FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Liability Insurer’s Duty To Defend Insured Is Broader Than Its Duty To Indemnify

June 03, 2019 — David Adelstein - Florida Construction Legal Updates
When it comes to liability insurance, an insurer’s duty to defend its insured from a third-party claim is much broader than its duty to indemnify. This broad duty to defend an insured is very important and, as an insured, you need to know this. “A liability insurer’s obligation, with respect to its duty to defend, is not determined by the insured’s actual liability but rather by whether the alleged basis of the action against the insurer falls within the policy’s coverage.” Advanced Systems, Inc. v. Gotham Ins. Co., 44 Fla. L. Weekly D996b (Fla. 3d DCA 2019) (internal quotation omitted). This means: Even where the complaint alleges facts partially within and partially outside the coverage of a policy, the insurer is nonetheless obligated to defend the entire suit, even if the facts later demonstrate that no coverage actually exists. And, the insurer must defend even if the allegations in the complaint are factually incorrect or meritless. As such, an insurer is obligated to defend a claim even if it is uncertain whether coverage exists under the policy. Furthermore, once a court finds that there is a duty to defend, the duty will continue even though it is ultimately determined that the alleged cause of action is groundless and no liability is found within the policy provisions defining coverage. Advanced Systems, supra(internal citations and quotations omitted). 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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When a Request for Equitable Adjustment Should Be Treated as a Claim Under the Contract Disputes Act

August 29, 2022 — David Adelstein - Florida Construction Legal Updates
In federal contracting, contractors are sometimes torn about submitting a request for equitable adjustment (known as an “REA” under 48 C.F.R. 252.243-7002) or submitting a formal claim under the Contract Disputes Act (41 U.S.C. s. 7103), the latter requiring a final decision by the contracting officer and starts the clock with respect to interest and preserving rights. It is also sometimes not easy for the contracting officer receiving an REA to determine whether the REA is actually a claim under the Contract Disputes Act requiring more immediate action. This recent take by the United States Court of Appeals for the Federal Circuit hits the nail on the head:

We recognize that contracting officers will sometimes face the difficult challenge of determining whether a request for equitable adjustment is also a claim. Contractors must choose between submitting a claim—which starts the interest clock but requires the contracting officer to issue a final decision within 60 days—and submitting a mere request for equitable adjustment—which does not start the interest clock but gives the contractor more time to negotiate a settlement and possibly avoid hefty legal fees. The overlap between these two types of documents might create room for gamesmanship. For example, a contractor could submit a document that is a claim—starting the interest clock—but appears to be a mere request for equitable adjustment—causing the contracting officer to not issue a final decision within the 60-day deadline and allowing interest to accrue for months or years. But the government has tools to address this challenge: The contracting officer can communicate to the contractor that she is going to treat the document as a claim and issue a final decision within 60 days. Or the government can explicitly require the contractor to propose settlement terms and attempt to settle disputes before submitting a claim to the contracting officer for a final decision.

Zafer Construction Company v. U.S., 2022 WL 2793596, *5 (Fed.Cir. 2022).

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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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Developer Sues TVA After It Halts Nuke Site Sale

December 19, 2018 — Mary B. Powers - Engineering News-Record
The multibillion-dollar completion of a nuclear unit at the Tennessee Valley Authority’s unfinished 1,260-MW Bellefonte plant in Alabama is in limbo after the federal power producer refused to complete its sale to Nuclear Development LLC, which has since filed a breach of contract complaint in federal district court. Read the court decision
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Reprinted courtesy of Mary B. Powers, ENR
ENR may be contacted at ENR.com@bnpmedia.com

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Undercover Sting Nabs Eleven Illegal Contractors in California

January 27, 2014 — Beverley BevenFlorez-CDJ STAFF
A sting operation conducted in Rancho Murieta, California on January 16th by the Statewide Investigative Fraud Team, with assistance from the state Department of Consumer Affairs Division of Investigation netted “11 people accused of illegal, unlicensed home improvement contracting,” reported the Merced Sun-Star. The news source stated that “the statewide drought” provided “a new angle in approaching conservation-minded property owners, according to the Contractors State License Board.” The accusations included “illegal contracting after seeking bids for exterior painting, fencing and landscaping jobs,” according to the Merced Sun-Star. The eleven individuals received notices to appear in Sacramento Superior Court for arraignment March 27th. Read the court decision
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Florida Condo Collapse Shows Town’s Rich, Middle-Class Divide

August 04, 2021 — The Associated Press (Terry Spencer & Freida Frisaro) - Bloomberg
The condo tower collapse in Surfside could exacerbate the division that already exists between the tiny Florida town’s new luxury buildings built for the global elite and those constructed decades ago for the middle class. It is already creating headaches for some small businesses. The town has seen the construction of numerous new condos in recent years, where large oceanfront units exceeding 3,000 square feet (280 square meters) with modern amenities can fetch $10 million and up. Meanwhile, small units of 800 square feet (75 square meters) in neighboring condo buildings constructed decades ago can be had for $400,000. Ana Bozovic, a South Florida real estate broker, said the June 24 collapse of the 40-year-old, middle-class Champlain Towers South will exacerbate this division. At least 46 people were killed and more than 90 remain missing. Read the court decision
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Reprinted courtesy of Bloomberg

