Fairfield Connecticut Building Expert Directory

Subsurface Water Exclusion Found Unambiguous

July 14, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Eighth Circuit rejected the policyholder's appeal on the ambiguity of a subsurface water exclusion. Bull v. Nationwide Mut. Fire Ins. Co., 2016 U.S. App. LEXIS 9703 (8th Cir. May 27, 2016). Michael Bull, the insured, experienced a leak from a buried pipe beneath his garage slab. The leak caused settling and mold, including the settling and cracking of his foundation, a brick walkway, and interior walls. 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

Illusory Insurance Coverage: Real or Unreal?

August 24, 2017 — David Adelstein - Florida Construction Legal Updates
In insurance coverage declaratory relief actions, there are times an insured will argue that the insurance policy coverage is illusory. Typically, an insured will raise this illusory argument if its insurer is denying coverage based on an exclusion or limitation in the policy. If a court agrees and deems the coverage illusory, the court will construe the policy to afford coverage to the insured. This is the obvious value of the argument: coverage! “A policy is illusory only if there is an internal contradiction that completely negates the coverage it expresses to provide.” The Warwick Corp. v. Turetsky, 42 Fla.L.Weekly D1797a (Fla. 4th DCA 2017). Thus, if a policy grants coverage in one section but then excludes the same coverage in another section, the coverage would be deemed illusory. Id. quoting Tire Kingdom, Inc. v. First S. Ins. Co., 573 So.2d 885, 887 (Fla. 3d DCA 1990). An illusory policy was found in the following examples: (a) a policy covered certain intentional torts but then excluded intended acts; (b) a policy covered advertising injury but elsewhere excluded advertising injury; and (c) a policy covered parasailing but excluded watercrafts. Id. (citations omitted). In all examples, coverage in the policy was completely swallowed up by an exclusion rendering the coverage illusory. Stated differently, coverage was completely contradicted by an exclusion in the policy rendering the policy absurd. 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

AB5 Construction Exemption – A Checklist to Avoid Application of AB5’s Three-Part Test

February 18, 2020 — Blake Dillion - Payne & Fears LLP
Construction companies have a unique opportunity to avoid the application of the restrictive new independent contractors law that took effect this year. This article provides a checklist that will help construction companies determine whether their relationships with subcontractors qualify for this exemption. California’s Assembly Bill 5 (“AB5”), which went into effect Jan. 1, 2020, enacts into a statute last year’s California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor. Certain professions and industries are potentially exempt from this standard, including the construction industry. The ABC test does not apply to the relationship between a contractor and an individual performing work pursuant to a subcontractor in the construction industry, if certain criteria are met. In order for the “construction exemption” to apply, the contractor must demonstrate that all of the following criteria are satisfied.

The subcontract is in writing;
The subcontractor is licensed by the Contractors State License Board and the work is within the scope of that license;
If the subcontractor is domiciled in a jurisdiction that requires the subcontractor to have a business license or business tax registration, the subcontractor has the required business license or business tax registration;
The subcontractor maintains a business location that is separate from the business or work location of the contractor;
The subcontractor has the authority to hire and to fire other persons to provide or assist in providing the services;
The subcontractor assumes financial responsibility for errors or omissions in labor or services as evidenced by insurance, legally authorized indemnity obligations, performance bonds, or warranties relating to the labor or services being provided; and
The subcontractor is customarily engaged in an independently established business of the same nature as that involved in the work performed.

The contractor must be able to establish each of the above criteria for the construction exemption to apply. If the contractor is successful, the long standing multi-factor test for determining independent contractor vs. employee status as described in S.G. Borello & Sons, Inc. v. Dep’t of Industrial Relations, 48 Cal. 3d 341 (1989) will apply. You should review your processes and procedures for engaging subcontractors to ensure that you can satisfy the above criteria. If you have questions about the application of AB5, the construction exemption, or the Borello factors, you should speak with an attorney. Read the court decision
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Reprinted courtesy of Blake A. Dillion, Payne & Fears
Mr. Dillion may be contacted at bad@paynefears.com

Construction Contractors Must Understand Retainage In 2021

May 24, 2021 — Ed Williams - Construction Executive
Retainage has become a vital part of the contracting and construction process. If defined precisely, retainage is a practice of withholding a particular percentage of the payment until the project is delivered. However, the practice can turn to be a challenge for small contractors, as it is laid over a lack of trust in the potential and abilities of a contractor, which might cause financial downtime at the later stages of the project when contractors need to pay bills. Since 2020 proved to be a tough year for the entire construction industry, project owners, general contractors and construction firms new to the industry must understand what exactly retainage is. It is equally important for small contractors and subcontractors to understand the right way to manage the retainage. Reprinted courtesy of Ed Williams, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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ENR Northwest’s Top Contractors Survey Reveals Regional Uptick

June 25, 2019 — Scott Judy - Engineering News-Record
A year ago, the 25 contractors responding to ENR Northwest’s Top Contractors survey collectively reported roughly $6.4 billion in 2017 revenue from the states of Washington, Oregon and Alaska. This year, the 27 contractors listed below—in alphabetical order—reported more than $8.8 billion in regional revenue for 2018. Read the court decision
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Reprinted courtesy of Scott Judy, ENR
Mr. Judy may be contacted at judys@enr.com

General Contractor’s Excess Insurer Denied Equitable Contribution From Subcontractor’s Excess Insurer

December 15, 2016 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Advent v. National Union Fire Ins. Co., etc. (No. H041934 filed 12/6/16), a California appeals court refused to order a subcontractor’s excess insurer to contribute to a general contractor’s excess insurer because the general contractor did not qualify as an additional insured of the subcontractor’s insurer, and the policy wording made the subcontractor’s excess insurer second level excess above the general contractor’s own excess insurance. Advent was the general contractor on a housing development and Johnson was a sub-subcontractor providing concrete on perimeter walls. A Johnson employee dispatched to retrieve plywood dumped between some of the buildings somehow fell down an open stairwell inside one of the unfinished buildings and suffered serious injury. He sued Advent and others for negligence, but could not remember how he fell. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Job Growth Seen as Good News for North Carolina Housing Market

November 20, 2013 — CDJ STAFF
David Mayo, the president of the Home Builders Association of Hendersonville told housing professionals that “it’s been a tough few years, but by all accounts it’s better now.” Currently, Henderson County, North Carolina is seeing three new jobs created for every building permit issued, which is seen as the critical measure of a region’s economic health, according to Dale Akins, a market research firm. Henderson County has seen a rise in building permits, with 32% more permits issued in the first nine months of 2013 than in the same period of 2012. By contrast, adjacent Transylvania County has seen little job growth and a housing market that has shrunk by 25%. Read the court decision
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Keller Group Fires Two Executives in Suspected Australia Profits Reporting Fraud

February 20, 2023 — James Leggate - Engineering News-Record
London-based geotechnical contracting giant Keller Group's profits from its Australia business unit may have been fraudulently inflated by the U.S. equivalent of as much as $20 million in today’s dollars since 2019, the company has revealed. 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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