FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Kadeejah Kelly Named to The National Black Lawyers’ “Top 40 Under 40” List

October 17, 2022 — Lewis Brisbois
New York, N.Y. (October 6, 2022) – New York Associate Kadeejah J. Kelly was recently named to The National Black Lawyers (NBL) “Top 40 Under 40” list. The NBL “Top 40 Under 40” recognizes the most talented black attorneys under the age of 40 who have an outstanding reputation among peers, the judiciary and the public. The honorees on this list are nominated from leading lawyers, current members, and Executive Committee members. Ms. Kelly is a member of the General Liability and Professional Liability Practices. She has extensive experience defending owners, contractors, developers and corporations in high exposure construction cases including New York Labor Law matters, premises liability and construction defect claims. She also has experience defending malpractice claims against attorneys, accountants, architects, engineers, funeral home directors and other miscellaneous professionals. Read the court decision
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Reprinted courtesy of Lewis Brisbois

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Factual Issues Prevent Summary Judgment Determination on Coverage for Additional Insured

May 01, 2014 — Tred R. Eyerly – Insurance Law Hawaii
Numerous factual issues prevented the court from deciding at the summary judgment stage whether the additional insured was covered for a personal injury claim that happened on a construction site. Paynes Cranes v. Am States Ins. Co., 2014 U.S. Dist. LEXIS 40485 (E.D. N.Y. March 26, 2014). Intermetal Fabricators, Inc. hired Paynes to provide a crane and driver for the construction of a store. A construction worker was injured while working with the crane. The injured worker sued several defendants, including Paynes. Intermetal had coverage for the project that included additional insureds. The policy provided, “Any person or organization . . . for whom you [Intermetal] are required by written contract, agreement or permit to provide insurance is an insured, subject to the following additional provisions: a. The contract, agreement or permit must be in effect during the policy period . . . and must have been executed prior to the ‘bodily injury,’ ‘property damage,’ 'person and advertising injury.’” 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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Hawaii Supreme Court Finds Subcontractor Has No Duty to Defend Under Indemnity Provision

July 14, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Hawaii Supreme Court vacated the decision of the Intermediate Court of Appeals [see prior post here] and determined that a subcontractor did not have a duty to defend the developer upon tender under an indemnify provision in the parties' contract. Arthur v. State of Hawaii, 2016 Haw. LEXIS 155 (June 27, 2016). A simplified version of the detailed facts and procedural history follows. The case involved the wrongful death of Mona Arthur. Mona typically gardened on the hillside behind her home. She would cross a concrete drainage ditch and climb over a two-foo-high chain length fence to reach the hillside. Mona was found lying in a concrete ditch with severe head injuries, which ultimately led to her death. Her husband and estate sued for her wrongful death. Claims were asserted for negligence in failing to build a fence higher than two feet, which would have prevented Mona from having access to the garden. Defendants included the Department of Hawaiian Home Lands; Kamehameha Investment Corporation ("KIC"), the developer; Design Partners, Inc., the architect; Coastal Construction Company, the general contractor; and Sato and Associates, the civil engineer. The second amended complaint sought punitive damages against KIC. 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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OPINION: Stop Requiring Exhibit Lists!

September 18, 2023 — Todd Heffner - The Dispute Resolver
You are conducting the final hearing of a high-dollar construction arbitration. Opposing counsel hands you the next document that counsel plans to use in questioning the witness on the stand. You notice that the document is bates stamped but has no exhibit number. So, you quickly consult opposing counsel’s exhibit list and – gasp – you find that the document is not on the list. What do you do? Do you object? Assuming this is not your first construction arbitration hearing, you do not object. Why? Because your objection would be futile. Construction arbitrators simply do not exclude evidence on the basis that it does not appear on an exhibit list. (Evidence not produced in discovery or otherwise previously provided might be a different case.) In an informal poll of a dozen construction lawyers conducted by this author, not one reported evidence being excluded solely because it did not appear on an exhibit list. This remained true even when the applicable case management order purported to prohibit the introduction of evidence not on an exhibit list. Thus, to be used in an arbitration hearing, documents must appear on an exhibit list, unless they don’t, in which case you can use them anyway. So far, so pointless. Read the court decision
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Reprinted courtesy of Todd Heffner, Troutman Pepper
Mr. Heffner may be contacted at todd.heffner@troutman.com

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Where-Forum Art Thou? Is the Chosen Forum Akin to No Forum at All?

