FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Construction Defect Notice in the Mailbox? Respond Appropriately

August 04, 2011 — Douglas Reiser, Builders Council Blog

Recently, I have seen a rash of ignored construction defect notices. What is a construction defect notice? It’s a statutorily required notice, sent from a homeowner to a contractor, listing a number of defects found at their property. If you get one, don’t ignore it.



The Revised Code of Washington includes a number of provisions intended for residential construction disputes. Among them is the “Notice to Customer” requirement in RCW 18.27.114, which can preempt a contractor’s lien rights, and the “Notice of Construction Defects” found in RCW 64.50.020.



The Notice of Construction Defects is a standard notice mandated by RCW 64.50, a chapter in the Revised Code of Washington, intended to provide a pre-litigation resolution process for contractors and consumers. The chapter applies only to those losses “caused by a defect in the construction of a residence or in the substantial remodel of a residence.”(See “Action” RCW 64.50.010).



Unfortunately, many contractors will simply ignore these notices or tell the homeowner to make a warranty claim. But, the notice actually provides a contractor with a forty-five (45) day window to alleviate the dispute.



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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com

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Power of Workers Compensation Immunity on Construction Project

November 30, 2017 — David Adelstein - Florida Construction Legal Updates
On construction projects, workers compensation immunity is real and it is powerful. (See also this article.) Workers compensation immunity is why all general contractors should have workers compensation insurance and they should ensure the subcontractors they hire have workers compensation insurance. Workers compensation insurance becomes the exclusive form of liability for an injured worker thereby immunizing an employer (absent an intentional tort, which is very hard to prove as a means to circumvent workers compensation immunity). If a general contractor, with workers compensation insurance, hires a subcontractor without workers compensation insurance, the general contractor’s workers compensation insurance will be responsible in the event an injury occurs to a subcontractor’s employee. The general contractor becomes the statutory employer. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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Policy Renewals: Has Your Insurer Been Naughty or Nice?

December 26, 2022 — Latosha M. Ellis & Jae Lynn Huckaba - Hunton insurance Recovery Blog
A review of insurance policies at renewal should be on every business’s annual task list—and it should be checked twice! Just as your business grows and evolves every year, so should your insurance program. Together with staying proactive and preparing for renewal months before the policy expiration, there are a number of best practices to put your business in the best position to maximize insurance recovery, including shopping around, evaluating changes to your business, engaging the appropriate stakeholders, and performing a policy audit with a coverage attorney. Shop Around An early start to the renewal process allows for thorough decision-making and more time to engage in negotiations with the insurer. Even if the preference is to stay with the existing insurer, shopping around creates some buying power within the negotiation process. Evaluate Operational or Business Practice Changes Risk control and mitigation have a direct impact on your premiums and availability of coverage. Assess any changes in the business’s exposure to risk and make any necessary insurance coverage adjustments. Reprinted courtesy of Latosha M. Ellis, Hunton Andrews Kurth and Jae Lynn Huckaba, Hunton Andrews Kurth Ms. Ellis may be contacted at lellis@HuntonAK.com Ms. Huckaba may be contacted at jhuckaba@HuntonAK.com Read the court decision
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Ohio Supreme Court Case to Decide Whether or Not to Expand Insurance Coverage Under GC’s CGL Insurance Policies

August 14, 2018 — David Suggs – Bert L. Howe & Associates, Inc.
According to W. Matthew Bryant of Saul Ewing Arnstein & Lehr LLP, the Ohio Supreme Court will be deciding whether or not a general contractor's commercial general liability ("CGL") insurance policy may provide coverage for damage caused by a subcontractor's defective construction work. Bryant explained the status quo in Ohio: “Since 2012, Ohio has followed the rule that a CGL policy would not cover damage caused by a contractor to the contractor's own work.” That could change depending on how the Ohio Supreme Court rules in an upcoming case: “The Ohio Supreme Court will decide whether to affirm or overturn Ohio Northern University v. Charles Construction Services, Inc., 77 N.E.3d 538 (Ohio Ct. App. 2017) ("ONU"), an Ohio Court of Appeals decision holding that CGL coverage may exist for property damage caused by faulty work performed by the subcontractor of an insured general contractor.” Read the court decision
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Don’t Miss the 2015 West Coast Casualty Construction Defect Seminar

