Fairfield Connecticut Building Expert Directory

Third Circuit Affirms Use of Eminent Domain by Natural Gas Pipeline

November 28, 2018 — Anthony B. Cavender - Gravel2Gavel
On October 30, the U.S. Court of Appeals for the Third Circuit decided the case of Transcontinental Gas Pipe Line Co., LLC v. Permanent Easements for 2.14 Acres, et al. , affirming the District Court’s grant of a preliminary injunction to Transcontinental Gas Pipe Line Company, LLC (Transcontinental). This case involves the construction of the “Atlantic Sunrise Expansion Project,” a natural gas pipeline that runs through Pennsylvania, Maryland, Virginia, North Carolina and South Carolina. Under the Natural Gas Act (NGA), pipeline companies can exercise powers of eminent domain when they are acting in the public interest. The Third Circuit cautions that this is a “standard” eminent domain power, and not a “quick take” that is permitted under another statute. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Ninth Circuit Court Weighs In On Insurance Coverage For COVID-19 Business Interruption Losses

October 11, 2021 — Rondi J. Walsh - Newmeyer Dillion
On October 1, 2021, the Ninth Circuit Court of Appeals ruled on a trio of cases involving COVID-19 business interruption losses, in a series of written opinions with results favoring the insurers. Despite the slate of wins for insurers in this round of cases, these rulings are limited to cases where policyholders either did not allege the presence of COVID-19 on their premises causing “physical alteration” of the property itself, or had a virus exclusion in their policy, or both. This leaves room for future cases potentially ruling in favor of coverage where the insureds allege the presence of coronavirus on the premises, and that there was a detrimental physical alteration of the property as a result. To date, the Ninth Circuit has not ruled on such a situation. RULING 1: Mudpie v. Travelers Casualty Insurance Co. of America The Ninth Circuit first considered a proposed class action brought by a children’s store operator, Mudpie. Mudpie sought business income and extra expense coverage from Travelers after California and local authorities issued shutdown orders impacting Mudpie’s operations due to COVID-19. (Mudpie, Inc. v. Travelers Casualty Insurance Company of America, Case No. 20-16858, --- F.4th --- (9th Cir. Oct. 1, 2021).) Travelers denied coverage, asserting that the claim did not involve “direct physical loss of or damage to” property “caused by or resulting from a covered Cause of Loss.” Travelers also denied coverage under language excluding “loss or damage caused by or resulting from any virus…that induces…physical distress, illness or disease.” Applying California law, the trial court agreed with Travelers on both accounts. Read the court decision
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Reprinted courtesy of Rondi J. Walsh, Newmeyer Dillion
Ms. Walsh may be contacted at rondi.walsh@ndlf.com

Insurer Must Indemnify Additional Insured After Settlement

October 21, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The court determined that Target was an additional insured under its supplier's policy and the insurer had a duty to indemnify Target after it settled the underlying suit. Selective Ins. Co. v. Target Corp., 2015 U.S. Dist. LEXIS 123230 (E.D. Ill. Sept. 15, 2015). Angela Brown sued Target when she was allegedly injured by a door to a fitting room that came unhinged and fell on her head. Harbor Industries, Inc. supplied Target with its fitting rooms. Pursuant to the "Supplier Qualification Agreement" (SQA), Harbor named Target as an additional insured under its policy with Selective Insurance Company. The SQA became effective and was to remain in effect until terminated by either party. A second agreement, the "Program Agreement," set forth the terms under which Harbor sold the fitting rooms to Target. The Program Agreement went into effect on April 23, 2009, and expired on July 1, 2010. Brown's injury occurred on December 17, 2011, while the SQA and the policy were in effect, but after the Program Agreement expired. After Brown's injury, Target tendered to Selective, who denied coverage, contending Target was not an additional insured. The policy's endorsement expanded insureds to any additional insured whom Harbor agreed in a written contract to add as an additional insured. Selective filed suit and the parties filed cross-motions for summary judgment. 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

How to Protect a Construction-Related Invention

May 10, 2021 — Patrick Barthet - Construction Executive
They say necessity is mother of invention. That was surely true for Johan Vaaler, who in 1899 decided he was tired of having to sew pages together to keep them organized. Voila, enter the paper clip. This wasn’t the case for Percy Spencer. He was a radar tube designer working at Raytheon who, while working in front of an active radar set, noticed the candy bar in his pocket started to melt. Exploring the phenomenon further, he placed corn kernels in front of the radar and behold, he ended up with the world’s first microwaved popcorn. He patented the microwave oven in 1945. Whether by necessity or by accident, what should contractors do if they develop a unique tool to accomplish some portion of their work faster, easier or less expensively? How do they protect it from misappropriation by competitors, or by an errant employee? We are all familiar with the fact that in today’s internet-driven market, it has become very easy to reverse engineer and knock off an innovative product. The best way to safeguard an invention is, of course, to register it with the appropriate government agency:the United States Patent and Trademark Office (USPTO). Generally done with the assistance of a patent lawyer, the process is neither inexpensive or abbreviated. It could cost several thousand dollars and take 12 to 18 months. But, more importantly, this is not sufficient. Inventors must regularly monitor their patents to police possible infringers. Many folks think the USPTO does this, but it does not. Reprinted courtesy of Patrick Barthet, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Barthet may be contacted at pbarthet@barthet.com