May 30, 2022 — William Doerler - The Subrogation Strategist
Many courts enforce forum selection clauses in contracts between parties. In W. Bay Plaza Condo. Ass’n v. Sika Corp., No. 3D21-1834, 2022 Fla. App. LEXIS 1637 (W. Bay Plaza), the Court of Appeal of Florida, Third District (Court of Appeal) answered the question of whether a mandatory forum selection clause in a manufacturer’s warranty was enforceable as to a condominium association, who was a non-signatory. The trial court enforced the forum selection clause – calling for litigation in New Jersey rather than Florida – and the Court of Appeal affirmed the ruling. As stated in W. Bay Plaza, in late 2013 and early 2014, West Bay Plaza Condominium Association (W.B. Plaza Condo. Ass’n) contracted with Built Right Installers International Corporation, R.J. Miranda Consultants, Inc. and UCI Engineering Inc. (collectively, the Construction Defendants) to have repairs done to the exterior of the property. In 2016, Sika Corporation (Sika), a New Jersey corporation, gave a five-year warranty to W.B. Plaza Condo. Ass’n for three sealant products used to repair the garage at the property. In 2019, W.B. Plaza Condo. Ass’n sued the Construction Defendants for breach of contract and professional negligence. Subsequently, W.B. Plaza Condo. Ass’n amended its complaint and filed a claim against Sika, alleging that Sika breached its warranty because its products failed to provide a watertight barrier. Sika filed a motion to dismiss the action, alleging that Florida was an improper venue because its’ warranty contained a mandatory forum selection clause. W.B. Plaza Condo. Ass’n argued that it was not bound by the forum selection clause because it was a non-signatory to the warranty and, even if it was bound by the clause, there were compelling reasons not to enforce it. Read the court decision
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Reprinted courtesy of William Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

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Party Cannot Skirt Out of the Very Fraud It Perpetrates

January 09, 2023 — David Adelstein - Florida Construction Legal Updates
An interesting case came out of Florida’s Fourth District Court of Appeal that touches upon two important points. First, the independent tort doctrine does not apply when there is not a contract between the parties. Second, an officer cannot escape fraud simply by claiming his or her actions were done as an officer of the company when he or she actively participated in the fraud. Both of these points are best explained by initially going into the facts of this case. As you will see, the Court’s rationale relates to the premise that a party should not be able to skirt out of the very fraud it perpetrates. Factual Background Costa Investors, LLC v. Liberty Grande, LLC, 48 Fla.L.Weekly D7b (Fla. 4th DCA 2022) involved the ultimate development and construction of four adjacent properties into the Costa Hollywood Hotel. The properties were purchased by a company called Liberty Grande. Its president / manager was also the president of Liberty Grande’s wholly owned subsidiary called Costa Hollywood Property. Liberty Grande transferred the properties to Costa Hollywood Property and the deed was signed by the president / manager. 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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No Coverage Based Upon Your Prior Work Exclusion

October 01, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The California Court of Appeal affirmed the trial court's determination of no coverage for construction defects based upon the policy's prior work exclusion. Yu v. Landmark Am. Ins. Co., 2014 Cal. App. Unpub. LEXIS 5966 (Cal. Ct. App. Aug. 22, 2014). Plaintiff was the owner and developer of a hotel. She contracted with ATMI Design Build to act as general contractor to construct the hotel. C&A Framing Company was a subcontractor to provide rough framing for the project. In May 2003, ATMI fired C&A before it had completed all the work required by the subcontract. After May 2003, C&A never returned to the construction site. Notice of Completion for the project was recorded April 15, 2004. In September 2004, Landmark issued to C&A a CGL policy for the period September 18, 2004 to September 18, 2005. The policy was later cancelled, effective January 14, 2005. The policy contained an endorsement entitled, "Exclusion - Your Prior Work." The exclusion barred coverage for "'property damage' arising out of 'your work' prior to 9/18/04." 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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Antitrust Walker Process Claims Not Covered Under Personal Injury Coverage for Malicious Prosecution

May 18, 2020 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Travelers Property Casualty Co. of America v. KLA-Tencor Corp. (No. H044890; filed 1/16/20, ord. pub. 2/13/20), a California appeals court ruled that commercial general liability insurance for personal and advertising injury, defined to include malicious prosecution, does not cover a Walker Process antitrust cause of action under the Sherman Act and the Clayton Act for using a fraudulently procured patent to attempt to monopolize the market. Travelers insured KLA under commercial liability policies with coverage for personal and advertising injury liability, which was defined as “injury, other than ‘advertising injury’, caused by. . . (2) Malicious prosecution.” Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Reprinted courtesy of

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