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Third Circuit Holds That Duty to Indemnify "Follows" Duty to Defend

December 27, 2021 — Jeffrey J. Vita - Saxe Doernberger & Vita, P.C.
In a win for policyholders, the Third Circuit Court of Appeals recently affirmed a District Court’s 2018 ruling, which held that the duty to indemnify follows the duty to defend where a settlement precludes a determination on the facts of the case relative to liability and apportionment. In Liberty Mutual Insurance Co. v. Penn National Mutual Casualty Insurance Co.,1 a large concrete panel collapsed and killed a construction worker at a construction site in New Kensington, Pennsylvania. Cost Company (“Cost”), Liberty Mutual’s insured, was a masonry subcontractor on the project and had further subcontracted with Pittsburgh Flexicore Co. (“Flexicore”), Penn National’s insured, for the concrete panels. Cost’s subcontract agreement required Flexicore to name Cost as an additional insured under its general liability policy issued by Penn National. When the construction worker’s widow filed a wrongful death lawsuit against Cost and Flexicore, Cost demanded that Penn National defend and indemnify it as an additional insured under the policy. Penn National refused, arguing that any additional insured status had terminated at the conclusion of Flexicore’s work for Cost. As a result, Liberty Mutual defended Cost in the lawsuit, which was ultimately settled. Read the court decision
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Reprinted courtesy of Jeffrey J. Vita, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at JVita@sdvlaw.com

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New Jersey Court Rules on Statue of Repose Case

May 26, 2011 — CDJ STAFF

A three-judge panel issued a per curium ruling on May 23 in Fairview Heights Condo. v. Investors (N.J. Super., 2011), a case which the members of a condominium board argued: “that the judge erred by: 1) dismissing plaintiff’s claims against RLI based upon the statute of repose; 2) dismissing the breach of fiduciary duty claims against the Luppinos based upon a lack of expert opinion; 3) barring the testimony of Gonzalez; and 4) barring the May 23, 1989 job site report.” The court rejected all claims from the condominium board.

The court found that the building must be unsafe for the statute of repose to apply. They noted, “the judge made no findings on whether the water seepage, or the property damage caused by such seepage, in any way rendered the building, or any of the units, unsafe.” Further, “without a specific finding on the question of whether the defects had rendered the building ‘unsafe,’ defendants were not entitled to the benefit of the ten-year statute of repose.“

On the second point, the court also upheld the lower court’s findings regarding the management company:

“The report submitted by Berman establishes that the EIFS product was defective in its design and would therefore have failed from the outset. The defects in that product were, according to Berman, not prone to repair or other mitigation. Therefore, even if defendants did not appropriately inspect or repair the EIFS, their failure to do so would have had no impact on the long-term performance of the EIFS exterior cladding. As plaintiff failed to raise a genuine issue of material fact on these questions, the judge properly granted summary judgment to the Luppinos on plaintiff’s breach of fiduciary duty claim.”

On the final two points, the judges noted “plaintiff maintains that the judge committed reversible error when he excluded the Gonzalez certification and the 1989 job site report prepared by Raymond Brzuchalski.” They saw “no abuse of discretion related to the exclusion of the Gonzalez certification, and reject plaintiff’s arguments to the contrary.” Of the job site report, they found, “no abuse of discretion in the judge's finding that the Brzuchalski 1989 job site report did not satisfy the requirements of N.J.R.E.803(c)(6).”

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Celebrating Dave McLain’s Recognition in the Best Lawyers in America® 2025

September 16, 2024 — Higgins, Hopkins, McLain & Roswell, LLC
We are thrilled to announce that David M. McLain, a founding partner of Higgins, Hopkins, McLain & Roswell, LLC, has been recognized in the prestigious publication, The Best Lawyers in America® 2025. David has earned this honor for his outstanding work in Construction Law and Litigation – Construction. For over two decades, David has been a leading figure in the field of construction law. His dedication to providing exceptional legal services to developers, general contractors, and other construction professionals has set him apart as a trusted advisor and advocate in the Colorado construction industry. His inclusion in The Best Lawyers in America® 2025 is a testament to his hard work, legal acumen, and the respect he has garnered from his peers. About The Best Lawyers in America® The Best Lawyers in America® is one of the oldest and most esteemed peer-review publications in the legal profession. Each year, lawyers are nominated and evaluated by their peers based on their professional expertise and achievements. Only a select few receive this honor, making it a significant recognition of excellence in the legal field. Read the court decision
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Reprinted courtesy of Higgins, Hopkins, McLain & Roswell, LLC

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