FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Texas Shortens Its Statute of Repose To 6 Years, With Limitations

October 02, 2023 — Jason Daniel Feld & Roni Most - Kahana Feld
Effective June 9, 2023, Texas has shortened its statute of repose from the existing 10-year statute for builders of new homes to 6-years under specific conditions. The significantly shorter statute of repose bars suits against construction contractors of detached one-and two-family homes and townhomes, filed six years after the substantial completion of such homes, where the contractor also furnished a written warranty in compliance with the statute. Notably, projects including apartments, mixed-use, and hotels are not covered by the new law. It is also noted that a grey area in the law exists as to whether condominiums will be covered by the statute. The statute of repose strictly bars the filing of any action, claim or arbitration demand regardless of when the injury was actually discovered (latent defects) and is separate and distinct from any applicable statute of limitations. The New Texas Statute of Repose Law Under the Texas Civil Practice & Remedies Code § 16.009, persons who construct or repair improvements to real property cannot be sued for defective or unsafe conditions of the property or deficiencies in the construction or repair of the improvement later than 10 years after substantial completion of the improvement, except in certain narrow circumstances. This statute is known as the “statute of repose.” The statute applies not only to suits for construction defects, but also personal injury, wrongful death, contribution, and indemnity. Reprinted courtesy of Jason Daniel Feld, Kahana Feld and Roni Most, Kahana Feld Mr. Feld may be contacted at jfeld@kahanafeld.com Mr. Most may be contacted at rmost@kahanafeld.com Read the court decision
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Discussion of History of Construction Defect Litigation in California

September 10, 2014 — William M. Kaufman – Construction Lawyers Blog
California literally wrote the book on construction defect litigation. Construction defects began to surface after World War II due to cheap track homes being constructed haphazardly on a large scale. Throughout the 1960s, developers began utilizing the services of subcontractors to build massive developments. Rather than having their own employees perform the work, developers began relying more heavily on the specialty subcontractors to perform quality control functions. In 1969, the California Supreme Court expanded liability for developers with respect to residential housing through the concept of strict liability for mass produced homes. Strict liability defendants in construction defect cases may include builders of mass-produced homes, building site developers, component part manufacturers, and material suppliers. Courts have noted that there is little distinction between the “mass production and sale of homes and the mass production and sale of automobiles, and the pertinent overriding policy considerations are the same.” Kriegler v. Eichler Homes, Inc. (1969) 269 Cal. App. 2d 224, 227 (1969). Accordingly, developers of mass-produced tract homes may be held strictly liable whether or not there is privity of contract. Ibid. Courts have held, however, that there is no strict liability against contractors or sub-contractors. See Ranchwood Communities v. Jim Beat Construction (1996) 57 Cal.Rptr.2d 386; La Jolla Village Homeowners’ Assn., Inc. v. Superior Court (1989) 261 Cal.Rptr. 146. Within ten years, attorneys in California were using strict liability theories to seek compensation for homeowners. The initial strict liability lawsuits in California in the 70s and 80s generally applied to condominium projects. The Construction defect “industry” began to take off in the 1980s due to the housing boom and the enforcement of strict liability claims by the courts. Reprinted courtesy of William M. Kaufman, Lockhart Park LP Mr. Kaufman may be contacted at wkaufman@lockhartpark.com, and you may visit the firm's website at www.lockhartpark.com Read the court decision
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Excess-Escape Other Insurance Provision Unenforceable to Avoid Defense Cost Contribution Despite Placement in Policy’s Coverage Grant

April 20, 2016 — Christopher Kendrick & Valerie A. Moore - Haight Brown & Bonesteel, LLP
In Certain Underwriters at Lloyds, London v. Arch Specialty Ins. Co. (No. C072500; filed 4/11/16), a California appeals court found an “other insurance” provision unenforceable to excuse defense contribution between successive primary insurers, regardless of the fact that the limiting language was contained in the policy’s coverage grant. Certain Underwriters and Arch each insured Framecon over successive policy periods. Framecon was sued by a developer in a series of construction defect actions, and tendered to both insurers. Underwriters agreed to defend under a reservation of rights but Arch declined, citing the wording of its insuring agreement, which stated: 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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Fire Tests Inspire More Robust Timber Product Standard

March 22, 2018 — Nadine M. Post– ENR
Based on recent fire test results, mass timber groups have adjusted product certification standards to require the use of cross-laminated timber with structural adhesives tested to demonstrate better fire performance. Read the court decision
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Reprinted courtesy of Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com

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Real Estate & Construction News Round-Up 04/06/22

April 11, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
A growing proptech startup aims to pre-emptively identify needed home repairs, 3D-printed homes could become a workable solution to the housing shortage, and more.

