FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Claims for Breach of Express Indemnity Clauses Subject to 10-Year Statute of Limitations

October 08, 2014 — Beverley BevenFlorez-CDJ STAFF
According to Thomas G. Cronin of Gordon & Rees LLP (published in Association of Corporate Counsel), “[i]n 15th Place Condominium Association v. South Campus Development Team LLC, the Appellate Court for the First District of Illinois held that a claim for breach of an express indemnity clause within a construction agreement was subject to the 10-year statute of limitations for written contracts instead of the four-year statute of limitations for construction claims.” In 2008, the condo association sued the developer alleging “it had discovered latent design and construction defects in the condominium towers. In 2011, the developer filed a third-party complaint against the general contractor alleging breach of express indemnity.” While the general contractor prevailed in the first trial, the appellate court reversed the decision, “concluding that the nature of the developer’s express indemnity claim against the general contractor related to the failure to indemnify rather than to a construction-related activity.” Read the court decision
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Endorsement Excludes Replacement of Undamaged Property with Matching Materials

August 20, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The court approved the insurer's endorsement which stated the insured would not pay for undamaged property in order to match damaged property. Noonan v. Am. Family Mut. Ins. Co., 2019 U.S. App. LEXIS 15545 (May 24, 2019). After hail and wind damaged part of the roof in the insureds' home, American Family inspected the roof and determined that it had suffered $12,000 in damage. The insureds disputed this amount and demanded an appraisal to provide a binding estimate of the amount of loss. American Family asked the appraisers to divide their estimate into two categories - one for replacing damaged shingles and another for replacing undamaged shingles that would not match those needed to replace the damaged ones. The appraisers did not do so. They instead found that replacing the entire roof would cost $141,000 and noted there was a matching issue because alternative products did not match the current shingles on the roof. Of the $141,000 needed to replace the entire roof, American Family estimated that $87,232.98 was due to the costs of matching. The insureds sued. The district court remanded the case to the appraisers to clarify the award by differentiating the costs attributable to the actual roof damage from those attributable to shingle matching. The appraisers clarified the award and reported that actual damages were $66,619, meaning that $74,381 was attributable to matching. American Family then paid the actual damages, less the deductible, but refused to pay the rest. 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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Colorado’s New Construction Defect Law Takes Effect in September: What You Need to Know

November 21, 2017 — Jesse Witt - The Witt Law Firm
Originally published by CDJ on September 7, 2017 Colorado’s new construction defect law officially takes effect this month. Although HB 17-1279 was passed in May, the statutory text provides that it only applies “with respect to events and circumstances occurring on or after September 1, 2017.” With that date now upon us, practitioners should be mindful of the law’s new requirements. The law applies to any lawsuit wherein a homeowner association files a construction defect action on behalf of two or more of its members. “Construction defect action” is defined broadly to include any claims against construction professionals relating to deficiencies in design or construction of real property. Before an association may commence such an action, its board must follow several steps. First, the board must deliver notice of the potential construction defect action to all homeowners and the affected construction professionals at their last known addresses. This requirement does not apply to construction professionals identified after the notice has been mailed, or to construction professionals joined in a previously-approved lawsuit. The notice must include a description of the alleged construction defects with reasonable specificity, the relief sought, a good-faith estimate of the benefits and risks involved, and a list of mandatory disclosures concerning assessments, attorney fees, and the marketability of units affected by construction defects. The notice must also call a meeting of all homeowners. The notice should be sent to the construction professionals at least five days before the homeowners. Reprinted courtesy of Jesse Howard Witt, Acerbic Witt Mr. Witt may be contacted at www.witt.law Read the full story... Read the court decision
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Illinois Non-Profit Sues over Defective Roof

November 27, 2013 — CDJ STAFF
Coordinated Youth and Human Services (CYHS), a family services organization hired Honey-Do Home Repair to design and install a new roof for its building in Granite City, Illinois. Honey-Do removed portions of the roof for testing. A few day later during a rainstorm, a tarp failed, leading to water intrusion and damage to the building. The CYHS is suing the contractor for $400,000. It is claiming that repairing the damage cost the organization $200,000, and it seeks additional damage and court costs. Read the court decision
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Subcontractors Have Remedies, Even if “Pay-if-Paid” Provisions are Enforced

