FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Affirmed: Insureds Bear the Burden of Allocating Covered Versus Uncovered Losses

September 28, 2017 — C. Lily Schurra & K. Alexandra Byrd – Saxe Doernberger & Vita, P.C.
The Second Circuit recently affirmed a district court decision that an insured bears the burden of establishing what portion of a jury verdict constitutes covered damages1. The case arose out of claims for property damage resulting from construction defects in a homebuilding project. The homeowners fired the construction manager, J. Barrows, Inc. (“JBI”), who then sued the homeowners in state court for unpaid fees (the “Underlying Action”). The homeowners counterclaimed, alleging breach of contract and negligence. JBI’s commercial general liability insurer, Harleysville Worcester Insurance Company (“Harleysville”), agreed to defend JBI under a reservation of rights. Reprinted courtesy of C. Lily Schurra, Saxe Doernberger & Vita, P.C. and K. Alexandra Byrd, Saxe Doernberger & Vita, P.C. Ms. Schurra may be contacted at cls@sdvlaw.com Ms. Byrd may be contacted at kab@sdvlaw.com Read the court decision
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Withholding Payment or Having Your Payment Withheld Due to Disputes on Other Projects: Know Your Rights to Offset

January 04, 2021 — Christopher C. Broughton, Jones Walker LLP - ConsensusDocs
Introduction The right to offset refers to the common sense ability to reduce or eliminate your payment obligations to a party who owes you money on another contract. With offsets, common law largely tracks common sense. The right of offset is recognized by statute and court decisions in many states as well as under federal law and the U.S. Bankruptcy Code. The right to offset can also be established in the contract or subcontract. But like many things that may seem simple, the right to offset can easily become complex. This article provides an overview of the extent and limits of the right to offset varies from state to state and with federal government contracts about the extent and limits of the right of offset. Construction trust fund statutes add another layer of complications. These variations may not be obvious or intuitive, but they have a tremendous impact on your right to get paid or your right to withhold payment. Because of the variations, you must always confirm the law applicable to your contract or subcontract, which may not be where the project or you are located. Read the court decision
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Reprinted courtesy of Christopher C. Broughton, Jones Walker LLP
Mr. Broughton may be contacted at cbroughton@joneswalker.com

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Business Solutions Alert: Homeowners' Complaint for Breach of Loan Modification Agreement Can Proceed Past Pleading Stage

October 08, 2014 — Krsto Mijanovic, Annette Mijanovic, Blythe Golay - Haight Brown & Bonesteel LLP
In Fleet v. Bank of America, N.A. (No. G050049, published 9/23/14, filed 8/25/14), a California Court of Appeal held that the trial court erred in sustaining the demurrer of a lender, where the homeowners had adequately alleged causes of action for breach of contract, fraud, and promissory estoppel. The homeowners alleged that they made timely payments during the trial period plan under the modification program, but before the last payment was due, the lender foreclosed and their house was sold. The homeowners had applied for a loan modification and were approved for a trial period plan under the modification program. They were required to make three monthly payments and verify financial hardship to permanently modify their loan. The homeowners made two payments and were told that foreclosure proceedings had been suspended. But before the third payment was due, the lender foreclosed. The trial court found that the trial period plan was not a binding loan modification agreement, so the homeowners had no right to any guaranteed loan modification. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Krsto Mijanovic, Annette Mijanovic and Blythe Golay Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com Ms. Mijanovic may be contacted at amijanovic@hbblaw.com Ms. Golay may be contacted at bgolay@hbblaw.com Read the court decision
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Competent, Substantial Evidence Carries Day in Bench Trial

February 26, 2024 — David Adelstein - Florida Construction Legal Updates
A number of construction disputes, if tried, are tried through a bench trial meaning the judge is serving in the role of the jury in the construction trial. In a bench trial, two points are important. First, “the factual findings of the judge are entitled to the weight of a jury verdict.” Q.G.S. Development, Inc. v. National Lining Systems, Inc., 2024 WL 357984 (Fla. 3d DCA 2024) (internal quotation and citation omitted). Second, “[t]he appellate court is only authorized to reverse if such findings are not supported by competent, substantial evidence.” Id. These two points need to be appreciated when participating in any construction dispute that will be resolved through a bench trial. A recent construction dispute highlights these two points. In Q.G.S. Development, a contractor was hired to refurbish a golf course which included constructing a lake. The contractor was going to construct the lake, prepare the subgrade, perform dewatering, and it hired a subcontractor to install a reservoir liner at the bottom of the lake. 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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NLRB Broadens the Joint Employer Standard

