FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Construction Litigation Roundup: “Stuck on You”

March 04, 2024 — Daniel Lund III - Lexology
A “contract of adhesion” is referred to as a standard form contract – usually preprinted – “prepared by a party of superior bargaining power for adherence or rejection of the weaker party.” Yet, it is not the nature of the contract alone which determines its enforceability, but, instead, “whether a party truly consented to all of the printed terms.” A Louisiana plaintiff fighting a forum selection clause in a construction contract sought to have the clause nullified, urging that the clause was “buried” in the agreement and in small font, arguing also that the contractor had “superior bargaining position at the time of entering into the contract… because [plaintiff] needed to repair the hurricane damage” to his home as soon as possible. In response, the contractor urged that the contract was not executed under rush conditions, and that, in any event, the contract was only two pages long – and the forum selection clause was not hidden and was in the same font as all of the other provisions in the contract. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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New York’s Second Department Holds That Carrier Must Pay Judgment Obtained by Plaintiff as Carrier Did Not Meet Burden to Prove Willful Non-Cooperation

November 23, 2020 — Craig Rokuson - Traub Lieberman
In the recent case of DeLuca v. RLI Insurance Company, 2020 WL 5931054 (October 7, 2020), the Supreme Court, Appellate Division, Second Department held that RLI had a duty to pay a judgment obtained by an underlying plaintiff against RLI’s insured, MLSC. The underlying plaintiff brought the action directly against the carrier after obtaining a judgment against MLSC, and when the judgment remained unsatisfied, serving RLI with the judgment. As an initial matter, the court found that the direct action by the plaintiff was proper under New York Insurance Law 3420(a), which allows for an injured plaintiff to maintain a direct action against a carrier if a judgment against that carrier’s insured remains unsatisfied for a period of 30 days and the carrier is served with that judgment. In that event, the plaintiff steps into the shoes of the insured and is entitled to the rights of the insured (and is also subject to the carrier’s coverage defenses). Reprinted courtesy of Craig Rokuson, Traub Lieberman Mr. Rokuson may be contacted at crokuson@tlsslaw.com Read the full story... Read the court decision
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New Addition To New Jersey Court Rules Impacts More Than Trial Practice

November 16, 2020 — Thomas Regan & Karley Kamaris - Lewis Brisbois Newsroom
On September 1, 2020, New Jersey adopted a brand-new rule of procedure, Rule 4:25-8, which properly defines motions in limine. On its face, the new rule prohibits, broadly, filing motions in limine that may have a dispositive effect on the case. Most notably, the rule expressly eliminates the ability to move, on motion in limine, to bar expert testimony in matters in which such experts are required to sustain a party’s burden of proof. This effectively makes the summary judgment phase of litigation the last chance to bar experts from a jury trial or take any other dispositive action The new rule comes at a time in which the evidentiary standard for experts is shifting in New Jersey. In October 2018, the New Jersey Supreme Court reconciled the framework for analyzing the reliability of expert testimony under N.J.R.E. 702 and 703 in In re: Accutane Litigation. Significantly, New Jersey, a traditional Frye jurisdiction, incorporated certain federal Daubert factors for expert “use by our courts” but, overall, fell short of adopting the Daubert standard as a whole. In applying the relevant Daubert factors, the trial court in Accutane held that the subject experts’ methodologies were unsound due to the failure to apply fundamentals of the scientific method of the medical-evidence hierarchy. The decision resulted in the dismissal of over 3,000 claims. Reprinted courtesy of Thomas Regan, Lewis Brisbois and Karley Kamaris, Lewis Brisbois Mr. Regan may be contacted at Thomas.Regan@lewisbrisbois.com Ms. Kamaris may be contacted at Karley.Kamaris@lewisbrisbois.com Read the court decision
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Thousands of London Residents Evacuated due to Fire Hazards

June 29, 2017 — David Suggs – Bert L. Howe & Associates, Inc.
Nearly 4,000 residents were ordered by municipal authorities to “urgently evacuate apartments in five London high-rise buildings…after fire inspectors warned that the safety of the residents could not be guaranteed,” reported the New York Times. Displaced families were urged to find shelter with family or friends, but temporary accommodations were offered. Repairs may take up to four weeks. The five London towers that were evacuated all contain the same exterior cladding and insulation that is similar to what was used in Grenfell Tower, where 79 people died in fire only the preceding week, according to the New York Times. Camden Council stated that the cladding material would be removed. They had ordered noncombustible cladding, but later learned that combustible cladding had been installed. “Preliminary tests on the insulation samples from Grenfell Tower show that they combusted soon after the test started,” Detective Superintendent McCormack said in a televised statement, as quoted by the New York Times. “Cladding tiles had also failed initial tests,” she continued. Read the court decision
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Construction Litigation Roundup: “The New Empty Chair.”

