FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

The Future of Pandemic Coverage for Real Estate Owners and Developers

November 09, 2020 — Ashley McWilliams - Saxe Doernberger & Vita
Shutdowns resulting from the COVID-19 pandemic have prompted an unprecedented number of business income and business interruption insurance claims. Many claims have resulted in litigation and require judicial intervention to determine whether private insurance carriers owe policyholders indemnification for pandemic related losses. Private insurance carriers that have denied the claims, in large part, argue that they did not underwrite coverage for the pandemic and assert that pandemic coverage is much too unpredictable to underwrite. Private carriers contend that a government-backed insurance program is necessary to mitigate the economic impact resulting from pandemic claims. The COVID-19 pandemic has significantly impacted real estate owners and developers. Real estate owners and developers have sustained business income losses in the form of lost rents at commercial properties, service disruption, labor and/ or material shortages, to name a few. Questions about whether the virus caused “direct physical damage,” as well as whether specific “virus exclusions” on policies, have provided hurdles to coverage under existing schemes, click here.Those that have filed lawsuits against their insurers seeking coverage under current policy terms are having mixed results, at best. Click here to view SDV’s Litigation Tracker. A predictable source of indemnification for future pandemic-related losses would greatly relieve business disruption and, ultimately, the impact on the economy. However, the question remains, who will pay for such massive losses? Read the court decision
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Reprinted courtesy of Ashley McWilliams, Saxe Doernberger & Vita
Ms. McWilliams may be contacted at AMcWilliams@sdvlaw.com

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Is Your Contract “Mission Essential?” Recovering Costs for Performing During a Force Majeure Event Under Federal Regulations

May 10, 2022 — Joneis M. Phan & Sarah K. Bloom - ConsensusDocs
Federal contractors have faced unprecedented challenges performing during the COVID-19 pandemic. Additional costs have included delays and inefficiencies, site closures, quarantines, unavailability of supplies and materials, and full shutdowns of subcontractor operations. For contractors performing under fixed price contracts, the cost impact of COVID-19 was likely severe. The Federal Acquisition Regulation (“FAR”) recognizes “epidemics” as a force majeure event that may excuse non-performance. Many federal contracts include some version of the Default clause, which prevents the government from terminating a contractor for default due to impacts of force majeure events that are beyond a contractor’s control, such as an epidemic. See, e.g., FAR 52.249-10. See also Pernix Serka Joint Venture v. Dep’t of State, CBCA No. 5683 (Apr. 20. 2020). The Default clause, however, operates as a shield from liability, not a sword authorizing recovery. Contractors are now left wondering whether any avenue exists to recover additional costs incurred after performing in the face of the COVID-19 pandemic. In response to a likely influx of claims and requests for equitable adjustment due to COVID-19 impacts, the federal government largely took the position that contractors were entitled to extensions of time, but not to additional costs. This article explores the avenues that may be available for contractors to recover costs for performing during a force majeure event that would otherwise be non-compensable. Reprinted courtesy of Joneis M. Phan, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs and Sarah K. Bloom, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs). Mr. Phan may be contacted at jphan@watttieder.com Ms. Bloom may be contacted at sbloom@watttieder.com Read the court decision
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New Jersey Rules that Forensic Lab Analysts Can’t be Forced to Testify

August 06, 2014 — Beverley BevenFlorez-CDJ STAFF
The New Jersey Law Journal reported that the New Jersey Supreme Court has rejected a rule that would have required “laboratory analysts who prepare forensic reports in criminal cases be available for cross-examination at trial.” The court stated that “requiring every analyst who was involved in the testing to be available for questioning by the defense was not required by the U.S. Constitution's Sixth Amendment Confrontation Clause and that doing so would create ‘practical drawbacks that range from moderate to severe.’” Read the court decision
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Another Reason to Love Construction Mediation (Read: Why Mediation Works)

December 02, 2015 — Christopher G. Hill – Construction Law Musings
I’ll bet you’re thinking by now that I have beaten the mediation drum to death and that I wouldn’t have any more praise for the process than I have heaped upon it here at this corner of the construction law “blawgosphere.” Well, just about every time I am involved with the process, whether acting in my capacity as a Virginia Supreme Court certified mediator, or as counsel to a client seeking to resolve a matter and move on with the business of making money, I become more convinced that mediation can work in even the most contentious of situations. What do I mean by “work?” The obvious answer is that mediation “works” when the parties come up with a solution to their problem. In most instances, the solution involves money changing hands. After all, it is money that is usually the tangible and outwardly driving force behind a dispute. Money is also what a court or arbitrator (in most cases) will be awarding to one side or the other at the end of what is likely to be an expensive process. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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SE 2050 Is In Quixotic Pursuit of Eliminating Embodied Carbon in Building Structures

