FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Efficient Proximate Cause Doctrine Bars Coverage for Collapse of Building

July 31, 2013 — Tred Eyerly, Insurance Law Hawaii
The court rejected the insured's argument that there was coverage for the collapse of a building caused by water leakage (a covered peril) and landslide (an uncovered peril). Stor/Gard, Inc. v. Strathmore Ins. Co., 2013 U.S. LEXIS App. 11015 (1st Cir. May 31, 2013). A severe rain storm caused soil to slide down a hill and over a retaining wall, thereby damaging a building owned by the insured. Investigators hired by Strathmore Insurance Company determined that rain had soaked into the soil, causing the landslide. Although the investigators found some water leakage, they determined the leakage was not a cause or contributing factor, and was negligible compared to the rain amount. The insured's policy with Strathmore was an all-risk policy. Loss caused by a landslide was excluded. Further, loss caused by collapse was excluded from coverage except as set forth in the policy's "additional coverage for collapse" section. This section provided coverage for a collapse caused by water damage or a leakage of water. Another exclusion barred coverage for loss caused by weather conditions. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

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What Every Project Participant Needs to Know About Delay Claims

August 05, 2024 — Andrew G. Vicknair - The Dispute Resolver
A “delay” on a construction project is defined as the stretching out of the time for completion of certain key milestone scopes of work which can impact the completion date of an entire project, due to some circumstances or events that were not reasonably anticipated when the project began. 2 Construction Law ¶ 6.01 (Matthew Bender, 2024). While delays can be caused by any number of events, the most common are defective plans and specifications; design changes; severe weather and other, similar unforeseeable events; unforeseen or differing site conditions; unavailability of materials or labor; labor inefficiencies or stoppages; contractor negligence; and owner influences, including construction changes or outright interference by the owner or its agents. If the project schedule is not recovered following a delay, then the project schedule will likely be extended, resulting in an increase in the contractor’s costs of performance. A contractor that has experienced a delay on a project can take certain actions to pursue recovery of any damages the contractor may have incurred. However, to do so it is important to understand the different types of delays and the methods for establishing the delays. I. Types of Delays Delays may be categorized as (1) critical versus non-critical delays, (2) excusable versus non-excusable delays, and (3) compensable versus non-compensable delays. A critical delay is a delay that affects the project completion date and delays the entire project. In essence, a critical delay is one that will extend the critical path of a project. A non-critical delay is a delay that has no effect on the project’s critical path. Courts have recognized that delays to work not on the critical path will generally not delay the completion of a project. G.M. Shupe, Inc. v U.S., 5 Cl. Ct. 662, 728 (1984). Such a non-critical delay may affect the completion of certain activities, but does not affect the completion date of the entire project. In order for a delay to provide the basis for a claim for additional time or money, the delay must impact critical path activities on the project schedule. Read the court decision
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Reprinted courtesy of Andrew G. Vicknair, D'Arcy Vicknair, LLC
Mr. Vicknair may be contacted at agv@darcyvicknair.com

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No Conflict in Successive Representation of a Closely-Held Company and Its Insiders Where Insiders Already Possess Company’s Confidential Information

August 02, 2017 — Renata L. Hoddinott, David W. Evans, & Howard M. Garfield - Haight Brown & Bonesteel LLP
In Beachcomber Management Crystal Cove, LLC v. Superior Court (Salisbury) (No. G054078, filed June 28, 2017; pub. and mod. order July 28, 2017), the Fourth Appellate District granted a writ of mandate vacating a trial court’s order disqualifying defendants’ counsel. In Beachcomber, plaintiffs filed a shareholder derivative action against defendants Beachcomber Management and Douglas Cavanaugh (collectively, “defendants”) alleging defendants abused their position and mismanaged nominal defendant and similarly named Beachcomber at Crystal Cove (“Beachcomber”). Between 2009 and 2011, defendants and Beachcomber had each hired Kohut & Kohut LLP (“Kohut”) to represent them on at least four different occasions. In the underlying action, defendants hired Kohut again to represent them, while Beachcomber hired another law firm to represent it. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Renata L. Hoddinott, David W. Evans and Howard M. Garfield Read the court decision
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Breaking Down Homeowners Association Laws In California

