FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Texas EIFS Case May Have Future Implications for Construction Defects

October 02, 2013 — CDJ STAFF
Lennar Homes addressed a problem with EIFS in homes built in Texas in the 1990s by replacing every roof they had built. Some of those homes had problems with leaks, rotting, or termites, but other roofs hadn’t suffered any problems. Lennar’s insurers initially refused coverage. Lennar managed to settle with all but one, Markel American Insurance. Their dispute formed the case Lennar Corp. v. Markel American Insurance Co. This was first tried before a jury and eventually appealed to the Texas Supreme Court. Brian S. Martin of Thompson Coe Cousins & Irons LLP discusses this case at Insurance Journal. Markel’s claim was that under the policy language, Lennar could not make voluntary payments without getting Markel’s consent, which they did not. But the Texas Supreme Court disagreed, determining that Lennar took, as Mr. Martin notes, “a reasonable approach to a serious problem.” Markel also made the claim that the whole amount of the damages was not covered by the policy, as they did not view the policy as covering the cost of determining the extent of the damage. The Court disagreed, noting that “under no reasonable construction of the phrase can the cost of finding EIFS property damage in order to repair it not to be considered ‘because of the damage.’” Mr. Martin concludes by calling the Texas Supreme Court decision “a frontal assault on several critical provisions of liability policies that will assuredly lead to further litigation.” He also notes that the decision “may indicate a shift in the Court’s approach in insurance cases to a more result-oriented jurisprudence.” Read the court decision
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Reprinted courtesy of

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New Law Raises Standard for Defense Experts as to Medical Causation

September 05, 2023 — Haight Brown & Bonesteel LLP
On July 17, 2023, California Governor Gavin Newsom signed Senate Bill (SB) No. 652, adding Section 801.1 to the California Evidence Code. This section provides additional requirements for expert opinions relating to medical causation. In particular, it allows a party not bearing the burden of proof to offer a contrary expert in response to an expert proffered by a party bearing the burden of proof as to medical causation who is required to opine that causation exists to a reasonable medical probability. The contrary expert may only be proffered, however, if he or she is able to opine that an alternative medical causation is one that exists to a reasonable medical probability. Section 801.1, however, does not preclude an expert witness from testifying that a specific matter cannot meet a reasonable degree of probability in the applicable field. With respect to medical causation, a “reasonable degree of probability” means that the expert is testifying that a particular event or source was more likely than not the cause of a person’s injuries. Read the court decision
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Reprinted courtesy of Haight Brown & Bonesteel LLP

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Corps Issues Draft EIS for Controversial Alaskan Copper Mine

March 27, 2019 — Pam Radtke Russell - Engineering News-Record
A proposed copper and gold mine in Alaska could impact up to 12,000 acres of wetlands as well as local fisheries but would help meet a worldwide demand for copper, according to the draft environmental impact statement on the Pebble Mine in the Bristol Bay area of Alaska. Read the court decision
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Reprinted courtesy of Pam Radtke Russell, ENR
Ms. Russell may be contacted at Russellp@bnpmedia.com

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The Right to Repair Act (Civ.C §895 et seq.) Applies and is the Exclusive Remedy for a Homeowner Alleging Construction Defects

February 07, 2018 — Craig Wallace – Smith Currie
McMillin Albany LLC v. Superior Court (01.18.18) ____ Cal.4th _____ (2018 WL 456728) The California Supreme Court confirmed that the Right to Repair Act (CA Civil Code § 895, et seq. and often referred to by its legislative nomenclature as “SB800”) applies broadly to any action by a residential owner seeking recovery of damages for construction defects, regardless of whether such defects caused property damages or only economic losses. This includes the right in the Act of the builder to attempt repairs prior to the owner filing a lawsuit. Background Homeowners sued builder for construction defects. Included in their causes of action was a cause of action for violation of the Right To Repair Act. The Act requires that before filing litigation, a homeowner must give the builder notice and engage in a nonadversarial prelitigation process which gives the builder a right to repair the defects. The builder asked the court to stay the homeowners’ action so the prelitigaiton process could be undertaken. Rather than give the builder the repair right, the homeowners dismissed the particular cause of action from their case, leaving only other so-called common law and warranty causes of action. The common law claims sought recovery for property damage caused by the defects. The builder nonetheless asked to the Court to stay the action so it could exercise its right to repair. The trial court, relying on Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, denied builder’s request to stay the action. The Liberty Mutual Court concluded that certain common law construction defect claims fell outside the purview of the Act. Builder appealed. The Court of Appeal disagreed with Liberty Mutual, so did not follow it, granted the builder’s request for a stay, and directed that the homeowners afford the builder the right to repair the claimed defects as provided under the Act. The California Supreme Court affirmed, disapproving Liberty Mutual and the subsequent cases relying on it. Read the court decision
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Reprinted courtesy of Craig Wallace, Smith Currie
Mr. Wallace may be contacted at swwallace@smithcurrie.com

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Recording a Lis Pendens Is Crucial

January 04, 2023 — David Adelstein - Florida Construction Legal Updates
If you are in a construction dispute where you are pursuing a construction lien foreclosure action, recording a lis pendens is crucial. Did I say crucial? “[O]ne purpose of a notice of lis pendens is to alert all others that title to the property is involved in litigation and that ‘future purchasers or encumbrancers of that property’ are at risk of being bound by an adverse judgment.” Henry v. AIM Industries, LLC, 47 Fla.L.Weekly D653b (Fla. 2d DCA 2022). There really is never a reason not to record a lis pendens when pursing a construction lien foreclosure. Please remember that – don’t forget to record the lis pendens! There are times a lis pendens is recorded when the lis pendens is NOT based on a duly recorded instrument (e.g., construction lien or mortgage). A lis pendens, however, is recorded because the dispute is tied to the property in which the lis pendens is being recorded. The lis pendens is recorded to best safeguard the plaintiff’s interest in the real property without fear that the real property will be sold impacting the purpose (and, of course, security) of the lawsuit. 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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Kumagai Drops Most in 4 Months on Building Defect: Tokyo Mover

June 11, 2014 — Kathleen Chu and Kevin Buckland - Bloomberg
Kumagai Gumi Co. (1861), a Japanese construction company, fell the most in four months after saying an apartment complex it had built has defects. The shares dropped 5.7 percent to 264 yen at the close of trading in Tokyo, the biggest decline since Feb. 4. Construction flaws in supporting pillars were found in the building completed in March 2003 in Yokohama City, south of Tokyo, the company said in a statement through the stock exchange today. The residents have been asked to relocate to temporary shelters and further investigation is required, it said. “This is a big negative for Kumagai’s reputation and it may hurt the company’s future earnings,” said Yoji Otani, an analyst at Deutsche Bank AG in Tokyo. The latest defect comes after Mitsubishi Estate Co. (8802) said in March it will rebuild a residential complex, constructed by Kajima Corp. (1812), in central Tokyo, after defects were found. Mitsui Fudosan Co. (8801) said it would repair some parts of an apartment building in Kawasaki City after the builder Shimizu Corp. (1803) found cracks in the concrete of some columns in April. Ms. Chu may be contacted at kchu2@bloomberg.net; Mr. Buckland may be contacted at kbuckland1@bloomberg.net Read the court decision
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Reprinted courtesy of Kathleen Chu and Kevin Buckland, Bloomberg

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CGL Coverage Dispute Regarding the (J)(6) And (J)(7) Property Damage Exclusions

April 18, 2023 — David Adelstein - Florida Construction Legal Updates
A new insurance coverage opinion dealing with a commercial general liability’s (CGL) duty to defend involved exclusions commonly known as the (j)(6) and (j)(7) property damage exclusions (and in certain policies known as the (j)(5) and (j)(6) exclusions). These are the exclusions that apply during ongoing operations. Exclusion (l), or the “your work” exclusion, applies post-completion, i.e., it is an exclusion for “property damage” to “your work” included in the “products-completed operations hazard.” Exclusions (j)(6) and (j)(7) in the policy at-issue exclude coverage for property damage to:

(j)(6) That particular part of real property on which any insured or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; (j)(7) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.

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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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Boston Nonprofit Wants to Put Grown-Ups in Dorms

March 19, 2015 — Patrick Clark – Bloomberg
Here's a broad summary of millennials' housing problems: Stagnant wages and heavy debt loads have made it hard to afford a house, while high demand for rental units in the most happening cities allow landlords to raise rents, making it even harder to save for a down payment. In Boston, where these forces are particularly acute, urban policy wonks are offering a new solution: Put the young people in pens. OK, not quite. The authors of a new report from the Boston Foundation, a philanthropic organization that funds local nonprofits, prefer the phrase "millennial villages," dorm-like developments that maximize space by combining smaller living spaces with lots of common areas. Specifically, the report suggests building 10,000 units that make up for cramped living quarters by including shared lounges, health clubs, and shared areas for study, music practice, or launching a technology startup. For young tenants really interested in cutting costs, some could be built with shared kitchens. Read the court decision
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Reprinted courtesy of Patrick Clark, Bloomberg
Mr. Clark may be contacted at jclark185@bloomberg.net

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