FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

A Court-Side Seat: Permit Shields, Hurricane Harvey and the Decriminalization of “Incidental Taking”

May 31, 2021 — Anthony B. Cavender - Gravel2Gavel
This is a brief review of some of the significant environmental (and administrative law decisions) released the past few weeks. THE U.S. SUPREME COURT On April 22, 2021, the Court decided two important administrative law cases: Carr, et al. v. Saul and AMG Capital Management v. Federal Trade Commission. Carr, et al. v. Saul In this case, the constitutionality of Social Security Administrative Law Judges (ALJs) hearing disability claims disputes was at issue. More precisely, were these ALJs selected in conformance with the Appointments Clause of the Constitution? A similar issue was litigated in the case of Lucia v. Securities and Exchange Commission. There, the Court held that many of the agency’s ALJs were not selected in conformance with the Appointment’s Clause. Here, the Court held that this issue could be decided by the courts without compelling the litigants to first exhaust their administrative remedies. Thousands of ALJs are employed by the federal government, and it may take some time to resolve this question for every agency. AMG Capital Management v. Federal Trade Commission In this case, the court held, unanimously, that the Commission does not presently have the authority to employ such equitable remedies as restitution or disgorgement. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Insolvency of Primary Carrier Does Not Invoke Excess Coverage

January 06, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The insured failed to present any argument for excess coverage after the insolvency of the primary carrier. Canal Ins. Co. v. Montello, Inc., 2015 U.S. App. LEXIS 20625 (10th Cir. Nov. 27, 2015). Montello distributed an oil drill containing asbestos between 1966 and 1985. Montello was sued by individuals claiming injuries due to exposure to the asbestos. Montello was insured by The Home Insurance Company from March 1975 to March 1984. In 2003, Home was declared insolvent. Home did not pay any claims for bodily injury on Montello's behalf. 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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Be Strategic When Suing a Manufacturer Under a Warranty with an Arbitration Provision

October 02, 2023 — David Adelstein - Florida Construction Legal Updates
I’ve said this before, and I’ll say it again: arbitration is a creature of contract. If you don’t want to arbitrate, don’t agree to an arbitration provision as the means to resolve your dispute. Now, with that said, there are times you may not have a choice. An arbitration provision in a warranty from a manufacturer of a product is an example. If you are procuring the product, you are agreeing to the terms of the express warranty. Manufacturers are not negotiating their product warranty on a case-by-case basis considering they are not typically the ones selling the product directly to the end user. This does not mean that is a bad thing. It just means if you elect to sue the manufacturer directly for an alleged product defect or under the terms of the warranty, you should read the warranty and consider the strategic aspect that suing the manufacturer will have on your case. In SICIS North America, Inc. v Sadie’s Hideaway, LLC, 48 Fla.L.Weekly D1581c (Fla. 1st DCA 2023), an owner elected to sue a tile manufacturer, a general contractor, the architect, and a window and door company. One of the arguments the owner raised was that exterior tiles installed were defective. The tiles were procured by the general contractor. The owner sued the general contractor under various theories and sued the tile manufacturer for breaches of warranty and negligence. The general contractor asserted a crossclaim for indemnification against the tile manufacturer. The tile manufacturer moved to compel the owner’s claim and the general contractor’s crossclaim to arbitration since there was an arbitration provision in the warranty documents and the general contractor’s indemnification claim arose from that transaction. The trial court denied the motion to compel arbitration. On appeal, the appellate court reversed:

First, because [the owner] was suing [the tile manufacturer] based upon the written warranty, it was bound by the arbitration provision contained in [the general contractor’s] agreement with [the tile manufacturer]. As the Florida Supreme Court has explained, “[W]hen a plaintiff sues under a contract to which the plaintiff is not a party . . . we will ordinarily enforce an arbitration clause contained in that contract, absent some other valid defense. . . .” . [The owner] had no valid defense against arbitration, a fact which it apparently realized when it voluntarily dismissed its express warranty claim after the notice of appeal and initial brief were filed.

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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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New York Court Finds No Coverage Owed for Asbestos Losses Because Insured Failed to Prove Material Terms

February 15, 2021 — Gregory S. Capps & Marianne E. Bradley - White and Williams LLP
In the long-tail insurance context, it is not unusual to have issues arise addressing “lost” or “missing” policies. In an opinion issued on January 22, 2021, a New York court ruled that an insurer did not owe coverage to its insured for underlying asbestos claims because the insured had failed to establish the material terms of a “lost” policy under which it sought coverage for the underlying claims. The lawsuit, Cosmopolitan Shipping Company, Inc. v. Continental Insurance Company,[1] arose out of a coverage dispute between Plaintiff Cosmopolitan Shipping Co., Inc. (Cosmopolitan) and its insurance carrier, Continental Insurance Company (CIC), in connection with bodily injury claims arising out of asbestos exposure. The case provides a good analysis of what an insured must do to establish coverage under a “lost” or “missing” policy. During and after World War II, Cosmopolitan chartered and operated a number of shipping vessels on behalf of United Nations Relief and Rehabilitation Administration (UNRRA). In the 1980s, seamen who had worked on board Cosmopolitan’s vessels between 1946 and 1948 filed lawsuits against Cosmopolitan seeking damages for injuries arising out of alleged exposure to asbestos on Cosmopolitan’s vessels. Cosmopolitan sought coverage from CIC for the claims, alleging that CIC had insured Cosmopolitan’s vessels during the relevant time period under a protection and indemnity policy issued to the UNRAA (the P&I Policy). Reprinted courtesy of Gregory S. Capps, White and Williams LLP and Marianne E. Bradley, White and Williams LLP Mr. Capps may be contacted at cappsg@whiteandwilliams.com Ms. Bradley may be contacted at bradleym@whiteandwilliams.com Read the court decision
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Reprinted courtesy of

