FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

On Rehearing, Fifth Circuit Finds Contractual-Liability Exclusion Does Not Apply

November 26, 2014 — Tred R. Eyerly – Insurance Law Hawaii
On rehearing, the Fifth Circuit determined that the contractual-liability exclusion did not apply to bar coverage for damage caused by the insured contractor to the home it constructed. Crownover v. Mid-Continent Cas. Co., 2014 U.S. App. LEXIS 20727 (5th Cir. Oct. 29, 2014).The court withdrew its prior opinion, summarized here. Arrow Development, Inc. contracted with the Crownovers to construct a home. The contract had a warranty-to-repair clause, which, in paragraph 23.1, provided that Arrow would "promptly correct work . . . failing to confirm to the requirements of the Contract Documents." After the Crownovers moved in, cracks began to appear in the walls and foundation of the home. Additional problems with the heating, ventilation, and air conditioning ("HVAC") caused leaking in the exterior lines and air ducts inside the home. To compensate for defects in the HVAC system, the system's mechanical units ran almost continuously in order to heat or cool the home. Because they were overburdened, the mechanical units had to be replaced. The Crownovers paid several hundred thousand dollars to fix the problems with the foundation and HVAC system. 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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Gene Witkin Celebrates First Anniversary as Member of Ross Hart’s Mediation Team

May 23, 2022 — AMCC
LOS ANGELES, California, May 18, 2022 – With a near perfect record of resolving cases, Gene is particularly passionate about helping parties get closure and minimize the significant costs of civil discovery and trial. He attributes the high success rate to empathy for all sides from his diverse prior experience representing both plaintiffs and defendants in civil litigation, as well as his extensive past experience as insurance coverage counsel for both insureds and insurers. In recent months, two cases in particular were at an impasse due to insurance issues. The parties were able to bridge the gap and resolve the disputes, with mediator help on subtle coverage issues in one case (working through technical policy provisions together) and a creative settlement structure in the other (involving allocation of payments under the insurance policy). Gene also credits the successful resolutions in part to pre-mediation calls with the parties to better define the obstacles to resolution. Gene, along with Ross Hart and several AMCC neutrals were thrilled to see many of their colleagues and construction defect stakeholders earlier this month at the West Coast Casualty seminar, which certainly heralded a successful return to in person events. For more information or to schedule a mediation, please contact case administrator Stephanie Felton at admin@amccenter.com. About AMCC For more than 30 years the principals of AMCC have been serving the construction, real estate and insurance industries as a full service ADR firm. In addition to administering multiple terms of the CSLB contract for the state, AMCC is the recognized leader in California for administering insurance appraisals under Insurance Code 2071, as well as numerous other related ADR services such as partnering and dispute review boards. For more information please visit www.amccenter.com. Read the court decision
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User Interface With a Building – Interview with Esa Halmetoja of Senate Properties

September 14, 2017 — Aarni Heiskanen - AEC Business
Architect Mies van der Rohe once said that, “An office is a machine for working in.” From a maintenance person’s point of view that might be true. For a user, an office should offer a productive working environment. A pilot project, led by Esa Halmetoja of Senate Properties, is trying to find out how a digital twin of a building would serve both the needs of the maintenance worker and the office worker. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at info@aepartners.fi

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Homebuyers Get Break as Loan Rates Defy Fed Tapering: Mortgages

February 14, 2014 — Kathleen M. Howley – Bloomberg
Ashley Underwood is taking advantage of the unexpected drop in mortgage rates by rushing to buy her first home before they go up again. “I’m ready to cancel plans at a moment’s notice to go look at a house,” said Underwood, 27, who lives in Indianapolis, Indiana. “I didn’t expect to see rates falling again, and I want to lock in something before I lose out.” The drop in the last month proved forecasters wrong, said Douglas Duncan, chief economist of Fannie Mae in Washington. After the Federal Reserve announced in December that it would begin tapering purchases of mortgage-backed securities, all the major housing forecasters said rates would jump this quarter. Economists didn’t foresee that investors would react to the Fed’s retreat by moving money from emerging markets into U.S. Treasuries, driving down home-loan rates. Read the court decision
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Reprinted courtesy of Kathleen M. Howley, Bloomberg
Ms. Howley may be contacted at kmhowley@bloomberg.net

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Miller Act Bond Claims Subject to “Pay If Paid”. . . Sometimes