February 19, 2019 — John P. Ahlers - Ahlers Cressman & Sleight PLLC
In a recent case in Kentucky[1], a sub-tier subcontractor sued the general contractor and owner for failure to pay for extra work. At the trial, the court held the subcontractor was entitled to recover under the theories of implied contracts and unjust enrichment, even though the subcontract contained a “pay-if-paid” clause. All parties appealed. In particular, the general contractor asserted that the pay-if-paid provision in the subcontract precluded recovery by the subcontractor. The issue was petitioned to the Supreme Court of Kentucky. The question to be resolved by the Supreme Court of Kentucky was whether a pay-if-paid provision was enforceable as between a general contractor and subcontractor, and if so, whether the subcontractor could nevertheless pursue the owner directly for payment notwithstanding a lack of privity between the owner and subcontractor. Read the court decision
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Reprinted courtesy of John P. Ahlers, Ahlers Cressman & Sleight PLLC
Mr. Ahlers may be contacted at john.ahlers@acslawyers.com

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Windstorm Exclusion Found Ambiguous

September 10, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Second Circuit reversed the District Court's issuance of summary judgment to the insurer because a windstorm exclusion was deemed ambiguous. 7001 East 71st Street, LLC v. Continental Cas. Co., 2018 U.S. App. LEXIS 17334 (2nd Cir. June 26, 2018). A windstorm during Hurricane Sandy caused the roof of 7001 East 71st Street LLC (7001) to tear, allowing rainwater to seep in and damage 7001's "Covered Equipment" as defined by the policy. Continental denied coverage based upon the windstorm exclusion and the district court granted summary judgment to Continental. 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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Federal Judge Dismisses Insurance Coverage Lawsuit In Construction Defect Case

December 09, 2011 — CDJ STAFF

A federal judge dismissed a coverage lawsuit brought by Mid Continent Casualty Company against its insured, Greater Midwest Builders Ltd.

Plaintiff brought this declaratory judgment action in response to a suit filed in Johnson County District Court, seeking a judicial determination that it had no coverage obligation for claims asserted against its insured. This case was stayed until the state court action entered judgment against the insured. The prevailing parties then commenced a garnishment action against the plaintiff, and another insurance company, in state court in Missouri. The court was asked whether it should lift the stay and proceed with the case, or decline jurisdiction in favor of resolution in the Missouri state court.

The court granted the motion to dismiss holding that proceeding with the case would lead to protracted, piecemeal litigation, while deferring to the Missouri state court would decide all the claims involved in the dispute.

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When Employer’s Liability Coverage May Be Limited in New York

June 28, 2021 — Robert S. Nobel & Craig Rokuson - Traub Lieberman
New York recognizes that coverage under Workers’ Compensation (“WC”) and Employer’s Liability (“EL”) policies is generally unlimited. See Tully Const. Co. v. Illinois Nat. Ins. Co., 131 A.D.3d 598 (2d Dept. 2015); Oneida Ltd. v. Utica Mut. Ins. Co., 263 A.D.2d 825, 694 N.Y.S.2d 221 (3d Dept. 1999). However, there is case holding that EL coverage may be limited in certain instances, such as when the primary EL carrier is listed as scheduled underlying insurance on an excess policy. In Liberty Mut. Ins. Co. v. Ins. Co. of State of Pennsylvania, 43 A.D.3d 666, 841 N.Y.S.2d 288 (1st Dept. 2007), an employee of General Industrial Service Corporation (“General”), a subcontractor on a construction project, sought to recover under New York’s Labor Law against the project’s owner and construction manager. Those defendants, in turn, brought a third-party action for indemnification against General. The employee’s personal injury claim was ultimately settled for $2.5 million. After the settlement, the excess insurer, Liberty, filed suit against the primary employer’s liability insurers, The Insurance Company of the State of Pennsylvania and American International Group of Companies (collectively, “AIG”), which had refused to participate in the defense or settlement of the underlying personal injury litigation. Although the issue of whether the plaintiff in the underling action had sustained a “grave injury” (necessary to support the common law indemnity claim against General and trigger coverage under the Employer’s Lability policy) had not yet been determined, the court held that “[i]n the event the existence of a grave injury is proven, AIG’s liability will be limited to $1 million.” Reprinted courtesy of Robert S. Nobel, Traub Lieberman and Craig Rokuson, Traub Lieberman Mr. Nobel may be contacted at rnobel@tlsslaw.com Mr. Rokuson may be contacted at crokuson@tlsslaw.com Read the court decision
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