FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

A Chicago Skyscraper Cements the Legacy of a Visionary Postmodern Architect

December 31, 2024 — Mark Byrnes - Bloomberg
A handsome and eclectic stretch of buildings along Michigan Avenue known as “Chicago’s Front Door” offers a view that reflects the city’s status as a destination for serious architecture. Louis Sullivan and Dankmar Adler’s Auditorium Building, where a young Frank Lloyd Wright designed interiors, is right there on Grant Park; so is Daniel Burnham’s Railway Exchange, where he drew up the 1909 Plan of Chicago. Now a glass-and-aluminum apartment tower anchors the southern end of this scene, filling in a rare gap within this landmarked streetwall and putting a bow on the career of another heroic figure in Chicago’s architectural history: Helmut Jahn. Read the court decision
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Reprinted courtesy of Mark Byrnes, Bloomberg

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The Fourth Circuit Applies a Consequential Damages Exclusionary Clause and the Economic Loss Doctrine to Bar Claims by a Subrogating Insurer Seeking to Recover Over $19 Million in Damages

February 23, 2016 — William L. Doerler – White and Williams LLP
In Severn Peanut Company, Inc. v. Industrial Fumigant Company, 807 F.3d 88 (4th Cir. (N.C.) 2015), the United States Court of Appeals for the Fourth Circuit (Fourth Circuit), applying North Carolina law, considered whether a consequential damages clause in a contract between the Severn Peanut Company, Inc. (Severn) and Industrial Fumigant Company (IFC) barred Severn and its subrogating insurer, Travelers Property Casualty Company of America (Travelers), from recovering over $19 million in damages that Severn suffered as the result of a fire and explosion at its Severn, North Carolina plant. The Fourth Circuit, rejecting Severn’s unconscionability and public policy arguments related to the consequential damages clause and finding that the economic loss doctrine barred Severn from pursuing negligence claims, affirmed the trial court’s judgment granting summary judgment in IFC’s favor. As noted in the Severn decision, the facts showed that Severn and IFC signed a Pesticide Application Agreement (PAA) requiring IFC to use phosphine, a pesticide, to fumigate Severn’s peanut storage dome and to apply the pesticide “in a manner consistent with instructions . . . and precautions set forth in [its] labeling.” With respect to damages, the PAA specified that IFC’s charge for its services, $8,604 plus applicable sales tax, was “based solely upon the value of the services provided” and was not “related to the value of [Severn’s] premises or the contents therein.” In addition, the PAA specified that the $8,604 sum to which the parties agreed was not “sufficient to warrant IFC assuming any risk of incidental or consequential damages” to Severn’s “property, product, equipment, downtime, or loss of business.” Read the court decision
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Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

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Illinois Supreme Court Rules Labor Costs Not Depreciated to Determine Actual Cash Value

November 19, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The Illinois Supreme Court determined that a homeowner insurer may not depreciate labor costs in calculating actual cash value (ACV) after a loss under the policy. Sproull v. State Farm Fire and Casualty Co., 2021 Ill. LEXIS 619 (Ill. Sept. 23, 2021). Plaintiff was insured under a homeowner's policy that provided replacement cost coverage for structural damage. Under the policy, the insured would initially receive an ACV payment but then could receive replacement cost value (RCV) if repairs or replacement were completed within two years and the insurer was timely notified. The policy did not define "actual cash value." Plaintiff suffered wind damage to his residence and timely submitted a property damage claim to State Farm. The adjuster determined that the building sustained a loss with RCV of $1711.54. In calculating ACV, State Farm began with the RCV and then subtracted plaintiff's $1000 deductible and an additional $394.36, including taxes, for depreciation. Plaintiff thus received an ACV payment of $317.18. Plaintiff claimed that he was underpaid on his ACV claim because State Farm depreciated labor, which is intangible and thus not subject to wear, tear, and obsolescence. Further, labor should not have been depreciated because it was not susceptible to aging or wearing and its value did not diminish over time. 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

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Rescission of Policy for Misrepresentation in Application Reversed

August 17, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The California Court of Appeal reversed the trial court's issuance of summary judgment to the insurer, finding that the insured did not make misrepresentations when applying for a policy to cover rental property. Duarte v. Pacific Spec. Ins. Co., 13 Cal. App. 5th 45 (2017). Duarte rented his house to Jennifer Pleasants. Duarte gave her a 45-day notice to quit in February 2012, but she did not leave. Two months later, Duarte applied for landlord-tenant coverage with Pacific. The application was submitted electronically and Pacific issued a policy to Durate the same day. In June 2012, Pleasants filed a lawsuit against Duarte, alleging ten causes of action arising from habitability defects which began in 2009. The suit claimed Pleasants had notified Duarte about the defects, she had suffered emotional distress and physical injury, and over paid rent, and had out-of-pocket expenses. 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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Alabama Federal Magistrate Recommends Dismissal of Construction Defect Declaratory Judgment Action Due to Expanded Duty to Defend Standard

