Fairfield Connecticut Building Expert Directory

Ohio Court of Appeals: Absolution Pollution Exclusion Bars Coverage for Workplace Coal-Tar Pitch Exposure Claims

January 10, 2018 — Complex Insurance Coverage Reporter

On December 28, 2017, the Ohio Court of Appeals (Eighth District) held in GrafTech International, Ltd., et al. v. Pacific Employers Ins. Co., et al., No. 105258 that coverage for alleged injurious exposures to coal tar pitch was barred by a liability insurance policy’s absolute pollution exclusion. Applying Ohio law, the court concluded that Pacific Employers had no duty to defend GrafTech or pay defense costs in connection with claims by dozens of workers at Alcoa smelting plants that they were exposed to hazardous substances in GrafTech products supplied to Alcoa as early as 1942.

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Reprinted courtesy of White and Williams LLP

Portion of Washington State’s Prevailing Wage Statute Struck Down … Again

July 04, 2023 — Brett Hill & Mason Fletcher - Ahlers Cressman & Sleight
In 2018, the Washington Legislature amended its prevailing wages statute adopting S.S.B 5493 and codified as RCW 39.12.015(3). RCW 39.12.015(3) changed how the Washington State Department of Labor and Industries’ industrial statistician set the prevailing wages for employees on public works projects, from a county-by-county basis to a “geographic jurisdiction” basis established in collective bargaining agreements (“CBA”) or if multiple CBAs, the CBA with the higher wage would prevail. This change proved problematic for contractors since it allowed a minority of employees to determine the prevailing wage through side agreements and limited meaningful wage negotiations by industry trade groups. Contrary to the previous rule wherein wages were set by the average or majority wage rate in a certain county (which was normally the collectively bargained wage) and provided some flexibility to the industrial statistician in determining the prevailing wage, now, RCW 39.12.015(3)(a) directs the industrial statistician to “establish the prevailing rate of wage by adopting the hourly wage … paid for the geographic jurisdiction established in [CBAs],” removing flexibility, and requiring the inclusion of CBA (which could encompass multiple counties) wage rates as a part of the prevailing wage formula. Reprinted courtesy of Brett Hill, Ahlers Cressman & Sleight and Mason Fletcher, Ahlers Cressman & Sleight Mr. Hill may be contacted at brett.hill@acslawyers.com Mr. Fletcher may be contacted at mason.fletcher@acslawyers.com Read the court decision
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Circumstances In Which Design Professional Has Construction Lien Rights

February 24, 2020 — David Adelstein - Florida Construction Legal Updates
If you are a design professional (architect, landscape architect, interior designer, engineer, surveyor, or mapper) you have construction lien rights in the event you are not paid. This does not mean your lien rights are absolute so it is important to understand the circumstances which allow you to record a construction lien on a project. These circumstances are contained in Florida Statute s. 713.03: (1) Any person who performs services as architect, landscape architect, interior designer, engineer, or surveyor and mapper, subject to compliance with and the limitations imposed by this part, has a lien on the real property improved for any money that is owing to him or her for his or her services used in connection with improving the real property or for his or her services in supervising any portion of the work of improving the real property, rendered in accordance with his or her contract and with the direct contract. (2) Any architect, landscape architect, interior designer, engineer, or surveyor and mapper who has a direct contract and who in the practice of his or her profession shall perform services, by himself or herself or others, in connection with a specific parcel of real property and subject to said compliances and limitations, shall have a lien upon such real property for the money owing to him or her for his or her professional services, regardless of whether such real property is actually improved. 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

“Bound by the Bond”

September 02, 2024 — Daniel Lund III - Lexology
A New York trial court granted judgment in favor of a performance bond surety on a construction project, based upon the failure of the claiming party to abide by the terms of the bond. The “AIA Document A312” bond form – described by the court (quoting surety law authority) to be “one of the clearest, most definitive, and widely used type of traditional common law ‘performance bonds’ in private construction” – contains various procedures which must be honored as a “condition precedent to an action to recover” on the bond/against the surety. One of those prerequisites is a “declaration of default” concerning the contractor principal (here, a subcontractor). The case involved the construction of an 85-story skyscraper in midtown Manhattan, and the performance of the subcontract for the building’s superstructure. The bonded contract was at a value of approximately $25,000,000 and obligated the sub to provide a performance bond “in a form similar to the [A312 bond],” and which was otherwise satisfactory to the obligee/construction manager. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

