FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Cooperating With Your Insurance Carrier: Is It a Must?

January 02, 2024 — Susana Arce - Saxe Doernberger & Vita, P.C.
A majority of insurance policies require the insured to cooperate with the insurer. The cooperation clause generally states, “the insured agrees to Cooperate with us in the investigation, settlement or defense of the suit.” The “cooperation clause” is often an afterthought because once litigation has ensued an insured is focused on other important considerations. However, insureds should not forget that complying with the cooperation clause can make the difference between the insurer covering or denying a claim. The Cooperation Clause in Action The Court in HDI Glob. Specialty SE v. PF Holdings, LLC,1 highlighted the importance of cooperating with an insurance carrier. In the underlying litigation, residents of an apartment complex sued four entities, all insured by the same insurance policy: two were named insureds and two were additional insureds. The primary insurer provided a defense for the named insureds. Read the court decision
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Reprinted courtesy of Susana Arce, Saxe Doernberger & Vita, P.C.
Ms. Arce may be contacted at SArce@sdvlaw.com

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Corps Spells Out Billions in Infrastructure Act Allocations

February 14, 2022 — Tom Ichniowski - Engineering News-Record
The Army Corps of Engineers has released a detailed project-by-project breakdown outlining how it plans to spend the 2022 portion of the $17.1-billion infusion provided for its civil works program in the Infrastructure Investment and Jobs Act (IIJA). Reprinted courtesy of 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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Illinois Supreme Court Holds That the Implied Warranty of Habitability Does Not Extend to Subcontractors

March 04, 2019 — Michael J. Ciamaichelo - The Subrogation Strategist
The implied warranty of habitability allows a homeowner to recover damages for latent defects that interfere with the intended use of a home. In Sienna Court Condo. Ass’n v. Champion Aluminum Corp., 2018 IL 122022, 2018 Ill. LEXIS 1244 (2018), the Supreme Court of Illinois held that buyers of new homes cannot assert claims for breach of the implied warranty of habitability against subcontractors involved in the construction of the homes because the subcontractors have no contractual relationship with the homeowners and the damages are purely economic. As the court explained, the implied warranty of habitability is a creature of contract (not tort) and, therefore, only exists when there is contractual privity between the defendants and the homeowners. In Sienna, a group of condominium unit owners alleged that their new homes contained latent construction defects and asserted claims against the various parties involved in the construction and sale of the homes, including claims against the defendant subcontractors for breach of the implied warranty of habitability. The plaintiffs contracted with the property developer to purchase the homes, but the plaintiffs had no contractual relationship with the subcontractors involved in the construction of the homes. The Sienna court, overturning the decisions of the trial court and the appellate court, granted the subcontractors’ joint motion to dismiss the plaintiff’s claims for the implied warranty of habitability because the plaintiffs had no contractual relationship with the subcontractors and the damages were purely economic. Read the court decision
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Reprinted courtesy of Michael J. Ciamaichelo, White and Williams LLP
Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com

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Report: Construction Firms Could Better Protect Workers From Noise Hazards

April 17, 2019 — Joanna Masterson - Construction Executive
Given that about three-quarters of construction workers are exposed to noise levels above the recommended limit, 83 percent of the 237 contractors surveyed for a new Dodge Data & Analytics SmartMarket Brief say they’ve purchased quieter equipment, yet well over half of those firms report their company could do better. Additionally, 85 percent of contractors report using hearing protection onsite more than 50 percent of the time, yet less than half say they always use it, suggesting a significant opportunity for improvement in the industry. Digging deeper, the survey determined small companies lag behind large and midsize ones in the use of hearing protection. Also, half of general contractors report always using hearing protection, compared to about one-third of trade contractors. Reprinted courtesy of Joanna Masterson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Coronavirus and Contract Obligations