June 04, 2024 — Daniel Lund III - Lexology
In a unanimous opinion, the United States Supreme Court ruled that cases in litigation in federal court but which are determined to be governed by the Federal Arbitration Act should be stayed pending arbitration, not dismissed. Traditionally, some federal circuits treated the text of 9 U.S.C. §3 – which speaks in terms of a stay of a matter filed in court but referred to arbitration (“…shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement…”) – as discretionary, dismissing suits when all of the claims brought in the court were referred to arbitration. In the case, the plaintiffs sued in Arizona state court on labor law violations, and the case was removed to federal court. When the defendant moved to compel arbitration and to dismiss, the plaintiffs “conceded that all of their claims were arbitrable.” Nonetheless, the plaintiffs requested a stay of the case, which the district court refused, dismissing the case without prejudice. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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Partner Denis Moriarty and Of Counsel William Baumgaertner Listed in The Best Lawyers in America© 2017

September 08, 2016 — Haight Brown & Bonesteel LLP
Partner Denis Moriarty and Of Counsel William Baumgaertner were selected by their peers for inclusion in The Best Lawyers in America© 2017. This marks the fifth consecutive year Mr. Moriarty has been listed for his work in insurance law, and this marks the eleventh year Mr. Baumgaertner has been listed for his defendants’ and plaintiffs’ work in personal injury and product liability litigation. Read the court decision
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Connecticut Gets Medieval All Over Construction Defects

February 10, 2012 — CDJ STAFF

The Hartford Courant reports that Connecticut is trying a very old tactic in a construction defect suit. The law library building at the University of Connecticut suffered from leaks which have now been repaired. The state waited twelve years after was complete to file lawsuit, despite that Connecticut has a six-year statute of limitations on construction defect claims. Connecticut claims that the statute of limitations does apply to the state.



The state is arguing that a legal principle from the thirteenth century allows it to go along with its suit. As befits a medieval part of common law, the principle is called “nullum tempus occurrit regi,” or “time does not run against the king.” In 1874, the American Law Register said that nullum tempus occurrit reipublicae “has been adopted in every one of the United States” and “is now firmly established law.”



In the case of Connecticut, Connecticut Solicitor General Gregory D’Auria said that “the statute of limitations does not apply to the state.” He also noted that “the state did not ‘wait’ to file the lawsuit. The lawsuit was filed only after all other options and remedies were exhausted.”



Connecticut also argued that “nullus tempus occurrit regi” applied in another construction defect case at the York Correctional Institution. The judge in that case ruled in December 2008 to let the case proceed. But in the library case, Judge William T. Cremins ruled in February 2009 that the statute of limitations should apply to the state as well. Both cases have been appealed, with the library case moving more quickly toward the Connecticut Supreme Court.

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2022 California Construction Law Update

December 27, 2021 — Garret Murai - California Construction Law Blog
It’s been a trying year as we approach the end of 2021. From the pandemic approaching nearly two years to concerns regarding climate change to the impact of inflation on everything from the cost of groceries to housing affordability. During the first half of the 2021-2022 legislative session, a total of 2,421 bills were introduced in 2021 of which 836 made it to the Governor’s desk and 770 were signed into law. This is up from the 2,223 bills introduced in 2020 of which 428 bills made it to the Governor’s desk and 372 were signed into law, due in large part, to the fact that legislators were not required to shelter-in-place as they were in 2020. Not surprisingly, for the construction industry, many of the bills were focused on the hot topics of the year including housing affordability and climate change. However, there were also the typical changes to project delivery methods and a few changes to the Licensing Law. 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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