April 01, 2015 — Beverley BevenFlorez-CDJ STAFF
The 22nd West Coast Casualty (WCC) Construction Defect Seminar returning to the Disneyland Hotel in Anaheim, California is just six weeks away. The annual event begins on Thursday, May 14th, with breakfast and registration starting at 7:30am. Panel discussions on various construction defect related topics begin at 8:30am and continue through the morning and afternoon, followed by a cocktail reception in the early evening. The following day includes break-out sessions with the event concluding in the afternoon. Attendees can enhance their seminar experience with the WCC Construction Defect Seminar Mobile App. The event schedule, speaker information, product information, sponsor details, and interactive floorplan can all be accessed through the app. Furthermore, registered attendees will have access to session presentations. The discounted, early registration ends April 15th, 2015. Download an Invitation and Register for the Event... Read the court decision
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Court Finds No Coverage for Workplace “Prank” With Nail Gun

April 04, 2022 — Craig Rokuson - Traub Lieberman Insurance Law Blog
In the recent case of Metro. Prop. & Cas. Ins. Co. v. Burby, 2022 NY Slip Op 22070, ¶ 1 (Sup. Ct.) Justice Richard M. Platkin of the Supreme Court of Albany County, New York examined a homeowners insurance policy and determined that a duty to defend was triggered in a case seeking recovery for injuries sustained when the insured, Burby allegedly discharged a nail gun in the bathroom of a work facility at which both Burby and the underlying plaintiff worked. Burby pled guilty to assault in the third degree for recklessly causing physical injury. MetLife, Burby’s carrier, disclaimed coverage based on lack of an occurrence, the business activities exclusion and the intentional loss exclusion, which bars coverage for injuries expected or intended by the insured or injuries that are the result of the insured’s intentional and criminal acts or omissions. Justice Platkin initially reviewed the intentional loss exclusion and lack of an occurrence and found that, from a duty to defend perspective, neither provided a dispositive coverage defense. However, the court found that the broadly worded business activities exclusion, which was not the subject of MetLife’s motion and instead was the subject of a cross motion by Burby, applied to bar coverage. In doing so, the court searched the record and granted summary judgment on the issue, despite MetLife not moving for relief under the exclusion. With respect to the expected or intended prong of the intentional loss exclusion, the court found that, even if Burby did intend to pull the trigger of the nail gun, it was not pled in the underlying complaint that the harm that resulted to the plaintiff was expected or intended. As such, the court concluded that MetLife did not prove that there was no possible factual or legal basis upon which it could be found that Burby did not reasonably expect or intend to cause injury to the plaintiff. Read the court decision
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Reprinted courtesy of Craig Rokuson, Traub Lieberman
Mr. Rokuson may be contacted at crokuson@tlsslaw.com

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Understanding Lien Waivers

September 03, 2015 — Beverley BevenFlorez-CDJ STAFF
Zlien on their Construction Payment Blog explained how to read a lien waiver. According to Zlien, “Lien waivers are meant to function as a sort of receipt – if a party is paid a certain amount that party waives his or her right to claim a lien for that amount. “ The blog post breaks down the types of lien waivers, including Conditional Waivers, Unconditional Waivers, Final Payment, and Progress Payment. Once the type of waiver has been identified, Zlien suggests checking the length: “Because the party signing the lien waiver may feel obligated to sign whatever document is presented in order to get paid, unscrupulous or oblivious parties may attempt to use the lien waiver as a legal positioning tool and cram all sorts of other language into the lien waiver that really has no legitimate right or reason to be there.” Zlien recommends that if the document is long or confusing to consult an attorney. Read the court decision
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Last, but NOT Least: Why You Should Take a Closer Look at Your Next Indemnification Clause

March 09, 2020 — Aimee Cook Oleson - Construction & Infrastructure Law Blog
Indemnification clauses appear in nearly every agreement, but they are often overlooked as mere boilerplate provisions after the parties have painstakingly negotiated all of the other terms. It is not uncommon for parties to simply re-use the indemnity language from a prior agreement without considering whether it is a good fit for their current project. This can be a big mistake that may lead to ambiguities and uncertainties if a dispute arises down the road. A standard or canned indemnification clause might work to undo all of the effort that has gone into properly allocating risk. These clauses often contain language such as “notwithstanding anything to the contrary herein,” or the like, which can alter and override other provisions in the agreement. Indemnification clauses are arguably the most important part of an agreement when an accident or dispute arises on a project. Therefore, they deserve an extra look before finalizing an agreement. Here are a few issues to keep in mind when reviewing your next indemnification clause:

• Have you included all necessary parties?
• Any party who could face potential liability should be included as an indemnified party. This often includes entities and persons related to the contracting parties, not just the parties themselves.
• A well drafted indemnity clause will ensure that all parties are liable for the result of their own work and negligence and that of any party that they have hired to work on a project. This includes employees, agents, subcontractors, or any other similar party.

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Reprinted courtesy of Aimee Cook Oleson, Sheppard Mullin
Ms. Oleson may be contacted at AOleson@sheppardmullin.com

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