FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

New York Court Rules on Architect's Duty Under Contract and Tort Principles

November 05, 2014 — Beverley BevenFlorez-CDJ STAFF
According to Traub Lieberman Straus & Shrewsberry LLP's blog, in a recent case, "which involved a five story expansion/conversion of an existing one story commercial building located in Brooklyn, New York," the architect was retained with obligations among five construction phases. Later, the condominium board alleged that construction defects existed and filed suit against contractors, engineers, and the architect. The Court granted the Architect's motion to dismiss the complaint, holding "that the allegations of negligence under the circumstances were based on construction defects and 'as such, sound in breach of contract rather than tort.' This was so, even though plaintiff alleged 'breach of a duty of care,' a traditional tort liability concept. The Court dismissed the breach of contract claim as well, holding that a 'successor in interest' argument should not be permitted to erode the firmly established privity requirement for an architect’s contract-based liability." Read the court decision
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Superintendent’s On-Site Supervision Compensable as Labor Under Miller Act

March 13, 2023 — David Adelstein - Florida Construction Legal Updates
A recent Miller Act payment bond decision out of the District of Columbia Circuit Court of Appeals, U.S. f/u/b/o Civil Construction, LLC v. Hirani Engineering & Land Surveying, PC, 58 F.4th 1250 (D.C. Circ. 2023), dealt with the issue of whether a subcontractor’s superintendent constitutes recoverable “labor” within the meaning of the Miller Act and compensable as a cost under the Miller Act that typically views labor as on-site physical labor. The issue is that the Miller Act covers “[e]very person that has furnished labor or material in carrying out work provided for in a contract.” Civil Construction, supra, at 1253 quoting 40 U.S.C. s. 3133(b)(1). The Miller Act does not define labor. The subcontractor claimed labor includes actual superintending at the job site. The surety disagreed that a superintendent’s presence on a job site constitutes labor as the superintendent has to actually perform physical labor on the job site to constitute compensable labor under the Miller Act. The subcontractor argued its subcontract and the government’s quality control standards required detailed daily reports that verified manpower, equipment, and work performed at the job site. It further claimed its superintendent had to continuously supervise and inspect construction activities on-site: “[the] superintendent had to be on-site to account for, among other things, hours worked by crew members, usage and standby hours for each piece of equipment, materials delivered, weather throughout the day, and all work performed. These on-site responsibilities reflected the government’s quality control standards, under which the superintendent as ‘the most senior site manager at the project, is responsible for the overall construction activities at the site…includ[ing] all quality, workmanship, and production of crews and equipment.” Civil Construction, supra, at 1253-54. 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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Mississippi Sues Over Public Health Lab Defects

October 29, 2014 — Beverley BevenFlorez-CDJ STAFF
The state of Mississippi “is suing architects and designers of a new Public Health Lab, saying the $28 million lab wasn't up to containing deadly diseases, biohazards and chemicals,” reported The Clarion-Ledger. Dale Partners Architects, Earl Walls Associates, Eldridge and Associates, and Environmental Management Plus have been named as defendants. "The estimated damages are $3 million," attorney Dorsey Carson told The Clarion-Ledger. "This building is where they test tuberculosis, or where they would test anthrax or any other (biohazards). You don't have a choice – it has to meet rigorous standards." Charlie Alexander, a partner with Dale Partners, stated that “any allegations of design defects by his company and its team ‘are unfounded,’” reported The Clarion-Ledger. Read the court decision
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Denial of Coverage for Bulge in Wall Upheld

November 26, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The insurer properly denied coverage for a bulge in a warehouse wall that the insured claimed was caused by Hurricane Ike. Russell v. Scottsdale Ins. Co., 2014 U.S. Dist. LEXIS 143882 (S.D. Tex. Sept. 30, 2014). Hurricane Ike displaced metal roof coverings on the insured's warehouse, causing interior water damage to several rooms. Scottsdale eventually paid $84,820.36 for the loss of the roof, less the deductible. The parties disagreed on whether a horizontal bulge on the north wall of the warehouse was also caused by the hurricane. The bulging portion of the wall was not cracked, but cracks were seen around the corners and windows. The insured admitted to an engineer retained by Scottsdale that the cracks in the exterior walls had been filled with caulking on several occasions prior to Hurricane Ike. Scottsdale denied coverage for the damage to the north wall under exclusions for soil sinking, rising, or shifting and for damage from faulty, inadequate or defective design, construction, and repair.The insured later sent a demand for $800,000 for the damage to the wall. A suit was eventually filed by the insured. 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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Colorado General Assembly Sets Forth Prerequisites for an Insurance Company to Use Failure to Cooperate as a Defense to a Claim for First Party Insurance Benefits