2019 California Construction Law Update

January 15, 2019 — Garret Murai - California Construction Law Blog
The California State Legislature introduced 2,637 bills during the second year fo the 2017-2018 Legislative Session. Of these, 1,016 were signed into law. It was last official bill signing for Governor Jerry Brown who ends not only his second term as Governor but a colorful political career spanning nearly 50 years during which he has dated pop stars, practiced Zen meditation, kicked it with radical ex-nuns and an Apollo astronaut and, at 80, has sparred regularly with President Trump on issues ranging from climate change to immigration to net neutrality. For those in the construction industry it wasn’t quite as exciting, unless of course you count SCR 120, which officially makes April “California Safe Digging Month.” Hooray! Each of the bills discussed below took effect on January 1, 2018, except as otherwise stated. Building Codes SB 721 – Requires the inspection of exterior elevated elements, including balconies, decks, porches, stairways, walkways, and elevated entry structures, of multifamily buildings with three or more dwelling units by an architect, engineer or contractor with a Class A, B or C-5 license by January 1, 2025 and by January 1st every six years thereafter. Elements posing an immediate threat to the safety of occupants, or which prevent occupant access or emergency repairs, are required to be repaired immediately. Elements not posing an immediate threat to the safety of occupants, or which do not prevent occupant access or emergency repairs, are required to be repaired within 180 days. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen
Mr. Murai may be contacted at gmurai@wendel.com

Texas Construction Firm Officials Sentenced in Contract-Fraud Case

August 07, 2018 — Tom Ichniowski – Engineering News-Record
Two top officials of a Texas construction company—Honest, Experienced, Reliable Contracting Solutions LLC—have been sentenced to federal prison terms for defrauding the State Dept. through a plan to steer more than $1 million in contracts to the company, the Dept. of Justice says. Read the court decision
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Reprinted courtesy of Tom Ichniowski, ENR
Mr. Ichniowski may be contacted at ichniowskit@enr.com

Fifth Circuit Certifies Eight-Corners Duty to Defend Issue to Texas Supreme Court

June 21, 2021 — Jeremy S. Macklin - Traub Lieberman Insurance Law Blog
In the recent case of Bitco Gen. Ins. Corp. v. Monroe Guar. Ins. Co., No. 19-51012, 2021 WL 955155 (5th Cir. Mar. 12, 2021), certified question accepted (Mar. 19, 2021), the Fifth Circuit Court of Appeals certified to the Texas Supreme Court the question of whether a court can consider extrinsic evidence when determining an insurer’s duty to defend. The underlying lawsuit stems from a construction contract in which J&B Farms of Texas hired 5D, a construction company, to drill a commercial irrigation well through the Edwards Aquifer. Two years after beginning the project, J&B Farms sued 5D and its President for breach of contract and negligence. J&B Farms alleged that while drilling, 5D “stuck the drilling bit in the bore hole, rendering the well practically useless for its intended/contracted for purpose.” 5D then “failed and refused to plug the well, retrieve the drill bit, and drill a new well.” J&B Farms asserted that 5D drilled the well “with unacceptable deviation” and then “abandon[ed] the well.” 5D notified its insurers, BITCO and Monroe, of the lawsuit and demanded a defense from both. BITCO agreed to provide a defense to 5D, but Monroe refused arguing that the alleged property damage fell outside the relevant policy period, and therefore, it had no duty to defend 5D. BITCO then filed a declaratory judgment action seeking a finding that Monroe owed 5D a duty to defend. Read the court decision
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Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman
Mr. Macklin may be contacted at jmacklin@tlsslaw.com

Ambiguity in Insurance Policy will be Interpreted in Favor of Insurance Coverage

July 19, 2017 — David Adelstein - Florida Construction Legal Updates
An ambiguity in an insurance policy–after reading and interpreting the policy as a whole–will be construed against an insurer. This means an ambiguity will be construed in favor of insurance coverage (for the benefit of the insured) as opposed to against insurance coverage. This does not mean that every insurance policy contains an ambiguity. This also does not mean a court will interpret plain and ordinary words contrary to their conventional meaning or definition. But, as we all know, insurance policies are not the easiest of documents to decipher and ambiguities do exist relating to a particular issue or circumstance to the benefit of an insured. An insured that is dealing with specific insurance coverage issues should make sure they are working with counsel that looks to maximize insurance coverage, even if that means exploring ambiguities that will benefit an insured based on a particular issue or circumstance. An example of an ambiguity in an insurance policy relating to a particular issue that benefitted an insured can be found in the Florida Supreme Court decision of Government Employees Insurance Co. v. Macedo, 42 Fla. L. Weekly S731a (Fla. 2017). This case involved an automobile accident and the interpretation of an automobile liability policy. 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

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