FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Do Not Forfeit Coverage Under Your Property Insurance Policy

February 22, 2021 — David Adelstein - Florida Construction Legal Updates
If you have read prior articles (see here and here as an example), then you know that when it comes to first-party property insurance policies, an insured must comply with post-loss obligations in the policy. Failure to comply with a post-loss obligation gives the insurer the argument that the insured materially breached the policy and, therefore, forfeited rights to coverage. Naturally, this is avoidable by ensuring post-loss obligations are complied with, ideally under the guidance of counsel and qualified public adjusters to ensure your rights are being preserved and maximized.

[W]hen an insurer has alleged, as an affirmative defense to coverage, and thereafter has subsequently established, that an insured has failed to substantially comply with a contractually mandated post-loss obligation, prejudice to the insurer from the insured’s material breach is presumed, and the burden then shifts to the insured to show that any breach of post-loss obligations did not prejudice the insurer. Universal Property & Casualty Ins. Co. v. Horne, 46 Fla.L.Weekly D201b (Fla. 3d DCA 2021) quoting American Integrity Ins. Co. v. Estrada, 276 So.3d 905, 916 (Fla. 3d DCA 2019).

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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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Vermont Supreme Court Finds COVID-19 May Damage Property

November 07, 2022 — Michael S. Levine & Lorelie S. Masters - Hunton Insurance Recovery Blog
As reported on this blog, policyholders have long been of the view that the presence of substances like COVID-19 and its causative virus SARS-CoV-2, which render property dangerous or unfit for normal business operations, should be sufficient to trigger coverage under commercial all-risk insurance, as has been the case for more than 60 years. However, many courts, federal courts in particular, despite decades of pro-policyholder precedent, have embraced the view that “viruses harm people, not [property].” Thirty-one months after the start of the pandemic, the first state high court has gone in a different direction, according greater weight to pro-policyholder precedent. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Lorelie S. Masters, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Masters may be contacted at lmasters@HuntonAK.com Read the court decision
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Unravel the Facts Before Asserting FDUTPA and Tortious Interference Claims

September 05, 2022 — David Adelstein - Florida Construction Legal Updates
CMR Construction and Roofing, LLC v. UCMS, LLC, 2022 WL 3012298 (11th Cir. 2022) is an interesting opinion where a contractor asserted a Florida’s Deceptive and Unfair Trade Practices Act (known by its acronym “FDUTPA”) claim and tortious interference claims (with a contract and with an advantageous business relationship) against another contractor, i.e., a competitor, that were dismissed from the get-go. It is an opinion worthy of interest based on the claims asserted against a competitor. Throwing around FDUTPA and tortious interference may sound good from an intimidation standpoint, but pleading and then proving these claims are a lot different than loosely throwing around these claims. Before filing a lawsuit for FDUTPA and tortious interference, spend time unraveling the facts and the chronology. Do not rely on conclusory allegations simply to check the box regarding required elements to plead while ignoring the actual facts that support the allegations. These are fact-based claims and it is imperative the facts are fully known from on the onset so that they can be strategically pled and pursued. In this matter, a contractor, the plaintiff, was hired by a condominium association around April 2018 to repair damage caused by a hurricane which included roofing work. The association was going to have its insurer pay its contractor. In May 2020, the association hired a new contractor to perform the same work (the “new contractor”). The association then directed the plaintiff to cease work since it hired the new contractor. 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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Alabama Court Upholds Late Notice Disclaimer

August 20, 2018 — Brian Margolies - TLSS Insurance Law Blog
In its recent decision in Evanston Ins. Co. v. Yeager Painting, LLC, 2018 U.S. Dist. LEXIS 130316 (N.D. Ala. Aug. 3, 2018), the United States District Court for the Northern District of Alabama had occasion to consider an insured’s reporting obligations under a general liability policy. Evanston’s insured, Yeager, was hired to sandblast water tanks, and in turn, subcontracted out the work to a third party. On May 19, 2012, an employee of the subcontractor was severely injured in connection with a work-site accident. It is not entirely clear when Yeager provided notice of occurrence to Evanston, although Evanston advised by letter dated January 30, 2013 that it would be further investigating the matter subject to a reservation of rights. Evanston subsequently denied coverage by letter dated April 10, 2013, the disclaimer based on a subcontractor exclusion on the policy. Notably, Evanston’s letter advised that Yeager should immediately contact Evanston if any facts changed or if it had any additional information concerning the matter. Read the court decision
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Reprinted courtesy of Brian Margolies, Traub Lieberman Straus & Shrewsberry LLP
Mr. Margolies may be contacted at bmargolies@tlsslaw.com

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Trump Signs $2-Trillion Stimulus Bill for COVID-19 Emergency

April 06, 2020 — Tom Ichniowski - Engineering News-Record
President Donald Trump has signed the massive measure approved by Congress aimed at helping laid-off workers, financially strapped companies and a stressed health care system as a result of the coronavirus outbreak. Final congressional action came on March 27, when the House passed the bill by voice vote. President Trump signed it a short time later. Tom Ichniowski, Engineering News-Record Mr. Ichniowski may be contacted at ichniowskit@enr.com Read the full story... Read the court decision
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Application Of Two Construction Contract Provisions: No-Damages-For-Delay And Liquidated Damages

February 14, 2022 — David Adelstein - Florida Construction Legal Updates
A recent Florida opinion between a prime contractor and a Florida public body touches upon two important issues: (1) the application of a no-damage-for-delay provision; and (2) the application of a liquidated damages provision. Both provisions find there way into many construction contracts. Unfortunately, the opinion is sparse on facts. Nevertheless, the application of these provisions is worthy of consideration. In this opinion, Sarasota County v. Southern Underground Industries, Inc., 2022 WL 162977 (Fla. 2d DCA 2022), a county hired a contractor to install sanitary and water piping underneath a waterway. During construction, a nearby homeowner complained that vibration from the drilling caused damage to his home. As a result, the county stopped the contractor’s work to address a potential safety issue, as it was contractually entitled to do. The contractor hired a structural engineer to inspect the house and the engineer issued a report determining that any alleged damage was cosmetic and that there was sufficient monitoring of the vibrations to prevent future damage. The contractor also had an insurance policy to cover any homeowner claim for damage. However, upon receipt of the engineer’s report, the county did not lift its stop work order. Rather, the stop work order remained in place for an additional 71 days. 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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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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#4 CDJ Topic: Vita Planning and Landscape Architecture, Inc. v. HKS Architects, Inc.

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
In the above mentioned case, a Texas architectural firm (HKS Architects, Inc.) hired a California design firm (Vita Planning and Landscape Architecture, Inc.) as a sub-consultant, according to Garret Murai of Wendel Rosen Black & Dean LLP in a post on his California Construction Law Blog. After Vita filed a complaint in California against HKS, HKS filed a motion to dismiss on the grounds that the landscape design contract included a “Texas forum selection clause.” The court found in favor of Vita, stating that “section 410.42 precludes enforcement of the forum selection clause requiring Vita to litigate its dispute against HKS in Texas.” Read the full story... In their article, “Court of Appeal Opens Pandora’s Box on Definition of ‘Contractor’ for Forum Selection Clauses,” Haight Brown & Bonesteel LLP attorneys Abigail E. Lighthart and David A. Harris also analyzed the Vita case: “The Vita ruling expands the protections by Section 410.42 beyond traditional ‘builders’ to design professionals and architects who do not actually ‘build’ a project. What remains to be seen is whether other courts will take the expansion to cover other groups that are in any way involved in a construction project.” Read the full story... Read the court decision
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