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Duty to Defend Affirmed in Connecticut Construction Defect Case

August 13, 2014 — Beverley BevenFlorez-CDJ STAFF
According to an article by Matthew Vocci of Ober | Kaler in JD Supra, the Supreme Court of Conneticut affirmed in Travelers Cas. & Sur. Co. v. Netherlands Ins. “that allegations of years-long, continuing and progressive water intrusion caused by alleged construction defects triggered a duty to defend under CGL coverage language.” Vocci stated that the result demonstrated “the importance of the wording of the allegations relating to construction defects, resulting damage and when the parties were on notice of the issues. For property owners, contractors/builders/developers and their insurers, the allegations in the complaint guide what can be a difficult and contentious determination regarding whether the insured is provided with a defense from its CGL carrier.” Read the court decision
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Reprinted courtesy of

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Hunton Andrews Kurth’s Insurance Recovery Practice, Partners Larry Bracken and Mike Levine Receive Band 1 Honors from Chambers USA in Georgia

June 14, 2021 — Walter J. Andrews - Hunton Insurance Recovery Blog
The 2021 Chambers and Partners rankings for Georgia insurance recovery practices and lawyers are out and Hunton Andrews Kurth has received top honors. The rankings include Hunton Andrews Kurth’s Insurance Recovery practice and partners Lawrence J. Bracken II and Michael S. Levine, with all receiving Band 1 honors – the organization’s top-tier ranking. “The top-level ranking of our practice in Georgia, and the work that Larry and Mike bring to our clients in Georgia, specifically, is emblematic of the work our team is doing nationwide,” said Insurance Recovery Practice Head, Walter J. Andrews. “The Firm and I could not be more proud,” he added. Chambers and Partners is an independent research company operating across more than 200 jurisdictions delivering detailed rankings and insight into the world’s leading lawyers. Its rankings are viewed as one of the most credible and reliable industry benchmarks. Read the court decision
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Reprinted courtesy of Walter J. Andrews, Hunton Andrews Kurth
Mr. Andrews may be contacted at wandrews@HuntonAK.com

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Connecticut District Court to Review Proposed Class Action in Defective Concrete Suit

July 13, 2017 — Tiffany Casanova - Saxe Doernberger & Vita, P.C.
Thousands of Connecticut homeowners have fallen victim to a defective concrete epidemic. Over the last thirty years, the foundation in many homes, particularly in the Northeast region of the state, was built with a concrete aggregate that contained the mineral pyrrhotite. When exposed to the elements, including water and air, pyrrhotite oxidizes, resulting in cracking and disintegration over time. For Connecticut homeowners, this has resulted in disaster, both financially and to the foundations of their homes. Previously, many homeowners insurance policies provided coverage for a “collapse” caused by the “use of defective material . . . in construction, remodeling or renovation.” As the pyrrhotite epidemic became more prevalent, insurers altered the coverage afforded for a “collapse” in several ways that potentially minimized or eliminated coverage for these types of claims. Primarily, coverage for a “collapse” is now restricted to collapses that are “abrupt,” and coverage is excluded for buildings in danger of falling down or those that are still standing, even if evidence of cracking or settling is demonstrated. The insurers did not notify homeowners of the change. Thus, homeowners who renewed policies were not informed of a coverage reduction nor were they provided with a corresponding reduction in the amount of premium. Read the court decision
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Reprinted courtesy of Tiffany Casanova, Saxe Doernberger & Vita, P.C.
Ms. Casanova may be contacted at tlc@sdvlaw.com

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Proving Contractor Licensure in California. The Tribe Has Spoken

October 21, 2015 — Garret Murai – California Construction Law Blog
As I mentioned in an earlier post, in California you must “prove” you’re a licensed contractor in a construction case. But in whose hands are you entitled to place your fate – the judge or the jury? Well, the tribe has spoken. Jeff Tracy, Inc. v. City of Pico Rivera In Jeff Tracy, Inc. v. City of Pico Rivera, Case Nos. B258563 and B258648, California Court of Appeals for the Second District (September 15, 2015), general contractor Jeff Tracy, Inc. doing business as Land Forms Construction (“Land Forms”) was walloped with a nearly $5.5 million judgment for being improperly licensed on a park project owned by the City of Pico Rivera (“City”). The judgment followed a bench trial over Land Form’s objection that it was entitled to a jury trial. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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