April 03, 2019 — Lauren Hickey - Bremer Whyte Brown & O'Meara LLP
Purpose of HOAs Property ownership often combines elements of individual and common ownership interests. For example, a property owner may individually own his or her living quarters, but also own a common interest in amenities that are considered too expensive for a single homeowner to purchase individually (such as a pool, gym, or trash collection service). Properties with such elements usually take the form of apartments, condominiums, planned developments, or stock cooperatives (together known as “common interest developments” or “CIDs”). Whenever a CID is built, California law requires the developer to organize a homeowner association (or “HOA), which can take several different names, including “community association”. Initially, the developer relies on the HOA to market the development to prospective buyers. Once each unit in the development is sold, management of the HOA is passed to a board of directors elected by the homeowners. At that point, the primary purpose of the HOA shifts to maintenance of common amenities and enforcement of community standards. Dues/Assessments HOAs generally charge each homeowner monthly or annual dues to cover the cost of their services. HOAs may also charge special assessments to cover large, abnormal expenses, such as the cost of upgrades or improvements. The amount charged in dues and assessments is established by the HOA’s board of directors, within the limits set by the HOA’s governing documents and California Civil Code section 1366. Section 1366 provides that HOA dues may not be increased by more than 20 percent of the amount set in the previous year, and the total amount of any special assessments charged in a given year generally may not exceed 5 percent of the HOA’s budgeted expenses. Read the court decision
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Reprinted courtesy of Lauren Hickey, Bremer Whyte Brown & O'Meara LLP

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Chicago Makes First Major Update to City's Building Code in 70 Years

August 06, 2019 — Engineering News-Record
The City Council recently voted to adopt a major update to the Chicago Building Code, its first in 70 years, that will better align it with the International Code Council’s International Building Code. Mayor Rahm Emanuel (D) said the new code will spur and enhance building projects by adding more flexibility and options for construction materials. Engineering News-Record Read the full story... Read the court decision
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Sixth Circuit Lifts Stay on OSHA’s COVID-19 Temporary Emergency Standards. Supreme Court to Review

January 10, 2022 — Garret Murai - California Construction Law Blog
As we round out the year, here’s a bit of news, with more likely to come, regarding the U.S. Department of Occupational Safety and Health Administration’s (OSHA) COVID-19 Temporary Emergency Standards (ETS). As we wrote earlier, on November 4, 2021, OSHA issued its ETS which applies to private employers with 100 or more employees (Covered Employers). Among other things, the ETS requires Covered Employers to have a COVID-19 vaccination policy requiring all employees to be fully vaccinated with certain exceptions, to provide for weekly testing of non-fully vaccinated employees, and to require face coverings. Under the ETS, Covered Employers were required to comply with the ETS other than the testing requirements by December 6, 2021 and to comply with the testing requirements beginning January 4, 2022. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Dreyer v. Am. Natl. Prop. & Cas. Co. Or: Do Not Enter into Nunn-Agreements for Injuries that Occurred After Expiration of the Subject Insurance Policy

January 20, 2020 — Jean Meyer - Colorado Construction Litigation
While Nunn-Agreements[1] may be appealing for both plaintiffs and defendants where an insurer unreasonably fails to defend a lawsuit, a recent opinion from The Honorable Marcia Krieger in the United States District Court of Colorado[2] (“Opinion”) demonstrates the importance of first confirming that there exists a viable insurance claim before proceeding with such a Nunn- Agreement. The facts giving rise to the Opinion were as follows. In March 2015, a Homeowner couple (the “Homeowners”) suffered damages to their home resulting from a brushfire. Fortunately, the Homeowners were insured, they submitted their claim to their homeowners’ insurance carrier which was in effect at the time of the brushfire (the “Insurance Carrier”), and the Insurance Carrier paid the claim. Ostensibly as part of the Homeowners’ remediation efforts to their home they removed a large bush which left a hole in the ground. After paying the claim, in August 2015 the Insurance Carrier cancelled or elected not to renew the Homeowners’ policy. In October 2015, a repairman working on the Home (the “Repairman”) was injured after his ladder fell over allegedly because of the hole in the ground caused by the bush that had been removed. As a result of injuries caused by the fall from the ladder, the Repairman brought suit against the Homeowners. In response to the Repairman’s claim, the Homeowners again tendered to their Insurance Carrier. This time, however, the Insurance Carrier denied coverage on the basis that the Repairman’s injuries occurred after the expiration of the relevant policy. Without insurance coverage, the Homeowner’s entered into a Nunn-Agreement with the Repairman, conceding liability, and assigning any claims they might have had against the Insurance Carrier in lieu of execution of any judgment against the Homeowners. Read the court decision
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Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Meyer may be contacted at meyer@hhmrlaw.com

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Storm Breaches California River's Levee, Thousands Evacuate

March 20, 2023 — Associated Press - Engineering News-Record
WATSONVILLE, Calif. (AP) — A Northern California agricultural community famous for its strawberry crop was forced to evacuate early Saturday after the Pajaro River’s levee was breached by flooding from a new atmospheric river that pummeled the state. Across the Central Coast's Monterey County , more than 8,500 people were under evacuation orders and warnings Saturday, including roughly 1,700 residents — many of them Latino farmworkers — from the unincorporated community of Pajaro. Reprinted courtesy of Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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