May 31, 2021 — Anthony L. Miscioscia & Margo Meta - White and Williams
While the starting point for assessing an insurer’s duty to defend requires comparing the allegations contained within a complaint to the language contained within the insured’s policy, the majority of states require an insurer to do more. In Alabama, a failure of the underlying complaint to allege damages falling within the policy’s terms is not necessarily fatal to coverage – if there are facts provable by admissible evidence to place the loss within coverage. The U.S. District Court for the Southern District of Alabama recently examined Alabama’s broadened duty to defend standard in Frankenmuth Mutual Insurance Company v. Gates Builders, No. 20-00596, 2021 U.S. Dist. LEXIS 83645 (S.D. Ala. Apr. 29, 2021). In Frankenmuth, the magistrate judge was tasked with determining whether the court should abstain from hearing an insurer’s declaratory judgment coverage action pending the resolution of the underlying state court action. The underlying state court action arose out of an allegedly defective construction project. Frankenmuth’s insured, Gates Builders, was hired to perform exterior and structural rehabilitation work at the Resort Conference Center Condominium (the Condominium) in Gulf Shores, Alabama. The project began in July 2014 and concluded in June 2015. In 2019, Gates Builders was informed that the Condominium’s decks were sagging. Gates Builders shored up the decks and provided the Condominium with a quote for the cost of repairs. In July 2020, the Condominium’s Association filed suit, alleging that the work performed in 2014 and 2015 was faulty and had caused damage to the Condominium. Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Margo Meta, White and Williams Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Ms. Meta may be contacted at metam@whiteandwilliams.com Read the court decision
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Bay Area Firm Offers Construction Consulting to Remodels

October 02, 2013 — CDJ STAFF
Homeowners sometimes aren’t too clear on questions of “building codes, permit process or where to find the right materials,” according to Benoni Mocanu, the owner of MB Development. He’s ready to step in an help by offering construction consulting to homeowners doing their own remodeling projects. In addition to providing the advice to help them through their projects, they’re ready to step in if a homeowner finds that they can’t finish the project. Read the court decision
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Contractor Succeeds At the Supreme Court Against Public Owner – Obtaining Fee Award and Determination The City Acted In Bad Faith

September 20, 2021 — Lindsay T. Watkins - Ahlers Cressman & Sleight PLLC
A contractor won a rare but much-deserved victory at the Supreme Court on July 8, 2021 in Conway Construction Co. v. City of Puyallup, 197 Wn.2d 825, 490 P.2d 221 (2021). The case, which involved an aggressive stance by a public owner:

• confirmed that the public owner bears the burden of demonstrating a termination for default is justified,
• reaffirmed the requirement to provide an opportunity to cure, and
• rejected the public owner’s attempts to escape its own contract language that the contractor relied upon.

John Ahlers and Lindsay Watkins of Ahlers Cressman and Sleight and Jamie Becker of Osborne Construction submitted the Amicus Brief for the Associated General Contractors (AGC) of Washington in support of Conway to the Supreme Court. Read the court decision
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Reprinted courtesy of Lindsay T. Watkins, Ahlers Cressman & Sleight PLLC
Ms. Watkins may be contacted at Lindsay.Watkins@acslawyers.com

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Is Your Contract “Mission Essential?” Recovering Costs for Performing During a Force Majeure Event Under Federal Regulations

May 10, 2022 — Joneis M. Phan & Sarah K. Bloom - ConsensusDocs
Federal contractors have faced unprecedented challenges performing during the COVID-19 pandemic. Additional costs have included delays and inefficiencies, site closures, quarantines, unavailability of supplies and materials, and full shutdowns of subcontractor operations. For contractors performing under fixed price contracts, the cost impact of COVID-19 was likely severe. The Federal Acquisition Regulation (“FAR”) recognizes “epidemics” as a force majeure event that may excuse non-performance. Many federal contracts include some version of the Default clause, which prevents the government from terminating a contractor for default due to impacts of force majeure events that are beyond a contractor’s control, such as an epidemic. See, e.g., FAR 52.249-10. See also Pernix Serka Joint Venture v. Dep’t of State, CBCA No. 5683 (Apr. 20. 2020). The Default clause, however, operates as a shield from liability, not a sword authorizing recovery. Contractors are now left wondering whether any avenue exists to recover additional costs incurred after performing in the face of the COVID-19 pandemic. In response to a likely influx of claims and requests for equitable adjustment due to COVID-19 impacts, the federal government largely took the position that contractors were entitled to extensions of time, but not to additional costs. This article explores the avenues that may be available for contractors to recover costs for performing during a force majeure event that would otherwise be non-compensable. Reprinted courtesy of Joneis M. Phan, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs and Sarah K. Bloom, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs). Mr. Phan may be contacted at jphan@watttieder.com Ms. Bloom may be contacted at sbloom@watttieder.com Read the court decision
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