August 10, 2020 — Christine Kroupa, John Palmeri & Katelyn Werner - Gordon & Rees
Despite first party insurance policies generally requiring cooperation from an insured in the investigation of a claim, insurers can no longer rely on the failure to cooperate as a defense in a claim for first party insurance benefits in Colorado unless certain conditions are met. The Bill: On July 2, 2020, Colorado Governor Jared S. Polis signed House Bill 20-1290 which addresses the ability of an insurer to use a failure to cooperate defense in an action where the insured has made a claim for benefits under an insurance policy. This bill bars an insurer from raising the failure to cooperate unless the following conditions are met:

• The insurer submitted a written request to the insured or the insured’s representative for the information (via electronic means if consent was given by insured or insured’s representative, or via certified mail);
• The information is not available to the insurer without the assistance of the insured;
• The written request provides the insured 60 days to respond;
• The written request is for information a reasonable person would determine the insurer needs to adjust the claim filed by the insured or to prevent fraud; and
• The insurer gives the insured an opportunity to cure, which must:
• Provide written notice to the insured of the alleged failure to cooperate, describing with particularity the alleged failure within 60 days after the alleged failure; and
• Allow the insured 60 days after receipt of the written notice to cure the alleged failure to cooperate.

Reprinted courtesy of Gordon & Rees attorneys Christine Kroupa, John Palmeri and Katelyn Werner Ms. Kroupa may be contacted at ckroupa@grsm.com Mr. Palmeri may be contacted at jpalmeri@grsm.com Ms. Werner may be contacted at kwerner@grsm.com Read the court decision
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Want to Make Your Jobsite Safer? Look to the Skies.

October 10, 2022 — Rory San Miguel - Construction Executive
New York Gov. Kathy Hochul is set to sign Carlos’ Law for worker protection. The law would set a national precedent for construction site safety, substantially raising the minimum fines for construction companies found liable for onsite injuries. Worksites are very complex, and many factors go into creating a safe space. Following suit, innovative operators are looking at advanced technologies to boost onsite safety, including drone data visualization, which involves flying a drone over a site to capture a highly accurate 3D model of current conditions in close to real time. Using drones can't solve every problem, but it can help not only protect workers but also encourage new ones to join your team. How drone surveying improves jobsite safety 3D mapping a worksite with a drone keeps workers out of harm’s way, helping surveyors avoid potentially dangerous areas filled with constantly moving heavy equipment and machinery. Drone mapping also means surveyors can stay out of the heat, avoiding the risk of excess sun exposure by sending the drone out in their stead to traverse the terrains and slopes of the site. Reprinted courtesy of Rory San Miguel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Defenses Raised Three-Years Too Late Estop Insurer’s Coverage Denial

February 21, 2022 — Michael S. Levine & Yaniel Abreu - Hunton Insurance Recovery Blog
Liability insurance typically affords broad defense coverage. But insurers sometimes reserve their right to challenge the insured’s right to a defense, or even outright terminate the defense. When this occurs after the insurer has been in exclusive control of the defense, some courts recognize that the consequences can be catastrophic for the insured defendant. Insurers, therefore, may be estopped from denying coverage where doing so will prejudice the insured. This is exactly what transpired in RLI Ins. Co. v. AST Engineering Corp., No. 20-214 (2d Cir. Jan. 12, 2022), where the Second Circuit affirmed the district court’s decision that an insurer’s attempt to withdraw the defense it had provided to its insured for three years would prejudice the insured. In AST Engineering, RLI sought a declaration that it did not have to defend the insured, AST, in two underlying cases in which AST was sued as a third-party defendant. The underlying cases concerned a construction project in New York City for which AST provided engineering drawings on October 28, 2012. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Yaniel Abreu, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Abreu may be contacted at yabreu@HuntonAK.com Read the court decision
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White and Williams Earns Tier 1 Rankings from U.S. News "Best Law Firms" 2021

November 23, 2020 — White and Williams LLP
White and Williams has achieved national recognition from U.S. News and World Report as a "Best Law Firm" in the practice areas of Insurance Law, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law and Media Law. Our Delaware, New York and Philadelphia offices have also been recognized in their respective metropolitan regions in several practice areas. Firms included in the “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal experience. Reprinted courtesy of White and Williams LLP Read the full story... Read the court decision
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