FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Fracking Fears Grow as Oklahoma Hit by More Earthquakes Than California

July 09, 2014 — Zain Shauk – Bloomberg
Squinting into a laptop perched on the back of his pickup, Austin Holland searches for a signal from a coffee-can-sized sensor buried under the grassy prairie. Holland, Oklahoma’s seismology chief, is determined to find the cause of an unprecedented earthquake epidemic in the state. And he suspects pumping wastewater from oil and gas drilling back into the Earth has a lot to do with it. “If my research takes me to the point where we determine the safest thing to do is to shut down injection -- and consequently production -- in large portions of the state, then that’s what we have to do,” Holland said. “That’s for the politicians and the regulators to work out.” So far this year, Oklahoma has had more than twice the number of earthquakes as California, making it the most seismically active state in the continental U.S. As recently as 2003, Oklahoma was ranked 17th for earthquakes. That shift has given rise to concern among communities and environmentalists that injecting vast amounts of wastewater back into the ground is contributing to the rise in Oklahoma’s quakes. The state pumps about 350,000 barrels of oil a day, making it the fifth largest producer in the U.S. Read the court decision
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Reprinted courtesy of Zain Shauk, Bloomberg
Mr. Shauk may be contacted at zshauk@bloomberg.net

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Pancakes Decision Survives Challenge Before Hawaii Appellate Court

March 12, 2015 — Tred R. Eyerly – Insurance Law Hawaii
In 1997, the Hawaii Intermediate Court of Appeals (ICA) decided Pancakes of Hawaii, Inc. v. Pomare Prop. Corp., 85 Haw. 286, 944 P.2d 83 (Haw. Ct. App. 1997). Although not an insurance coverage case, Pancakes addressed the duty to defend in terms of a contractual indemnity obligation. Under challenge in a recent appeal before the ICA, the Court reaffirmed the holding in Pancakes. Arthur v. State of Hawaii, Dept. of Hawaiian Home Lands, 2015 Haw. App. LEXIS 109 (Haw. Ct. App. Feb. 27, 2015). The decision is long with detailed facts complicated and many indemnities running in favor of various parties. This post focuses on the decision's discussion of Pancakes. A resident, Mona Arthur, of the Kalawahine Streamside Housing Development, was killed when she apparently slipped and fell from a hillside adjacent to the project. She was on the hillside tending to her garden there. At the bottom of the hill was a two foot fence in front of a drainage ditch, where Mona allegedly hit her head. 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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Changes To Commercial Item Contracting

May 29, 2023 — Marcos R. Gonzalez - ConsensusDocs
The FAR Council has recently published two changes to commercial item contracting that clarify the definition of commercial services and simplify commercial item determinations (“CIDs”) for contracting officers (“COs”). Since the 1990s, the federal government has encouraged the purchase of commercial items to ease the regulatory burden on vendors who have not previously conducted federal business, encourage innovation, and lower prices[1]. These different objectives (cost savings, broadening markets, innovation) often have corollary policies; for example, vendors who are not accustomed to the regulatory burdens of government business are encouraged to enter the market by being exempted from a slew of regulations (found in standard commercial items clause FAR 52.212-4). As a result, the regulations applicable to commercial item contracting are those required by statute and executive orders in addition to generic commercial terms that may be tailored due to potential variation in commercial terms.[2] Commercial Products v. Commercial Services The first change, in effect since November 2021 pursuant to the 2019 National Defense Authorization (“NDAA”), split the old definition of “commercial item” into two separate definitions: “commercial product” and “commercial service.”[3] We are now blessed with the following definitions of commercial products and services, respectively: Commercial product means— (1) A product, other than real property, that is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes, and– (i) Has been sold, leased, or licensed to the general public; or (ii) Has been offered for sale, lease, or license to the general public; Reprinted courtesy of Marcos R. Gonzalez, Peckar & Abramson, P.C. Mr. Gonzalez may be contacted at mgonzalez@pecklaw.com Read the court decision
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EPA Seeks Comment on Clean Water Act Section 401 Certification Rule

July 19, 2021 — Karen Bennett - Lewis Brisbois
The Environmental Protection Agency (EPA) announced that it will revise a 2020 final rule clarifying requirements for water quality certification under the Clean Water Act (CWA). 85 Fed. Reg. 42210 (June 2, 2021). CWA Section 401 requires states and tribes to certify that any discharges associated with a federal permit will comply with applicable state or tribal water quality requirements. In an effort to eliminate 401 certification being used as a tool for delaying or imposing conditions unrelated to protecting water quality on federal permits, the 2020 rule established limits on the scope and timeline for review and required any conditions on certification to be water-quality related. State and Tribal governments and environmental groups challenged the rule, arguing it constrained state and tribal decision-making authority by limiting the term “other appropriate requirements of State law” in CWA Section 401(d) to “water quality requirements” and “point source discharges.” With EPA’s decision to revise the rule, many believe these same scope and timing limitations will be targets for change. Clients with experience, positive or negative, under the 2020 rule should consider submitting comments by the August 2, 2021 deadline. Read the court decision
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Reprinted courtesy of Karen Bennett, Lewis Brisbois
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com

