Fairfield Connecticut Building Expert Directory

Professor Senet’s List of 25 Decisions Every California Construction Lawyer Should Know:

January 17, 2022 — Ted Senet - Gibbs Giden

Aas v. Superior Court (2000) 24 Cal. 4th 627 – economic loss rule
Amelco Electric v. City of Thousand Oaks ( (2002) 27 Cal. 4th 228 – abandonment does not apply to public works – total cost theory is allowed
Beacon Residential Community Association v. Skidmore, Owings & Merrill (2014) 59 Cal. 4th 568 – architect liable in absence of privity
Cates Const., Inc. v. Talbot Partners (1999) 21 Cal.4th 28 – no tort recovery on bonds – performance bonds can cover contract warranties
Condon-Johnson & Associates, Inc. v. Sacramento Municipal Utility Dist., 149 Cal. App. 4th 1384 – liability for concealed conditions
Connolly Development, Inc. v. Superior Court of Merced County (1976) 17 Cal. 3d 803 – mechanic lien remedy is constitutional
Crawford v. Weather Shield Mfg. (2008) 44 Cal. 4th 541 – indemnity implies obligation to defend [now limited to commercial contracts under CCP 2782 (c)–(h)]

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Reprinted courtesy of Ted Senet, Gibbs Gidden
Mr. Senet may be contacted at tsenet@gibbsgiden.com

Property Insurance Exclusion for Constant or Repeated Leakage of Water

March 14, 2018 — David Adelstein – Florida Construction Legal Updates
A property insurance policy, no different than any insurance policy, contains exclusions for events that are NOT covered under the terms of the policy. One such common exclusion in a property insurance policy is an exclusion for damages caused by "constant or repeated seepage or leakage of water…over a period of 14 or more days." The application of this exclusion was discussed in the recent opinion of Hicks v. American Integrity Ins. Co. of Florida, 43 Fla. L. Weekly D446a (Fla. 5th DCA 2018). In this case, while the insured was out of town, the water line to his refrigerator started to leak. When the insured return home over a month later, the supply line was discharging almost a thousand gallons of water per day. The insured submitted a property insurance claim. The property insurer engaged a consultant that opined (likely, correctly) that the water line had been leaking for at least five weeks. Based on the above-mentioned exclusion, i.e., that water had been constantly leaking for over a period of 14 days, the insurer denied coverage. This denial led to the inevitable coverage dispute. 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

Insured's Claim for Water Damage Dismissed with Leave to Amend

August 12, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The court granted the insurer's motion to dismiss the insured's claim for water damage under a homeowners' policy, but granted leave to amend. Thompson v. State Farm Gen. Ins. Co., 2024 U.S. Dist. LEXIS 98486 (C.D. Cal. June 3, 2024). The insureds' first amended complaint alleged they "suffered a sudden and accidental water loss below their slab in their home." A plumber hired by the insureds discovered "a copper pipe burst inside a structural concrete footing between a manifold in the living room and the water heater." The insureds notified their insurer, State Farm. Claim adjuster Andrea Acevedo conducted a visual inspection. The complaint alleged she did not "inspect or view the pipe, or have a testing conducted on the pipe." Acevedo sent a letter denying the insureds' claim based upon her finding that "because the loss was caused by a slab leak, there is no coverage available for the loss." The letter explained that the hot water supply line under the home failed due to wear, tear, deterioration and/or electrolysis. The predominant cause of loss to the failed pipe was due to one or a combination of rust, electrolysis, corrosion, wear, tear and/or deterioration. The policy did not cover water damage caused by water from below the surface of the ground. Further coverage for wear, tear, deterioration, rot, mold, maintenance, water from below the surface of the ground and a continuous or repeated seepage or leakage of water was excluded. 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

Supreme Court Eliminates Judicial 'Chevron' Deference to Federal Agency Statutory Interpretations

