP and Alex Gorelik, Smith, Currie & Hancock, LLP Mr. Wood may be contacted at bswood@smithcurrie.com Mr. Gorelik may be contacted at agorelik@smithcurrie.com Read the court decision
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Bert Hummel Appointed Vice Chair of State Bar of Georgia Bench & Bar Committee

October 24, 2021 — Bert Hummel - Lewis Brisbois
Atlanta, Ga. (October 4, 2021) – Atlanta Partner Bert Hummel was recently named Vice Chair of the State Bar of Georgia's Bench & Bar Committee for the 2021-2022 year. The Bench & Bar Committee identifies and facilitates solutions to issues of mutual interest between State judges and Georgia lawyers for the benefit of the bench, the bar and the public. It also oversees the annual Justice Thomas O. Marshall Professionalism Award, which honors one lawyer and one judge who have demonstrated the highest professional conduct and paramount reputation for professionalism. Read the court decision
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Reprinted courtesy of Bert Hummel, Lewis Brisbois
Mr. Hummel may be contacted at Bert.Hummel@lewisbrisbois.com

Florida Lien Law and Substantial Compliance vs. Strict Compliance

April 20, 2017 — David Adelstein - Florida Construction Legal Updates
There are literally some (or, perhaps, many!) disputes that will make you say “hmm!” The “hmm” is a euphemism for “what is a party thinking?!?” The case of Trump Endeavor 12 LLC v. Fernich, Inc., 42 Fla. L.Weekly D830a (Fla. 3d DCA 2017) is one of these cases because a party (the owner) is banking its defense on a technical “all-or-nothing” argument pertaining to whether a lienor (a supplier) substantially complied with Florida’s Lien Law because a supplier’s Notice to Owner identified the wrong general contractor. This is a challenging argument because the owner has to prove how they were adversely affected / prejudiced by the lack of substantial compliance, which is not an easy burden. This case concerns the Trump National Doral Miami project. The project consisted of a lodge project and a separate clubhouse project, both of which had different general contractors. On the lodge project, the general contractor hired a painter which, in turn, procured paint from a supplier (the lienor). The supplier visited the project and obtained the Notice of Commencement from the owner so that it could perfect its lien rights. The owner furnished the supplier the Notice of Commencement for the clubhouse project that had a different general contractor. Relying on this Notice of Commencement, the supplier served a Notice to Owner. The Notice to Owner was timely serviced however it identified the wrong contractor – it identified the general contractor for the clubhouse project instead of the lodge project. Although the supplier later learned there was a different general contractor on the lodge project, it did not remedy the issue by serving a Notice to Owner on the correct contractor. Indeed, the contractor for the lodge project learned of the Notice to Owner furnished by the supplier and that the supplier was furnishing paint to the painting subcontractor for purposes of that project. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

In Construction Your Contract May Not Always Preclude a Negligence Claim

March 30, 2016 — Christopher G. Hill – Construction Law Musings
Here at Construction Law Musings I have discussed the interaction of the so called “economic loss rule,” construction contracts and tort claims on numerous occasions. The general rule is that where a duty to perform in a certain way arises from the contract, the Virginia courts will not allow a plaintiff to turn a contract claim into a tort claim such as fraud or negligence. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Developer Transition – Washington DC Condominiums

June 29, 2017 — Nicholas D. Cowie - Maryland Condo Construction Defect Law Blog
Developer transition is the process by which governance over a condominium unit owners’ association (“condominium association”) is transferred from condominium developer to unit owner control. Below is an overview of the legal requirements in the District of Columbia that govern this transition process as well as a “transition checklist” for unit owner-elected boards of directors that have recently transitioned from developer control. TRANSITION LAW OVERVIEW PERIOD OF DEVELOPER CONTROL A developer initially controls a condominium association because it owns all unsold units in the newly created condominium. As such, the condominium developer has the controlling votes associated with majority ownership and can appoint its own employees as the initial members of the board of directors and thereby control how the association conducts its affairs. This is referred to as the “period of developer control,” during which the condominium developer makes all decisions on behalf of the condominium association. The developer also creates a condominium association’s governing documents allowing it to dictate, subject to applicable law, the procedures and time periods under which control over the association’s board of directors is ultimately transferred to the unit owners. Read the court decision
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Reprinted courtesy of Nicholas D. Cowie, Cowie & Mott, P.A.
Mr. Cowie may be contacted at ndc@cowiemott.com

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