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Construction Litigation Roundup: “The Jury Is Still Out”

October 30, 2023 — Daniel Lund III - Lexology
“The Seventh Amendment guarantees the right to a trial by jury for a legal claim in a civil action.” So, isn’t the law, well, the law? Well, perhaps. Some axioms to remember in contracting are that parties are typically able to agree in a contract to anything that is lawful, and that all such lawful agreements essentially become the “law” between the parties. It is on these principles that courts issue jurisprudence which becomes binding on future litigants – for example, concerning waiver of any right to trial by jury. Hence, when a second-tier subcontractor on a federal project sought a jury for a lawsuit it had against a general contractor’s sureties, the sub was successfully rebuffed by the sureties based upon a waiver to trial by jury contained in the relevant subcontract. The court noted various matters to be considered in connection with the generally enforceable jury waiver – including the conspicuousness of the waiver (and, therefore, whether the subcontractor “knowingly” agreed to the waiver), as well as the relative bargaining power of the parties to the agreement (here, the sub was self-proclaimed to be a “leader in the construction contracting field”) – and affirmed the legality of the waiver. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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Expanded Virginia Court of Appeals Leads to Policyholder Relief

January 29, 2024 — Michael S. Levine & Olivia G. Bushman - Hunton Insurance Recovery Blog
Exercising its newly expanded jurisdiction that now permits Virginia’s intermediate appellate courts to hear insurance coverage disputes, the Court of Appeals recently reversed a lower court decision that allowed a two-year “Suits Against Us” provision to serve as a basis for an insurer’s refusal to reimburse repair and replacement costs incurred more than two years after the date of loss. Bowman II v. State Farm Fire and Casualty Co., Record No. 1256-22-3 (Nov. 21, 2023). CAV (unpublished opinion). In the proceeding below, the circuit court found no justiciable controversy and dismissed the complaint where repairs to the policyholder’s fire-damaged home continued more than two years after the date of the fire. The circuit court relied on a two-year limitation in the policy that governed the period within which the policyholder must bring suit against the insurer. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Olivia G. Bushman, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Bushman may be contacted at obushman@HuntonAK.com Read the court decision
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MSJ Granted Equates to a Huge Victory for BWB&O & City of Murrieta Fire Department!

May 30, 2022 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
BWB&O Partner Tyler D. Offenhauser and Senior Associate Kevin B. Wheeler prevailed on their Motion for Summary Judgment (“MSJ”) on behalf of a public entity, the City of Murrieta Fire Department today! As a matter of background, authorities were first called to a residence in Murrieta after a report of a gas line rupture. Firefighters and Southern California Gas Company responded to the call. As a crew from SoCalGas was trying to shut off the gas an explosion happened, leveling the home and killing 31-year-old SoCalGas employee Wade Kilpatrick. 30 surrounding homeowners have now alleged personal injuries, including TBI, as a result of the explosion. News agencies reported that Plaintiff Anthony Borel sustained a severe head injury and was placed in a coma. Plaintiff’s injuries included an epidural hematoma, subarachnoid hemorrhage, bilateral corneal abrasions, right orbital fracture, right temporal fracture, right maxillary fracture, frontal skull fracture, 18% partial-thickness burns to the face, abdomen, arms and legs, and a severe TBI with cognitive deficiencies. Plaintiff claimed damages in excess of $20,000,000.00. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Hirer Not Liable Under Privette Doctrine Where Hirer Had Knowledge of Condition, but not that Condition Posed a Concealed Hazard

December 11, 2023 — Garret Murai - California Construction Law Blog
The Privette doctrine, so-called because of a case of the same name, Privette v. Superior Court, 5 Cal.4th 698 (1993), provides a rebuttable presumption that a hirer is not liable for workplace injuries sustained by employees of hired parties. In other words, if a property owner hires a contractor, and one of the contractor’s employees gets injured while working on the property, there is a rebuttable presumption that the property owner is not liable for the employee’s injuries, the rationale being that because the contractor is required to carry workers’ compensation insurance the contractor is in the better position to absorb losses incurred a workplace injury. There are, however, two widely recognized exceptions to the Privette doctrine. The first, is the Hooker exception, again named after a case of the same name, Hooker v. Department of Transportation, 27 Cal.th 198 (2002), which provides that a hirer is liable for injuries to a hired parties’ employees, if the hirer retained control over the work being performed, negligently exercised that control, and the negative exercise of that control contributed to the employee’s injury. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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