March 30, 2020 — David R. Cook - AHC Construction and Procurement Blog
The Coronavirus (COVID-19) pandemic has caused a global disruption to businesses, causing many to temporarily close and lay off employees. As businesses assess the short– and long–term economic impact of COVID-19, they should also evaluate what contractual obligations and remedies are available under various agreements (e.g., leases, vendor agreements, and supply agreements). When performance may be delayed or may not occur altogether, businesses should consider their force majeure clauses, if any, and the doctrines of impossibility, impracticability, and frustration of purpose. Force Majeure Generally, unless a contract provides that performance will be suspended or relieved when certain events occur (e.g., “acts of God,” government regulation, acts of war or terror, strikes), each party is obligated to perform. However, when there is an express force majeure provision, certain events or acts may excuse non-performance or delayed performance. But depending on the jurisdiction, courts may construe force majeure provisions narrowly and excuse performance only for those events expressly listed in the clause. Nonetheless, if the force majeure provision includes pandemic, epidemic, quarantine, government act, disease, or similar terms, then the COVID-19 pandemic may excuse performance or allow delayed performance. Read the court decision
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Reprinted courtesy of David R. Cook, Autry, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

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COVID-19 Vaccine Considerations for Employers in the Construction Industry

July 11, 2021 — Maggie Spell - ConsensusDocs
1. Can employers in the construction industry require employees to receive a COVID-19 vaccine as a condition of employment? In short, it depends. Back in December 2020, the U.S. Equal Employment Opportunity Commission (EEOC) explained that, generally speaking (and under federal law), employers can require employees to receive the COVID-19 vaccine. However, there are a few caveats. First, certain employees may need to be excused from a mandatory vaccination requirement as a reasonable accommodation unless it will present undue hardship. Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to employees with a covered disability that prevents them from receiving the vaccine. (Fact sheets for the COVID-19 vaccines include examples of some of the underlying medical conditions that may result in an accommodation request.) And under Title VII of the Civil Rights Act of 1964, employers are similarly required to provide reasonable accommodations to employees with sincerely held religious beliefs, practices, or observances that prevent them from getting the vaccine. Employers requiring the vaccination would be wise to consult with an experienced employment lawyer before denying an accommodation. Accommodation issues stemming from administration of the COVID-19 vaccine (and COVID-19 more generally) are likely to plague employers for a while, so getting ahead of this issue is key. Read the court decision
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Reprinted courtesy of Maggie Spell, Jones Walker LLP
Ms. Spell may be contacted at mspell@joneswalker.com

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Reasonableness of Liquidated Damages Determined at Time of Contract (or, You Can’t Look Back Again)

October 05, 2020 — Christopher G. Hill - Construction Law Musings
I’ve discussed the continuing litigation between White Oak Power Constructors v. Mitsubishi Hitachi Power Systems Americas, Inc. previously here at Construction Law Musings because the case was another reminder that your construction contract terms matter and will be interpreted strictly here in the Commonwealth of Virginia. The prior opinion in this case from the Eastern District of Virginia court the Court considered the applicability of a liquidated damages provision. In the latest opinion from the Court (PDF) the Court looked at when and how any liquidated damages would be calculated. In its June 22, 2020 opinion, the Court put the issue as follows:

White Oak’s motion for partial summary judgment presents a narrow issue: whether courts may consider the damages actually sustained by a party as a result of a contract breach when deciding if liquidated damages required by a contract “grossly exceed” a party’s actual damages.

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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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Assignment of Insured's Policy Ineffective

April 06, 2016 — Tred R. Eyerly – Insurance Law Hawaii
An assignment of policy rights made before the policy was issued was ineffective. W. Alliance Bank v. Nat'l Union Fire Ins. Co., 2016 U.S. Dist. LEXIS 19936 (N.D. Cal. Feb. 18, 2016). The bank issued a loan to Sorrento Networks, Inc. in 2011. As collateral, Sorrento gave the bank a continuing security interest in all of Sorrento's personal property, including its inventory, commercial tort claims and insurance proceeds. The loan agreement authorized the back to act on Sorrento's behalf in collecting any money owed to Sorrento and prosecuting any claims that Sorrento might have. 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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