January 23, 2023 — Nadine M. Post - Engineering News-Record
Walking to work one November morning, structural engineer Chris Jeseritz was buoyed by a Nelson Mandela quotation on a digital sign on the side of a Seattle office tower: “A winner is a dreamer who never gives up.” Reprinted courtesy of Nadine M. Post - Engineering News-Record Ms. Post may be contacted at postn@enr.com Read the full story... Read the court decision
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Insurers Must Defend Allegations of Faulty Workmanship

June 20, 2022 — Tred R. Eyerly - Insurance Law Hawaii
Granting the insured's motion for partial judgment on the pleadings, the court determined the insurers had a duty to defend. Suez Treatment Solutions, Inc. v. Ace Am. Ins. Co. & Liberty Mut. Fire Ins. Co., 2022 U.S. Dist. LEXIS 59044 (S. D. N. Y. March 30, 2022). Suez Treatment Solutions, Inc. held policies from Chubb and Liberty Mutual Fire Insurance Company to cover its operations in connection with the development of a pollution treatment system in North Carolina. When the project ultimately failed, an underlying action sought damages from Suez, alleging breach of contract, negligence, and fraud. Suez filed this case seeking a declaratory judgment that Chubb and Liberty were each obligated to defend and indemnify Suez in the underlying case. The City of High Point hired Suez to upgrade the facilities at its wastewater treatment plant staring in 2021. Because mercury levels were too high in emissions from sewage-sludge incinerators, Suez began working on the installation of a Mercury Removal System. After installation, a leak occurred in a component known as the heat exchanger. The leak caused the system to shut down and weeks-long repairs began. 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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Construction Law Client Alert: Hirer Beware - When Exercising Control Over a Job Site’s Safety Conditions, You May be Held Directly Liable for an Independent Contractor’s Injury

April 06, 2011 — Mark VonderHaar and Yvette Davis

On February 24, 2011, the California Court of Appeal held in Jeffrey Tverberg, et al v. Fillner Construction, Inc. that the imposition of direct liability on a hirer turns on whether the hirer exercised retained control of worksite safety in such a manner that affirmatively contributed to the independent contractor’s injury. Twice, Tverberg, an independent contractor hired by a general contractor's subcontractor, asked the general contractor to make the job site safe by covering up open holes created by another unrelated subcontractor while Tverberg was working at the site. After Tverberg was injured at the site by falling in a hole, he sued both the general contractor and the subcontractor which had hired him.



The Court of Appeal reasoned that when the general contractor instructed another subcontractor to create a condition that was potentially dangerous (i.e., creating open and uncovered bollard holes), and simultaneously required Tverberg to perform unrelated work near the open holes, the general contractor s conduct may have constituted a negligent exercise of its retained control which affirmatively contributed to Tverberg’s injury. The Court also reasoned that the general contractor affirmatively assumed responsibility for the safety of the workers near the holes by only requiring stakes and safety ribbon, and negligently discharged that responsibility which resulted in injury.



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Reprinted courtesy of Mark VonderHaar and Yvette Davis of Haight Brown & Bonesteel. Mr. VonderHaar can be contacted at mvonderhaar@hbblaw.com and Ms. Davis at ydavis@hbblaw.com.

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Anticipatory Repudiation of a Contract — The Prospective Breach

July 05, 2021 — David Adelstein - Florida Construction Legal Updates
There are instances where a party can engage in the anticipatory repudiation of their obligations under a contract. In essence, this is basically a party prospectively breaching the contract by repudiating their obligations in the contract. A prospective breach of contract occurs where there is absolute repudiation by one of the parties prior to the time when his performance is due under the terms of the contract. Such a repudiation may be evidenced by words or voluntary acts but the refusal must be distinct, unequivocal, and absolute. Moreover, repudiation can be shown where one party makes additional demands not included in the initial agreement:

The law is clear that where one party to the contract arbitrarily demands performance not required by the contract and couples this demand with a refusal to further perform unless the demand is met, the party has anticipatorily repudiated the contract, which anticipatory repudiation relieves the non-breaching party of its duty to further perform and creates in it an immediate cause of action for breach of contract. 24 Hr Air Service, Inc. v. Hosanna Community Baptist Church, Inc., 46 Fla. L. Weekly, D1344a (Fla. 3d DCA 2021) (quotations and citations omitted).

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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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