FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Report to Congress Calls for Framework to Cut Post-Quake Recovery Time

February 01, 2021 — Bruce Buckley - Engineering News-Record
Engineers and government agencies along with model building code and standard developers should work together to create a national framework more focused on earthquake resilience and post-quake recovery time, according to a report delivered to Congress last week. While current seismic codes address life safety, the report says stakeholders should also consider re-occupancy and functional recovery time, taking into account the potential impacts to a community as a whole. Reprinted courtesy of Bruce Buckley, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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Court Grants Partial Summary Judgment on Conversion Claim Against Insurer

February 01, 2023 — Tred R. Eyerly - Insurance Law Hawaii
Although the court was incredulous that the parties were disputing the possession of a gate opener allegedly damaged in a lightning strike, it granted the insured's motion for partial summary judgment finding the insurer had converted the gate opener. Privratsky v. Liberty Mut. Fire Ins Co., 2022 U.S. Dist. LEXIS 196002 (D. Haw. Oct. 27, 2022). (Full disclosure, our office is co-counsel for the insured). Mr. Privratsky alleged his home on Maui was struck by lightning which caused an electrical surge. The home and personal property were damaged. The alleged cost of repair work at one point was as much as $325,000. A claim was submitted under a homeowner's policy issued by Liberty Mutual. Liberty paid for only some of the damage. Privratsky filed suit alleging three causes of action for: (1) declaratory judgment that the losses were covered by the policy issued by Liberty; (2) bad faith; and (3) conversion of personal property, namely, the damaged gate operator. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Can a Lease Force a Tenant's Insurer to Defend the Landlord?

October 10, 2022 — Kerianne Kane Luckett - Saxe Doernberger & Vita, P.C.
Can an indemnification clause in a commercial lease obligate a tenant’s insurer to defend a landlord? Recently, the United States District Court for the Northern District of New York said, “Yes!” On August 9, 2022, the district court issued a decision in ConMed Corp. vs. Federal Insurance Company, holding that the indemnification clause in a policyholder’s lease triggered the insurer’s duty to defend the landlord in an action arising out of the tenant’s negligence. Facts of the Case ConMed is a medical technology company that leases warehouse space in Georgia from Breit Industrial Canyon (“the Landlord”) to sterilize its medical equipment. ConMed’s employees filed suit against ConMed and a contractor that performed the sterilization, alleging injuries caused by exposure to excessive amounts of chemicals used in the sterilization process (the “ConMed Action”). Thereafter, ConMed’s employees filed a separate lawsuit against the Landlord, alleging that the Landlord permitted storage of unsafe levels of the chemicals at the warehouse without adequate ventilation (the “Landlord Action”). The lease agreement required ConMed to indemnify the Landlord “except in the event of, and to the extent of, Landlord’s negligence or willful misconduct.” Read the court decision
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Reprinted courtesy of Kerianne Kane Luckett, Saxe Doernberger & Vita, P.C.
Ms. Luckett may be contacted at KKane@sdvlaw.com

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Be Wary of Construction Defects when Joining a Community Association

February 07, 2013 — CDJ STAFF
There are some benefits to living in small developments with correspondingly small community association. Marilyn Briscoe told the Chicago Tribune that in her 34-unit town home association, "people kind of look out for each other here." But the article also cautions to not only meet the other owners, but that you should "know the developer" and "be leery if you discover litigation for construction defects." Ryan Shpritz, an association attorney said that "you don't want to start out your new association by spending money on lawyer fees or repairing defects." Whether the development is large or small, "having construction defect litigation going on will have an impact on salability." Read the court decision
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Structural Failure of Precast-Concrete Span Sets Back Sydney Metro Job

February 23, 2017 — Chris Webb - Engineering News-Record
A key component of Australia’s biggest public transport infrastructure project—Sydney’s $6.3-billion Metro North West—is the subject of a critical and detailed technical report describing how an elevated viaduct span failed at a stitch joint between two precast segments during construction last September. Project officials say the affected span, which did not suffer a progressive collapse, has since been removed and its replacement fast-tracked to avoid further delays. Little additional detail was provided. Read the court decision
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Reprinted courtesy of Chris Webb, ENR
ENR may be contacted at ENR.com@bnpmedia.com

