Fairfield Connecticut Building Expert Directory

When is a Residential Subcontractor not Subject to the VCPA? Read to Find Out

December 01, 2017 — Christopher G. Hill - Construction Law Musings
The Virginia Consumer Protection Act (VCPA) can and often does apply to residential construction. The transaction between a residential contractor and an homeowner has been held to fall under the consumer transaction language of the VCPA and on occasion been used to avoid the issues with the economic loss doctrine in Virginia. However, there are limits to how far down the contractual chain the VCPA applies, particularly in the case where a supplier or subcontractor does not provide the services or materials for a personal, consumer purpose. An example of this fact is found in the case of Johnston v. Stephan. In that case, a couple hired a general contractor to build a home and the general contractor hired Cole Roofing System, Inc. to provide the roof of the home. The first couple subsequently sold the home and the second homeowners sought further work on the roof from Cole Roofing. After Cole Roofing refused further work, the homeowners brought an action seeking to enforce a warranty and for a violation of the VCPA. For the warranty claim, the homeowners relied on the contract between them and the prior homeowners that referenced a 10 year warranty on the roof and the subcontract between the homebuilder and Cole Roofing. Cole Roofing sought dismissal of the VCPA and warranty claims by demurrer and further sought by demurrer to have the matter dismissed as being filed after the running of the statute of limitations. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Insurance Attorney Gary Barrera Joins Wendel Rosen’s Construction Practice Group

July 26, 2017 — Garret Murai - California Construction Law Blog
Wendel Rosen’s Construction Practice Group welcomes a new member to our band of merry men (and women), Gary Barrera. Gary, an insurance attorney, has extensive experience with construction defect, property damage, professional liability and environmental claims. He has represented real estate developers and contractors in all aspects of construction defect litigation and has resolved insurance coverage disputes arising out of construction claims on behalf of policyholders. Prior to attending law school, Gary worked as a claims representative and examiner for several insurance carriers and third-party administrators. 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

Insurer Has Duty to Defend Faulty Workmanship Claim

January 22, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The magistrate judge recommended a determination that the insurer owed a defense to the subcontractor sued for faulty workmanship. Hanover Lloyds Ins Co. v. Donegal Mut. Ins. Co., 2023 U.S. Dist. LEXIS 180877 (W.D. Texas Oct. 5, 2023). Poe Investments, Ltd. entered into an agreement with Jordan Foster Construction, LLC for construction of an auto sales and service facility ("Facility"). Jordan hired multiple subcontractors, including Texas Electrical Contractors, LLC ("TEC"). Subsequently, Poe sold the Facility to 6330 Montana, LLC ("Montana"). Montana filed suit against Jordan for breach of express warranties, breach of contract, and negligence. Jordon filed a third-party complaint against its subcontractors, including TEC. Jordan alleged that TEC provided "defective and negligent construction work" while carrying out the provision and installation of electrical and fire alarm systems at the Facility. 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

Recent Decision Further Jeopardizes Availability of Additional Insured Coverage in New York

July 08, 2024 — Nina Catanzaro & Bethany L. Barrese - Saxe Doernberger & Vita, P.C.
Additional insured endorsements often provide “blanket” coverage to persons or organizations as required by a written contract. However, the wording of the “blanket” language is critically important, as the inclusion of certain phrases in an additional insured endorsement can result in a denial of coverage for the upstream party. For example, risk transfer issues can arise when an additional insured endorsement provides coverage to parties “when you [the named insured] and such person or organization [the additional insured] have agreed in writing in a contract or agreement.” Courts in New York (among other jurisdictions) have interpreted this phrase to require contractual privity – that is, only the entity that contracted directly with the named insured is entitled to additional insured coverage, even if the named insured agreed in that contract to provide additional insured coverage for others as well. The same goes for the phrase “any person or organization with whom you [the named insured] have agreed to add as an additional insured by written contract.” Reprinted courtesy of Nina Catanzaro, Saxe Doernberger & Vita, P.C. and Bethany L. Barrese, Saxe Doernberger & Vita, P.C. Ms. Catanzaro may be contacted at NCatanzaro@sdvlaw.com Ms. Barrese may be contacted at BBarrese@sdvlaw.com Read the court decision
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Excess Must Defend After Primary Improperly Refuses to Do So

