FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

The Murky Waters Between "Good Faith" and "Bad Faith"

September 30, 2019 — Theresa A. Guertin - Saxe Doernberger & Vita
In honor of Shark Week, that annual television-event where we eagerly flip on the Discovery Channel to get our fix of these magnificent (and terrifying!) creatures, I was inspired to write about the “predatory” practices we’ve encountered recently in our construction insurance practice. The more sophisticated the business and risk management department is, the more likely they have a sophisticated insurer writing their coverage. Although peaceful coexistence is possible, that doesn’t mean that insurers won’t use every advantage available to them – compared to even large corporate insureds, insurance companies are the apex predators of the insurance industry. In order to safeguard policyholders’ interests, most states have developed a body of law (some statutory, some based on judicial decisions) requiring insurers to act in good faith when dealing with their insureds. This is typically embodied as a requirement that the insurer act “fairly and reasonably” in processing, investigating, and handling claims. If the insurer does not meet this standard, insureds may be entitled to damages above and beyond that which they could otherwise recover for breach of contract. Proving that an insurer acted in “bad faith,” however, can be like swimming against the riptide. Most states hold that bad faith requires more than just a difference of opinion between insured and insurer over the available coverage – the policyholder must show that the insurer acted “wantonly” or “maliciously,” or, in less stringent jurisdictions, that the insurer was “unreasonable.” Read the court decision
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Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita
Ms. Guertin may be contacted at tag@sdvlaw.com

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Let’s Talk About a Statutory First-Party Bad Faith Claim Against an Insurer

February 19, 2024 — David Adelstein - Florida Construction Legal Updates
Let’s talk about a statutory first-party bad faith claim against an insurer under Florida law. A recent opinion, discussed below, does a nice job providing a synopsis of a first-party statutory bad faith claim against an insurer: The Florida Legislature created the first-party bad faith cause of action by enacting section 624.155, Florida Statutes, which imposes a duty on insurers to settle their policyholders’ claims in good faith. The statutory obligation on the insurer is to timely evaluate and pay benefits owed under the insurance policy. The damages recoverable by the insured in a bad faith action are those amounts that are the reasonably foreseeable consequences of the insurer’s bad faith in resolving a claim, which include consequential damages. “[A] statutory bad faith claim under section 624.155 is ripe for litigation when there has been (1) a determination of the insurer’s liability for coverage; (2) a determination of the extent of the insured’s damages; and (3) the required [civil remedy] notice is filed pursuant to section 624.155(3)(a).” Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Purely “Compensatory” Debts Owed by Attorneys to Clients (Which Are Not Disciplinary or Punitive Fees Imposed by the State Bar) Are Dischargeable In Bankruptcy

April 28, 2016 — Renata L. Hoddinott & David W. Evans – Haight Brown & Bonesteel LLP
The United States Court of Appeals for the Ninth Circuit in Scheer v. The State Bar of California (4/14/16 – Case no. 2:14-cv-04829-JFW) reversed the district court’s affirmance of the bankruptcy court’s decision that a suspended attorney’s debt was nondischargeable in bankruptcy under 11 U.S.C. § 523(a)(7). In Scheer, the client (Clark) retained attorney Scheer to help modify his home mortgage loan. Clark paid Scheer $5,500 before any modification occurred. Clark then fired Scheer and sought return of the $5,500 under California’s mandatory attorney fee dispute arbitration program. An arbitrator concluded that, although Scheer performed competently, she violated California Civil Code §2944.7(a) by receiving advance fees for residential mortgage modification services. Although the arbitrator believed that Scheer’s violations were neither willful nor malicious, he concluded California law required a full refund of the improperly collected fees. Scheer made a few payments against the arbitration award but, claiming a lack of funds, failed to pay the outstanding balance. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Renata L. Hoddinott, Haight Brown & Bonesteel LLP Ms. Hoddinott may be contacted at rhoddinott@hbblaw.com Mr. Evans may be contacted at devans@hbblaw.com Read the court decision
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Oregon agreement to procure insurance, anti-indemnity statute, and self-insured retention

March 05, 2011 — CDCoverage.com

In Continental Casualty Ins. Co. v. Zurich American Ins. Co., No. 09-35484 (9th Cir. Oct. 28, 2010), general contractor TCR was sued by an employee of subcontractor Safeway for bodily injuries suffered while working on the project. In the subcontract, Safeway agreed to procure primary insurance providing coverage for TCR for liability arising out of Safeway’s negligence. Safeway’s CGL policy included a self-insured retention that had to be satisfied before the insurer had a duty to defend. TCR filed suit against Safeway alleging that