September 17, 2015 — Craig Martin – Construction Contractor Advisor
Perhaps in anticipation of Labor Day, the National Labor Relations Board issued its ruling in Browning-Ferris Indus. of Cal. d/b/a BFI Newby Island Recyclery, establishing an easier standard for unions to prove that a joint employer relationship exists. This will make it easier for unions to make the upstream company, like a parent company, liable for unfair labor practices, even if the upstream company had no direct involvement. Some Background BFI runs a recycling plant and contracts with Leadpoint to provide workers to sort garbage in the recycling plant. The staffing agreement specifically stated that Leadpoint was the sole employer of the personnel it supplied and Leadpoint handled supervision of the employees, not BFI. Leadpoint’s employees sought to unionize and an election was held. The union filed a petition seeking a determination that Leadpoint and BFI were a joint employers. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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Repairs to Water Infrastructure Underway After Hurricane Helene

October 07, 2024 — Derek Lacey - Engineering News-Record
As transportation officials in Tennessee and North Carolina brace for long rebuilds of heavily damaged interstates in remote and rugged areas of the Appalachian Mountains, local agencies are also at work restoring water and sewer services to residents nearly one week after Hurricane Helene made landfall. Reprinted courtesy of Derek Lacey, Engineering News-Record Mr. Lacey may be contacted at laceyd@enr.com Read the full story... Read the court decision
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Buyer Beware: Insurance Agents May Have No Duty to Sell Construction Contractors an Insurance Policy Covering Likely Claims

May 20, 2024 — David McLain - Higgins, Hopkins, McLain & Roswell, LLC
Construction contractors in the market for insurance coverage have few legal protections if their insurance agent fails to provide insurance that covers likely claims against the contractor. As construction defect lawsuits continue to be a frequent occurrence throughout Colorado, we have seen an increase in the number and complexity of coverage endorsements and exclusions in insurance policies. Some of these exclusions result in insurance policies that are essentially useless to the contractor who purchased them. For example, we have seen dirt work contractors with earth movement exclusions or an earth movement sublimit that turns their $2 million policy into a $100,000 policy. We have seen contractors who primarily build tract homes in subdivisions with tract home exclusions. We have seen general contractors whose policies state that every subcontractor must name the contractor as an additional insured or else the general contactor’s policy converts from a seven-figure policy to a five-figure policy with eroding limits (meaning that the attorney’s fees, expert fees, and litigation costs reduce the coverage limits). The list goes on and leads to an unfortunately high number of contractors who pay significant sums for their insurance policies, finding themselves uninsured or underinsured. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

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California Pipeline Disaster Brings More Scandal for PG&E

September 17, 2014 — Mark Chediak – Bloomberg
A deadly pipeline explosion that shattered a California town four years ago continues to rip through the state agency weighing a record penalty for the disaster. The president of the California Public Utilities Commission asked his chief of staff to resign and recused himself from the case after “inappropriate e-mail exchanges” with PG&E Corp. (PCG) raised questions about bias, according to a statement from the commission yesterday. The CPUC may decide within weeks whether to levy a proposed $1.4 billion penalty -- the biggest safety fine in the state’s history -- against PG&E for the 2010 explosion of a natural gas pipeline that killed eight people in San Bruno. Commission President Michael Peevey, who has been accused by San Bruno officials and consumer advocates of being too close to the utility, said in the statement he would not take part in penalty deliberations to eliminate any appearance of impropriety. The move is a step toward regaining credibility for the CPUC after two years of political infighting has created an ongoing climate of scandal. Read the court decision
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Reprinted courtesy of Mark Chediak, Bloomberg
Mr. Chediak may be contacted at mchediak@bloomberg.net

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