Contractor Covered for Voluntary Remediation Efforts in Completed Homes

October 10, 2013 — Tred Eyerly — Insurance Law Hawaii
The Texas Supreme Court held that a home builder was covered for the voluntary removal and replacement of a defective insulation product it had installed in hundreds of homes. Lennar Corp. v. Market Am. Ins. Co., 2013 Tex. LEXIS 597 (Tex. Sup. Ct. Aug. 23, 2013). Lennar built homes using an exterior insulation and finish system (EIFS). It was subsequently determined that EIFS trapped water inside homes with wood-frame walls, causing rot and structural damage, mildew and mold, and termite infestation. Lennar decided to contact all its homeowners and offer to remove the EIFS and replace it with conventional stucco. Lennar notified its insurers that it would seek indemnification for the costs. The insurers refused to participate in Lennar's proactive efforts, preferring to wait and respond to homeowners' claims one by one. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

The “Right to Repair” Construction Defects in the Rocky Mountain and Plains Region

October 16, 2018 — Jean Meyer & Sheri Roswell - Colorado Construction Litigation Blog
In excess of 30 states have enacted tort reform legislation requiring property owners to notify construction professionals of the presence of alleged construction defects prior to the commencement of a lawsuit. These statutes also often permit construction professionals to make an offer of repair within a statutorily defined period of time after receipt of a notice of claim letter. Undoubtedly, the notice-of-claim process has played a meaningful part in bringing construction professionals and claimants to timely resolutions of construction defect concerns in isolated instances. However, while these statutes are commonly referred to as “right of repair” legislation, their practical effect is often reduced to little more than procedural empty gestures serving as a prelude to litigation. This article will briefly survey the “right to repair” statutes in Colorado, Montana, North Dakota and South Dakota. In Nebraska, New Mexico, Utah and Wyoming there is no right to repair or notice-of claim statue. Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell LLC and Sheri Roswell, Higgins, Hopkins, McLain & Roswell LLC Mr. Bracken, may be contacted at meyer@hhmrlaw.com Ms. Russo may be contacted at roswell@hhmrlaw.com Read the court decision
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In Florida, Exculpatory Clauses Do Not Need Express Language Referring to the Exculpated Party's Negligence

October 02, 2015 — Edward Jaeger & William Doerler – White and Williams LLP
In Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015), the Supreme Court of Florida considered whether a party to a contract, in order to be released from liability for its own negligence, needs to include an express reference to negligence in an exculpatory clause. The court held that, unlike an indemnification clause, so long as the language in an exculpatory clause is clear, the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not, for that reason alone, render the exculpatory clause ineffective. Background Give Kids the World, Inc. (“GKW”) is a non-profit organization that provides free vacations to seriously ill children and their families at GKW’s resort village. To use the resort, vacationers have to fill out an application. Stacy and Eric Sanislo filled out an application to bring their seriously ill child to the village for a vacation and GKW accepted their application. Upon arriving at the resort, the Sanislos filled out a liability release form. Reprinted courtesy of Edward Jaeger, White and Williams LLP and William Doerler, White and Williams LLP Mr. Jaeger may be contacted at jaegere@whiteandwilliams.com Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com Read the court decision
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The Pandemic, Proposed Federal Privacy Regulation and the CCPA

November 02, 2020 — Heather Whitehead - Newmeyer Dillion
The U.S. Senate Committee on Commerce, Science and Transportation met recently to discuss considerations for implementing federal privacy laws. Not surprisingly, the main impetus to reevaluate a federal framework is the ongoing COVID-19 pandemic with the greatly increased reliance on online working and school arrangements, as well as the need to share personal information for contact tracing and other efforts to weaken the pandemic. While federal regulation of personal information has been proposed in the past, there are a few key issues that still remain unresolved. One is enforcement of the regulations. The issue is whether enforcement should be handled by the Federal Trade Commission or if the establishment of a new federal authority is needed to enforce privacy requirement violations. Other key outstanding issues include pre-emption of state rights and whether any regulations should include a private right of action. Given that the California Consumer Privacy Act of 2018 (CCPA) is the most stringent state regulation addressing data privacy in the United States, California Attorney General Xavier Becerra participated as a witness in the recent Senate Hearing. He shared his opinions as to both federal pre-emption and the need for a private right of action. He recommended that the committee preclude federal regulation from pre-empting state laws, including the CCPA. He noted that individual states are in a better position to adapt and keep up with technological innovation, and that some states have also already implemented thorough privacy protections, such as Mississippi and Washington. With respect to the private right of action, he admitted his office can only do so much to enforce these regulations amongst California’s huge population of businesses and residents. His belief is that individual consumers need the ability to pursue their own remedies in court. Read the court decision
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Reprinted courtesy of Heather Whitehead, Newmeyer Dillion
Ms. Whitehead may be contacted at heather.whitehead@ndlf.com

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