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Harmon Tower Demolition on Hold Due to Insurer

November 27, 2013 — CDJ STAFF
Permission for CityCenter to demolish Harmon Tower over claims of dangerous construction defects have been withdrawn by the judge in the case after the building’s insurer said it needed more time to investigate. After they were granted permission to demolish the building on August 23, CityCenter filed a claim of total loss with their insurer FM Global on August 27. Now FM Global is saying that they need to further inspect the building. Meanwhile, a demolition contractor has already gained approval to start removing the exterior glass. And things stand, it looks as if that won’t be happening on the planned date of December 2. CityCenter contends that FM Global has already done their inspections, describing FM Global’s prior actions as “the most extensive investigation of anyone,” according to Mark Ferrario, an attorney for CityCenter. Also, the initial plan to implode the building has been rejected. Should demolition proceed, the building will be dismantled floor by floor. Read the court decision
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U.S. Supreme Court Allows Climate Change Lawsuits to Proceed in State Court

May 01, 2023 — George Leahy - Lewis Brisbois
Washington, D.C. (April 25, 2023) - On Monday, April 24, the U.S. Supreme Court refused to hear appeals by several major energy companies that sought to remove lawsuits filed by state and local governments from state court into federal court. The Court’s certiorari denials reject companies’ appeals in five separate cases, which involved claims brought by municipalities in Colorado, Maryland, California, Hawaii, and Rhode Island. Each municipality claims that it has been harmed by the effects of climate change, allegedly attributed to the companies’ carbon emissions. The Court’s denials effectively allow the lawsuits to continue in state court, often seen as favorable for plaintiffs due to a greater potential for jury trials and associated damages awards than might be available in federal court. Following a 2021 Supreme Court ruling in a related case that granted the companies an additional chance to argue that their cases should be heard in federal court, the lower federal appeals courts in each of the five cases concluded that the companies had not established sufficient grounds to establish proper venue and jurisdiction in federal court. The Supreme Court’s April 24 denial leaves those decisions unaltered, allowing the lawsuits to continue in state court for further consideration. Read the court decision
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Reprinted courtesy of George Leahy, Lewis Brisbois

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Traub Lieberman Attorneys Lisa Rolle and Christopher Acosta Win Motion to Dismiss in Bronx County Trip and Fall

May 22, 2023 — Lisa M. Rolle & Christopher D. Acosta - Traub Lieberman
Traub Lieberman Partner Lisa Rolle and Associate Christopher Acosta won a motion to dismiss in a trip and fall accident complaint and cross-claim brought before the New York Supreme Court, Bronx County. The underlying accident allegedly occurred on the sidewalk abutting the subject premises, which is owned by the Property Owner and was leased to a Pest Control Company. The Property Owner brought a cross-claim against the Pest Control Company as a result of the initial complaint. Reprinted courtesy of Lisa M. Rolle, Traub Lieberman and Christopher D. Acosta, Traub Lieberman Ms. Rolle may be contacted at lrolle@tlsslaw.com Mr. Acosta may be contacted at cacosta@tlsslaw.com Read the full story... Read the court decision
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LAX Runway Lawsuit a Year Too Late?

January 17, 2014 — Beverley BevenFlorez-CDJ STAFF
The City of Los Angeles filed a lawsuit against Tutor-Saliba Corp. and O&G Industries Inc., which had created a joint venture to rebuild Runway 25L at Los Angeles International Airport (LAX), according to Brian Sumers writing for the Daily Breeze. However, lawyers for the construction companies are alleging that the lawsuit was filed a year too late: “…the complaint’s first four causes of action against Joint Venture are indisputably barred under California Law,” lawyers from Castle & Associates claimed. This news came soon after a plane blew a tire on the same runway involved in the lawsuit, as reported by the Los Angeles Times. The blown out tire may not be related to the alleged construction defects: “The runway is usable,” Nancy Castles, spokeswoman for Los Angeles World airports told the Los Angeles Times. Castles explained that “the lawsuit is about ‘deterioration’ and that at some point the runway will need to be rebuilt, but that time is not now.” Read the full story at the Daily Breeze... Read the full story at the Los Angeles Times... Read the court decision
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