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Construction Defects as Occurrences, Better Decided in Law than in Courts

December 09, 2011 — CDJ STAFF

Construction defect claims are now occurrences for insurance purposes in four states, Arkansas, Colorado, Hawaii, and South Carolina, yet there are still frustrations for commercial general liability policyholders. Business Insurance describes court decisions on whether construction defect claims are covered as “incongruous,” and this drives up coverage and litigation costs. Construction firms often find they are defending themselves on two fronts, both the construction defect claim and also whether their insurance covers it.

Frank Armstrong, the Senior Vice President and National Director of Construction Claims for Willis North America says that the problem starts with the word “occurrence,” as various state courts have different interpretations of the word. “Certain pieces of it don’t fit well, at lest according to some courts in the country, with coverage for construction defect risks.”

Another insurance executive, Julian Ehlich, the Senior Vice President of Claims for Aon Risk Solutions’ construction services group notes that “jurisdictions differ, so policyholders don’t know what they’re going to get.”

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Fifth Circuit Holds Insurer Owes Duty to Defend Latent Condition Claim That Caused Fire Damage to Property Years After Construction Work

October 05, 2020 — Jeremy S. Macklin - Traub Lieberman Insurance Law Blog
Most general liability policies only provide coverage for “property damage” that occurs during the policy period. Thus, when analyzing coverage for a construction defect claim, it is important to ascertain the date on which damage occurred. Of course, the plaintiffs’ bar crafts pleadings to be purposefully vague as to the date (or period) of damage to property. A recent Fifth Circuit decision applying Texas law addresses this coverage issue in the context of allegations of a condition created by an insured during the policy period that caused damage after the policy expired. In Gonzalez v. Mid-Continent Cas. Co., 969 F.3d 554 (5th Cir. 2020), Gilbert Gonzales (the insured) was a siding contractor. In 2013, the underlying plaintiff hired Gonzales to install new siding on his house. In 2016, the underlying plaintiff’s house was damaged in a fire. The underlying plaintiff sued Gilbert in Texas state court alleging that when Gonzalez installed the siding in 2013, he hammered nails through electrical wiring and created a dangerous condition that caused a fire three years later in 2016. At the time Gilbert performed construction work, he was insured by Mid-Continent Casualty Company. Mid-Continent disclaimed coverage to Gonzales on the basis that the complaint unequivocally alleged that property was damaged in 2016 and there were no allegations that property damage occurred prior to 2016 or was continuing in nature. Read the court decision
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Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman
Mr. Macklin may be contacted at jmacklin@tlsslaw.com

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Court Finds That SIR Requirements are Not Incorporated into High Level Excess Policies and That Excess Insurers’ Payment of Defense Costs is Not Conditioned on Actual Liability

April 22, 2019 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Deere & Co. v. Allstate Ins. Co. (No. A145170, filed 2/25/19), a California appeals court held that the insured was not required to pay additional self-insured retentions (SIRs) in order to trigger higher level excess coverage because the retained limits applicable to the first layer of coverage did not also apply to the higher-layer excess policies. In Deere, the insured was sued for injuries from alleged exposure to asbestos-containing assemblies used in Deere machines. In a declaratory relief action against its umbrella and excess insurers, the case was tried on: (1) whether the higher-layer excess policies were triggered once the first-layer excess policy limits, which were subject to an SIR paid by Deere, had been exhausted; and (2) whether the insurers’ indemnity obligation extended to Deere’s defense costs incurred in asbestos claims that had been dismissed. The trial court found in favor of the insurers, concluding that the retained limits in the first layer of coverage also applied to the higher-layer excess, which was not triggered until Deere paid additional SIRs. The court also concluded that the insurers were not obligated to pay defense costs when underlying cases were dismissed without payment to a claimant either by judgment or settlement. Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Read the court decision
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