August 13, 2014 — Tred R. Eyerly - Insurance Law Hawaii
The excess insurer had a duty to defend after the primary carrier improperly refused its defense obligations. IMG Worldwide, Inc. v. Westchester Fire Ins. Co., 2014 U.S. App. LEXIS 13703 (6th Cir. July 15, 2014). IMG was sued for over $300,000,000 for alleged fraud, conversion, civil theft and violations of the Florida Deceptive and Unfair Trade Practice Act (FDUTPA). The lawsuit stemmed from a real estate development project. The plaintiffs had invested in the project and alleged that the developer had sold them undeveloped properties with the promise they would be developed. IMG was a consultant on the project and also licensed to the developer the use of the IMG name and logo in marketing materials. IMG had no contractual obligation to actually develop the property or finance the project. IMG sought coverage from its primary carrier, Great Divide, and from its excess carrier, Westchester. Both denied coverage and refused to defend. 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

Federal Interpleader Dealing with Competing Claims over Undisputed Payable to Subcontractor

September 28, 2017 — David Adelstein - Florida Construction Legal Updates
What do you do if you are holding undisputed money owed to a subcontractor? Well, you make an effort to pay it or tender it! Right? I am never a fan of a client holding undisputed sums without a legitimate contractual basis. There are circumstances, however, where the effort to pay an undisputed payable is not so easy. In fact, it is challenging, as in the below case example where the subcontractor filed for an Assignment for the Benefit of Creditors (referred to as an “ABC”). An ABC, in a nutshell, allows an insolvent entity to file an insolvency action in state court governed by state law and choose its assignee (versus a federal bankruptcy action governed by federal law where a trustee is appointed). One major difference is that there is no automatic stay in an ABC as there is in a federal bankruptcy action. Thus, the insolvent entity can still be sued, but, while that entity is in an ABC, there are many creditors that will not be able to enforce a judgment. (See Florida Statute Ch. 727). 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

Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage

January 05, 2017 — Masaki J. Yamada – Ahlers & Cressman PLLC
Washington Courts allow an insurer to determine its duty to defend an insured against a lawsuit based only on the face of the complaint and the limitations of the insurance policy. This is otherwise known as the “eight corners” rule (four corners of the complaint plus the four corners of the policy). In other words, the insurance company is not permitted to rely on facts extrinsic to the complaint in order to deny its duty to defend an insured. See Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 763 (2002). The laws in Washington provide greater protection to the insured over the insurer when it comes to the insurer’s duty to defend. The duty to defend a claim is triggered if a claim could “conceivably” be covered under the policy. See Woo v. Fireman’s Insurance, 161 Wn.2d 43 (2007). If there is any ambiguity in a policy with regard to coverage, the ambiguity is interpreted in favor of the insured. As a result, contractors in Washington regularly tender claims or potential claims to their insurers even when damage has not occurred but will occur in the imminent future. Especially in the context of construction defect cases, a contractor will tender such a claim to its insurer to trigger the broad duty of the insurer to provide a defense. We also regularly recommend this to our contractor clients. For example, if a building owner serves a contractor with a claim that the construction and installation of a window system will imminently cause leaks and corrosion, we would recommend that the contractor tender the claim to its commercial general liability insurer. Washington courts have found a duty to defend when there are allegations in the complaint that covered damages will occur in the imminent future. Read the court decision
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Reprinted courtesy of Masaki J. Yamada, Ahlers & Cressman PLLC
Mr. Yamada may be contacted at myamada@ac-lawyers.com

Michigan Lawmakers Pass $4.7B Infrastructure Spending Bill

April 11, 2022 — James Leggate - Engineering News-Record
Michigan lawmakers have passed legislation appropriating $4.7 billion for state infrastructure, including more than $1 billion for various water projects.About $750 million will go toward drinking water infrastructure such as projects to replace lead service lines or remove contaminants like PFA substances, potentially harmful chemicals used in industrial and consumer products that are have been found in water. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES