FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Florida Duty to Defend a Chapter 558 Right to Repair Notice

July 30, 2015 — Scott Patterson – CD Coverage
In Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Co., 2015 WL 3539755 (S.D. Fla. 2015), Altman was the general contractor for a residential condominium project. The condominium association served Altman with Chapter 558 notices. A Chapter 558 notice is a statutory prerequisite to a property owner’s construction defect lawsuit and provides the contractor with an opportunity to respond and avoid litigation. Altman demanded that its CGL insurer, Crum & Forster, provide a defense to the Chapter 558 notices by hiring counsel to represent Altman’s interests. While not disputing that the claimed defects may be covered under the policy, Crum & Forster denied any duty to defend against the notices on the basis that they did not constitute a “suit.” Altman filed suit. Read the court decision
Read the full story...
Reprinted courtesy of Scott Patterson, CD Coverage

---

General Contractor Intervening to Compel Arbitration Per the Subcontract

December 06, 2021 — David Adelstein - Florida Construction Legal Updates
It is not uncommon that a general contractor’s subcontract will include an arbitration provision. Or it will allow the general contractor to select binding arbitration as the method to resolve disputes at the general contractor’s SOLE OPTION. A general contractor’s subcontract should absolutely give the general contractor this important right. (Keep this in mind when drafting dispute resolution provisions for a general contractor.) It is also not uncommon for a subcontractor the sue a general contractor’s payment bond surety, and NOT the general contractor. One reason to do this is to create an argument to avoid the dispute resolution provision in the subcontract. (Another reason is to avoid any pay-if-paid defense.) When this occurs, a general contractor may still want to arbitrate the subcontractor’s payment bond dispute and a way to do so is for the general intervene in the lawsuit and move to compel arbitration. Sometimes, it is even practical for the general contractor to immediately initiate the arbitration process against the subcontractor, particularly if the general contractor wants to assert a counterclaim, so that the motion to compel is supported by the formal demand for arbitration (and filed with the American Arbitration Association or other body administering the arbitration). I have done this on a number of occasions. Read the court decision
Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

---

Liability Insurer’s Duty To Defend Insured Is Broader Than Its Duty To Indemnify

June 03, 2019 — David Adelstein - Florida Construction Legal Updates
When it comes to liability insurance, an insurer’s duty to defend its insured from a third-party claim is much broader than its duty to indemnify. This broad duty to defend an insured is very important and, as an insured, you need to know this. “A liability insurer’s obligation, with respect to its duty to defend, is not determined by the insured’s actual liability but rather by whether the alleged basis of the action against the insurer falls within the policy’s coverage.” Advanced Systems, Inc. v. Gotham Ins. Co., 44 Fla. L. Weekly D996b (Fla. 3d DCA 2019) (internal quotation omitted). This means: Even where the complaint alleges facts partially within and partially outside the coverage of a policy, the insurer is nonetheless obligated to defend the entire suit, even if the facts later demonstrate that no coverage actually exists. And, the insurer must defend even if the allegations in the complaint are factually incorrect or meritless. As such, an insurer is obligated to defend a claim even if it is uncertain whether coverage exists under the policy. Furthermore, once a court finds that there is a duty to defend, the duty will continue even though it is ultimately determined that the alleged cause of action is groundless and no liability is found within the policy provisions defining coverage. Advanced Systems, supra(internal citations and quotations omitted). Read the court decision
Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

---

Insurer Rejecting Construction Defect Claim Must Share in Defense Costs

March 02, 2020 — Tred R. Eyerly - Insurance Law Hawaii
One insurer, who accepted the tender of defense in a construction defect case, successfully moved for summary judgment against the second insurer, who denied the insured's tender. Interstate Fire & Cas. v. Aspen Ins. UK Ltd., 2019 N.Y. Misc. LEXIS 5800 (N.Y. Sup. Ct. Oct. 25,2019). Standard Waterproofing Corporation was hired by the construction manager, G Builders, to perform waterproofing work as part of condominium conversion project. After the project was completed,the condominium occupants experienced water damage in their units. The Condominium Board retained an engineer who reported numerous issues of water infiltration relating to Standard's work. The Condominium Board filed suit against the construction manager, who filed a third party complaint against Standard. Standard tendered to four different insurers, including plaintiff Interstate and defendant Aspen. Interstate agreed to defend, while Aspen and the other two insurers declined. Aspen argued there were no allegations of an occurrence resulting in property damage during its policy periods. Interstate filed for declaratory relief against Aspen and Standard. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---

California Imposes New Disabled Access Obligations on Commercial Property Owners

October 07, 2016 — Garret Murai – California Construction Law Blog
The following article was written by my colleague David Goldman on the new ADA accessibility legislation which was signed into law this past month by Governor Brown. Since July 1, 2013, California Civil Code section 1938 has required commercial property owners to disclose in every commercial lease whether the property being leased has been inspected by a Certified Access Specialist (“CASp”). A CASp is an individual certified by the State of California as qualified and knowledgeable of construction-related access to public accommodations by persons with disabilities. In addition to disclosing whether or not the property being leased has been CASp inspected, if a CASp inspection has occurred, the commercial lessor must disclose in the lease whether the premises has or has not met all the applicable construction-related accessibility standards established by law. These lease requirements, along with other disability access obligations, were discussed in an earlier article written in 2012. Read the court decision
Read the full story...
Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

---

Safe Harbors- not just for Sailors anymore (or, why advance planning can prevent claims of defective plans & specs) (law note)

August 17, 2011 — Melissa Brumback, Construction Law in North Carolina

Have you ever considered a “Safe Harbor Provision” for your Owner-Architect or Owner-Engineer contract? Maybe it is time that you do.



As you are (probably too well) aware, on every construction project there are changes. Some of these are due to the owner’s change of heart, value engineering concerns, contractor failures, and material substitutions. Some may be because of a design error, omission, or drawing conflict. It happens.



A “Safe Harbor Provision” is a provision that establishes an acceptable percentage of increased construction costs (that is, a percentage of the project’s contingency). The idea is that if the construction changes attributable to the designer is within this percentage, no claim will be made by the Owner for design defects.

Read the full story…



Reprinted courtesy of Melissa Brumback of Ragsdale Liggett PLLC. Ms. Brumback can be contacted at mbrumback@rl-law.com.

Read the court decision
Read the full story...
Reprinted courtesy of

---

Florida Continues Enacting Tort Reforms, This Time Shortening the Statute of Repose

May 01, 2023 — William L. Doerler - The Subrogation Strategist
On April 13, 2023, Florida’s governor, Ron DeSantis, signed into law SB 360 which, among other things, shortens the statute of repose period for improvements to real property. The law also revises the date on which the statute of limitations period runs for these types of damage claims. Florida’s revision of this law provides further evidence of the state’s tort reform efforts. The new law went into effect upon signing and includes the following changes:

• Shortens the statute of repose period set forth in Fla. Stat. § 95.11(3)(c) for actions founded on the design, planning or construction of improvements to real estate from ten (10) to seven (7) years. The statute of repose period runs from the earliest (rather than the latest) of the date: a) the authority having jurisdiction issues a temporary certificate of occupancy; b) a certificate of occupancy; c) a certificate of completion; or d) of abandonment of construction if not completed. Of note, the revised repose period eliminates that date of actual possession by the owner as one of the accrual dates.

Read the court decision
Read the full story...
Reprinted courtesy of William L. Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

---

Dispute Resolution in Your Construction Contract

February 07, 2022 — David Adelstein - Florida Construction Legal Updates
There are important provisions in your construction contract that are geared towards dispute resolution. These are provisions you want to understand – not when a dispute arises, but BEFORE the dispute ever occurs. Many times, dispute resolution provisions are cast aside or not appreciated until a dispute rears its ugly head. This can put you in a reactive stance versus a proactive stance, which you want to be in, because you want to proactively make sure all rights are preserved relative to the dispute. You want to proactively make strategic decisions based on the dispute resolution provisions and process in your contract. Before your contract even gets signed, you may want to negotiate aspects of the dispute resolution process for many reasons. The process could be one-sided. It could be onerous. It could be complex. It could be unfavorable or costly with respect to how you want to progress a dispute. If you appreciate the dispute resolution process from the get-go, you will be in a more effective position to navigate the process while ensuring you are preserving your rights moving forward. Read the court decision
Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

---