July 31, 2024 — Jane C. Luxton - Lewis Brisbois
Washington, D.C. (July 1, 2024) – In a much-anticipated decision, on June 28, 2024, the Supreme Court issued a sweeping opinion “overrul[ing]” a 40-year old precedent that required judges to defer to federal agency interpretations of their governing statutes when those laws were ambiguous or silent. Loper Bright Enterprises v. Raimondo, et al. No. 22-451 (2024), overruling Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The decision means that courts will no longer give special weight to an agency’s view of the scope of its regulatory powers but must apply independent judgment in deciding “whether an agency has acted within its statutory authority.” Loper Bright, slip op. at 35. Taking pains to explain that the new ruling would not allow for reversals of cases previously decided under the Chevron doctrine, the Court left no doubt that, in the words of Justice Neil Gorsuch, “[t]oday, the Court places a tombstone on Chevron no one can miss.” Id., Gorsuch Concurring Opinion at 1. Writing for a 6-2 majority, Chief Justice Roberts forcefully condemned the Chevron-based principle that courts should defer to a federal agency’s interpretation of the scope of its legal authority, rejecting the concept that agencies have any special expertise in statutory interpretation, a field reserved to the courts, not the executive branch, under Article III of the Constitution and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Read the court decision
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Reprinted courtesy of Jane C. Luxton, Lewis Brisbois
Ms. Luxton may be contacted at Jane.Luxton@lewisbrisbois.com

President Trump’s “Buy American, Hire American” Executive Order and the Construction Industry

June 05, 2017 — Garret Murai - California Construction Law Blog
On April 18, 2017, President Trump signed Executive Order No. 13788 implementing his “Buy American, Hire American” campaign promise. Federal construction contractors familiar with “Buy American” clauses in federal contracts under the Federal Acquisition Regulations (FAR)–which require materials to be manufactured in the United States (or, depending on the clause, not manufactured in certain countries) unless a waiver is obtained–have waited anxiously to see what Trump’s “Buy American, Hire American” promise would mean for them. Well . . . as it turns out, not much, at least not yet. 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

A Downside of Associational Standing - HOA's Claims Against Subcontractors Barred by Statute of Limitations

March 28, 2012 — Bret Cogdill, Colorado Construction Litigation

In multi-family construction defect litigation in Colorado, homeowners associations rely on associational standing to pursue claims affecting more than two units and to bring claims covering an entire development. This practice broadens an association’s case beyond what individual, aggrieved owners would otherwise bring on their own against a developer or builder-vendor. However, reliance on associational standing to combine homeowners’ defect claims into a single lawsuit has its drawbacks to homeowners.

A recent order in the case Villa Mirage Condominium Owners’ Association, Inc., v. Stetson 162, LLC, et al., in El Paso County District Court, presents an example. There, the HOA unsuccessfully sought a determination from the court that its claims against subcontractors were not barred by the statute of limitations. To do so, the HOAs attempted to apply the Colorado Common Interest Ownership Act (“CCIOA”), which governs the creation and operation of HOAs, and a statute intended to apply to persons under a legal disability.

Under CCIOA, during the period of “declarant control” the developer may appoint members to the association’s executive board until sufficient homeowners have moved into the development and taken seats on the board.

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Reprinted courtesy of Bret Cogdill of Higgins, Hopkins, McClain & Roswell, LLC. Mr. Cogdill can be contacted at cogdill@hhmrlaw.com.

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Actual Cost Value Includes Depreciation of Repair Labor Costs

November 07, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The court granted the insurer's motion to dismiss after determining that benefits paid for actual cost value (ACV) did not include repair or replacement labor costs. Shahan v. Allstate Vehicle & Prop. Ins. Co., 2022 U.S. Dist. LEXIS 135488 (W.D. La. July 29, 2022). Hurricane Laura damaged the insured's home. She filed a claim with Allstate under her homeowners policy. Allstate issued payment. The insured filed suit alleging Allstate wrongfully withheld amounts by depreciating labor when calculating the ACV of the damaged property. Allstate moved to dismiss. The policy was a replacement cost policy where the insured would receive the actual cash value of her insured property when it was damaged or destroyed by a covered peril. ACV was calculated by taking the repair/replacment which included both material and labor, and then deducting for depreciation. If no repairs or replacements were made, the insured was paid the ACV. If repairs or replacement was done, Allstate reimbursed the insured for the depreciation deduction. The insured challenged Allstate's refusal to pay 100% of the future labor costs, without any depreciation, even if the insured did not replace or repair the damaged property. 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

Framework, Tallest Mass Timber Project in the U.S., Is On Hold

August 07, 2018 — Nadine M. Post - Engineering News-Record
The tallest mass-timber building development in the U.S. is "on hold for the foreseeable future," according to the developer, named project^. The 12-story mixed-use building, known as Framework, has been under development in Portland, Ore., since 2014. Construction was first delayed a year ago and currently is postponed because of changing market conditions, which have had a negative impact on the development's bottom line. These include inflation, escalating construction costs and fluctuations in the tax credit market, says the developer. 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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