Fairfield Connecticut Building Expert Directory

No Coverage for Faulty Workmanship Where Underlying Claim is Strictly Breach of Contract

June 30, 2016 — Tred R. Eyerly – Insurance Law Hawaii
Considering certified questions from the federal district court, the Arkansas Supreme Court followed a prior decision in deciding there was no coverage for property loss caused by faulty workmanship based solely on breach of contract. Columbia Ins. Group, Inc. v. Cenark Project Mgt. Services, Inc., 2016 Ark. LEXIS 185 (Ark. April 28, 2016). The homeowners entered a contract in 2005 with Arkansas Infrastructure, Inc. (AII) to construct pads for the construction of six homes. The contract provided that AII would perform the work in accordance with the plans, specifications, and drawings developed by CENARK Project Management Services, Inc. In 2012, the homeowners sued AII for breach of contract, alleging that AII had failed to construct the pads in accordance with the plans and specifications designed by CENARK. 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

Noncumulation Clause Limits Coverage to One Occurrence

January 07, 2015 — Tred R. Eyerly – Insurance Law Hawaii
Injury suffered by children of different families living at different times in the same apartment was limited to one occurrence under the policy's noncumulation clause. Nesmith v. Allstate Ins. Co., 2014 N.Y. LEXIS 3350 (N.Y. Nov. 25, 2014). The landlord had a liability policy issued by Allstate. The declarations page stated there was a $500,000 limit for "each occurrence." The policy contained the following noncumulation clause:

Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability . . . for damages resulting from one accidental loss will not exceed the limit shown on the declarations page. All bodily injury . . . resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Pennsylvania Modular Home Builder Buys Maine Firm

December 11, 2013 — CDJ STAFF
Excel Homes, a modular home builder based in Liverpool, Pennsylvania, has bought Keiser Homes, a modular home builder based in Oxford Hills, Maine. Excel sought to increase their capacity, which acquisition of the Oxford Hills facility allows. Excel had previously shown an interest in the property of an Oxford Hills modular home builder that had closed, Oxford Homes, but a decrease in sales of modular homes lead Excel to reconsider the purchase. Excel Homes plans on doubling the current output of the Oxford Hills facility and will be hiring additional employees. The purchase included all of Keiser’s machinery, trucks, trailers, equipment, and the customer list. Read the court decision
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Update: Where Did That Punch List Term Come From Anyway?

December 21, 2016 — Duane Craig – Construction Informer
I’ve often wondered just where the term “punch list” came from, and I’ve found a few sources that seem to make sense, while others not so much. Enter the Realm of Conjecture and Opinion One person claims it came from the telephone installer process of “punching down” terminals on a block. That seems a bit of a stretch though. A blog writer said it had to do with the term ‘punch’ since it means to “punch something up” as in fix it. Another blog writer thought it had something to do with a long forgotten practice. Apparently subcontractors used to each have their own hole punches that would punch a hole with a shape unique to them. They would use these punches to indicate they had corrected the deficiency that was their responsibility. Read the court decision
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Reprinted courtesy of Duane Craig, Construction Informer
Mr. Craig may be contacted at dtcraig@constructioninformer.com

Update: Lawyers Can Be Bound to Confidentiality Provision in Settlement Agreement