• Concerns about a housing-market crash are growing as the Fed begins to hike interest rates, leaving industry experts to speculate on what’s next for the U.S. housing bubble. (William Edwards, Insider)
• Real-estate sales in Manhattan topped $7 billion in the first quarter of 2022, with the average price of apartments jumping 19% over the previous year. (Robert Frank, CNBC)
• Proptech startup DwellWell claims to have produced the first “check engine light” that can pre-emptively diagnose needed home repairs. (T.P. Yeatts, The Real Deal)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Lost Productivity or Inefficiency Claim Can Be Challenging to Prove

May 02, 2022 — David Adelstein - Florida Construction Legal Updates
One of the most challenging claims to prove is a lost productivity or inefficiency claim. There is an alluring appeal to these claims because there are oftentimes intriguing facts and high damages. But the allure of the presentation of the claim does not compensate for the actual burden of proof in proving the lost productivity or inefficiency claim, which will require an expert. And they really are challenging to prove. Don’t take it from me. A recent Federal Claims Court opinion, Nova Group/Tutor-Saliba v. U.S., 2022 WL 815826, (Fed.Cl. 2022), that I also discussed in the preceding article, exemplifies this point. To determine lost productivity or inefficiency, the claimant’s expert tried three different methodologies. First, the expert looked at industry standard lost productivity factors such as those promulgated by the Mechanical Contractor’s Association. However, the claimant was not a mechanical contractor and there is a bunch of subjectivity involved when using these factors. The expert decided not to use such industry standard factors correctly noting they provide value when you are looking at a potential impact prospectively, but once you incur actual damages and have real data, it is not an accurate measure. 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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Construction Law Client Alert: California Is One Step Closer to Prohibiting Type I Indemnity Agreements In Private Commercial Projects

June 15, 2011 — Haight Brown & Bonesteel, LLP

On June 1, 2011 by majority vote, the California Senate passed Senate Bill 474, which would amend Civil Code section 2782, and add Civil Code section 2782.05. The passage of this new law is a critical development for real estate developers, general contractors and subcontractors because it will affect how these projects are insured and how disputes are resolved.



Civil Code section 2782 was amended in 2007 to prohibit Type I indemnity agreements for residential projects only. Since 2007, various trade associations and labor unions have lobbied to expand those very same restrictions to other projects. These new provisions apply to contracts, entered into after January 1, 2013, that are not for residential projects, and that are not executed by a public entity. The revisions provide that any provision in a contract purporting to indemnify, hold harmless, and defend another for their negligence or other fault is against public policy and void. These provisions cannot be waived.



A provision in a contract requiring additional insured coverage is also void and unenforceable to the extent it would be prohibited under the new law. Moreover, the new law does not apply to wrap-up insurance policies or programs, or a cause of action for breach of contract or warranty that exists independently of the indemnity obligation.



The practical impact of this new law is that greater participation in wrap-up insurance programs will likely result. While many wrap-up programs suffer from problems such as insufficient limits, and disputes about funding the self-insured retention, the incentive for the developer or general contractor to utilize wrap-up insurance will be greater than ever before because they will no longer be able to spread the risk of the litigation to the trades and the trade carriers.



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Reprinted courtesy of Steve Cvitanovic of Haight Brown & Bonesteel, LLP.

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Circuit Court Lacks Appellate Jurisdiction Over Order Compelling Appraisal

August 21, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventh Circuit determined it lacked appellate jurisdiction over an order issued by the district court compelling an appraisal. Breakwater Commons Association, Inc. v. Empire Indem. Ins. Co., 2023 U.S. App. LEXIS 14459 (11th Cir. June 9, 2023). Following Hurricane Irma, Breakwater Commons Association filed a claim with Empire Indemnity Insurance Company for property damage. Empire agreed to cover some of the damage to buildings, but a dispute arose over the amount of loss. Breakwater sought to invoke the appraisal provision in the policy. Empire refused to engage in an appraisal. Breakwater sued, and filed a motion to compel appraisal and to stay the proceedings pending the completion of the appraisal process. 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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