November 04, 2019 — Christopher G. Hill - Construction Law Musings
The Federal Miller Act is a great tool that subcontractors and suppliers on Federal projects can use for collection of wrongfully withheld amounts due. However, as a recent federal case from the Eastern District of Virginia points out, the construction contract’s terms affect when a subcontractor or supplier can use this great collection tool and how much it can recover. In Aarow v Travelers the Court looked at the interaction between a typical termination clause, a “pay when paid” clause, and the Miller Act. The key facts are these. The general contractor on the project at issue, Syska, did not get paid some disputed amounts by the owner and subsequently did not pay Aarow, the plaintiff and a subcontractor on the project. Aarow then refused to continue work and was terminated by Syska who then took over the completion of the work. Aarow sued, seeking damages for the value of its work prior to the termination. Travellers, the surety defended stating that, if Aarow was properly terminated for cause by Syska, then Aarow was not entitled to payment under the contract until such time as the work was completed and accepted by the owner. The termination clauses are set out in the linked opinion. The Court agreed with Travelers, stating that the pay when paid clause created a situation whereby Aarow could not stop work merely because of a non-payment by Syska attributed to non-payment by the owner. The Court was clear in stating that the Miller Act trumps “pay when paid” in instances where the only cause for non-payment is non-payment by an owner. The Court then reasoned that it is the interaction between the termination and “pay when paid” provisions, and not the “pay when paid” clause itself, that exonerated Travelers because it created the default by Aarow due to its refusal to continue work. In short, Aarow was properly terminated for cause because it left the job without justification and therefore Travelers was not liable. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Judgment Stemming from a Section 998 Offer Without a Written Acceptance Provision Is Void

March 22, 2021 — Arezoo Jamshidi, Stevie B. Newton & Lawrence S. Zucker II - Haight Brown & Bonesteel LLP
In Mostafavi Law Group, APC v. Larry Rabineau, APC (B302344, Mar. 3, 2021), the California Court of Appeal, Second Appellate District (Los Angeles), addressed an issue of first impression: whether the purported acceptance of a Code of Civil Procedure section 998 (“section 998”) offer lacking an acceptance provision gives rise to a valid judgment. The appellate court held that a section 998 offer to compromise (“998 Offer”) without an acceptance provision is invalid and any judgment stemming from it is void. In Mostafavi Law Group, plaintiffs sued defendants for defamation per se, among other claims, which was litigated at-length over several years. Defendants served plaintiffs with a written 998 Offer, offering to settle the action for the sum of $25,000.01. The 998 Offer did not specify the manner in which plaintiffs were to accept the offer. Within the statutory time period for acceptance, plaintiffs’ counsel hand-wrote the following onto the 998 Offer: “Plaintiff Mostafavi Law Group, APC accepts the offer.” That day, plaintiffs also filed a notice of acceptance of the 998 Offer, along with proof thereof, and sent a copy to defendants. The next day, having received the notice of acceptance, defendants advised plaintiffs that they would “draft and send . . . a settlement agreement for . . . signature” before paying the settlement funds. Reprinted courtesy of Arezoo Jamshidi, Haight Brown & Bonesteel LLP, Stevie B. Newton, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com Mr. Newton may be contacted at snewton@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Lake Charles Tower’s Window Damage Perplexes Engineers

October 05, 2020 — Autumn Cafiero Giusti - Engineering News-Record
When Hurricane Laura came onshore Aug. 27 as a Category 4 hurricane with sustained winds of 150 mph, it shattered windows on nearly every level of the 22-story Capital One Tower in the Lake Charles, La., business district. The glass damage is perplexing to engineers who study wind dynamics and window performance. Reprinted courtesy of Autumn Cafiero Giusti, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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Southern California Lost $8 Billion in Construction Wages

August 17, 2011 — CDJ STAFF

Los Angeles and Orange Counties are first on a list no area wants to be on. According to the Sacramento Bee, reporting on data from the U.S. Bureau of Economic Analysis, LA and Orange Counties saw an $8 billion drop in construction wages in 2010, as compared to 2006. In 2006, the region saw payrolls of $26.8 billion, but in 2010, that was reduced to $18.5 billion.



This was not the largest percentage change. Of the metropolitan areas with the largest declines in construction earnings, Las Vegas saw a $3.6 billion drop, however that represented half of their 2006 totals of $7.2 billion. Conversely, a $3.3 billion drop in the New York area represented only 10% of what had been $33.8 billion in payroll in 2006.

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