January 13, 2020 — Danielle Ward, Esq. - Balestreri Potocki & Holmes
In July 2019, the California Supreme Court ruled that an attorney’s signature under the often-used phrase “approved as to form and content” does not preclude a finding that the attorney could be bound to the terms of a settlement agreement. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781.) This decision marks a reversal of the Fourth District Court of Appeal’s 2018 ruling that approval of a contract is not tantamount to an agreement to be bound by that contract. The underlying action stemmed out of a wrongful death suit by Wendy Crossland and Richard Fournier, parents of the decedent, against Monster Energy Company. The parties negotiated a settlement, a critical of element of which was a confidentiality provision aimed at keeping the the settlement secret. The confidentiality provision prohibited plaintiffs and their counsel of record from disclosing both the existence of the settlement, or the terms thereof, to any person, entity, or publication, including the legal website Lawyers & Settlements. The attorneys signed the agreement under the phrase “approved as to form and content.” Shortly after the settlement agreement was executed, the Plaintiffs’ attorney Bruce Schechter disclosed his clients’ settlement with Monster in an interview with Lawyers & Settlements. Monster filed suit against Mr. Schechter for breach of contract, among other causes of action. Mr. Schechter challenged the lawsuit with a SLAPP motion, essentially arguing that the lawsuit was meritless and merely an attempt to thwart freedom of speech. The trial court denied Mr. Schechter’s motion as to the breach of contract cause of action finding that the settlement clearly contemplated that the attorneys were subjected to the terms of the agreement, and Schechter’s claim that he was not a party because he merely approved as to form and content was “beyond reason.” The Fourth District Court of Appeal reversed, concluding that Mr. Schechter was not a party to the agreement by virtue of his signature approving the form and content, and the Plaintiffs had no authority to bind their attorney to the terms of the agreement. The Court of Appeal found that by affixing his signature to the agreement Mr. Schechter was merely manifesting his “professional thumbs up” in line with legal industry’s customary understanding. In its reversal, the California Supreme Court did not disturb the legal community’s understanding of the phrase “approved as to form and content.” Rather, the Court concluded that an attorney’s signature under that often-used phrase does not preclude as a matter of law that the attorney intended to be bound by the agreement. The entire agreement, including the substantive provisions, need to be examined to determine the attorney’s intent in affixing his/her signature to the agreement. Turning to the Crossland/Fournier Monster settlement agreement, the Court was unpersuaded by Mr. Schechter’s argument that he was not bound to the agreement because counsel was not included in the definition of “party”. The Court stated that it’s the substance of the agreement that determines whether counsel is a party to the contract, as opposed to a party to the lawsuit. The Court was persuaded, in part, by the important role that confidentiality plays in brokering settlements. It noted that public disclosure of private settlements would serve to “chill” parties’ ability to resolve matters short of trial, and there was little doubt that confidentiality was an important term of the Crossland/Fournier Monster settlement. In concluding that Monster had met its burden to defeat an anti-SLAPP motion, the Court pointed to the numerous references to counsel in the substantive provisions of the agreement which a trier of fact could conclude bound Mr. Schechter to the confidentiality terms. Danielle Ward has concentrated her law practice on defending developer, general contractor, and subcontractor clients in a variety of construction matters. She has been an attorney with Balestreri Potocki & Holmes since 2010 and can be reached at dward@bph-law.com. Read the court decision
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Federal Court Reiterates Broad Duty to Defend in Additional Insured Cases

April 22, 2024 — Craig Rokuson - Traub Lieberman
In the recent case of Travelers Indem. Co. of Am. v. Accredited Sur. & Cas. Co., No. 21-CV-7189 (FB) (JRC), 2024 U.S. Dist. LEXIS 44634 (E.D.N.Y. Mar. 13, 2024), the Federal District Court for the Eastern District of New York had occasion to consider an additional insured tender on behalf of a prime contractor, Archstone, to a subcontractor, Topline, who was named as a direct defendant in a New York labor law case. Even though Topline’s carrier put forth evidence that Topline was not negligent, the court held, under New York’s broad duty to defend, that Topline’s carrier owed a duty to defend the prime contractor. Initially, the court was satisfied that a purchase order, signed only by Topline and not Archstone, was binding on Topline. That purchase order specified that Topline agreed to name Archstone as an additional insured. With respect to the duty to defend, the court found that it was enough that the underlying plaintiff alleged that all defendants, including Topline, were negligent in permitting a ladder that plaintiff was on to remain in a defective condition and in failing to foresee the existence of a hazard from the condition of the subject ladder. Read the court decision
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Reprinted courtesy of Craig Rokuson, Traub Lieberman
Mr. Rokuson may be contacted at crokuson@tlsslaw.com

Chambers USA 2021 Recognizes Five Partners and Two Practices at Lewis Brisbois

June 07, 2021 — Lewis Brisbois
Five Lewis Brisbois partners and two Lewis Brisbois practices were recently ranked by Chambers in its 2021 USA rankings list. Kansas City and Wichita Managing Partner Alan L. Rupe and Phoenix Managing Partner Carl F. Mariano were both ranked Band 1 for “Labor & Employment – Kansas” and “Insurance – Arizona,” respectively, while Minneapolis Partner Tina A. Syring was ranked Band 4 for “Labor & Employment – Minnesota,” and Washington D.C. Managing Partner Jane C. Luxton and Partner Karen C. Bennett were ranked Band 5 for “Environment – District of Columbia.” Significantly, Chambers also ranked Lewis Brisbois’ Kansas Labor & Employment Practice Band 2 and the firm’s Washington D.C. Environmental Practice Band 4. Read the court decision
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Reprinted courtesy of Lewis Brisbois

Can General Contractors Make Subcontractors Pay for OSHA Violations?

March 05, 2015 — Craig Martin – Construction Contractor Advisor
OSHA has long held the opinion that general contractors may be held liable for subcontractor’s OSHA violations and the Eighth Circuit Court of Appeals, overseeing the Midwest, has agreed since 2009. To combat this risk, general contractors would be well served to incorporate targeted indemnity provisions into their subcontracts that require subcontractors to pay for all claims and costs associated with subcontractor caused OSHA violations. OSHA’s Multi-Employer Policy OSHA’s Multi-Employer Policy, a/k/a OSHA Instruction CPL 02-00-124, allows OSHA to cite multiple employers at a single worksite for creating a hazard, or for failing to prevent or correct a hazard, even if their own workers are not exposed to the hazard. A ‘‘controlling’’ or ‘‘correcting’’ employer is liable for hazards that it did not take ‘‘reasonable care’’ to detect and prevent. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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