FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Claim for Punitive Damages Based on Insurers' Alleged Bad Faith Business Practices Fails

September 05, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The court granted the insurer's motion to dismiss the bad faith claim based upon allegations of a general business practice of acting recklessly toward an insured's rights under the policy. Sandpiper Isle Condo. Ass'n v. Empire Indem. Ins. Co., 2022 U.S. Dist. LEXIS 114279 (M.D. Fla. June 28, 2022). Sandpiper suffered property damage from Hurricane Irma. Empire accepted the claim but there was disagreement on the value of the damage. An appraisal issued an award in favor of Sandpiper but Empire failed to pay the benefits for two years. 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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Providing Your Insurer Prompt Notice

May 20, 2024 — David Adelstein - Florida Construction Legal Updates
Sometimes, when it comes to insurance, you may hear the argument that you breached your insurance policy by failing to provide your insurer with prompt notice as the insurance policy requires. Well, this is not such an absolute issue. With that said, you should absolutely provide your insurer with prompt notice of a claim or loss. No legitimate reason not to. But, if you don’t, it is not an absolute get out of jail free card for your insurer, but it does give them a good argument, which you don’t really want to deal with. In Gulfpoint Construction Co., Inc. v. Westfield Ins. Co., 2024 WL 1759228 (11th Cir. 2024), an insured appealed a trial court’s ruling that found it did not provide prompt notice to its property insurer as the policy required. In this case, notice was provided two years after a loss from a hurricane. The insurer denied coverage and, in doing so, relied on the insured’s failure to provide prompt notice. Although the trial court agreed, the appellate court found this was a genuine issue of material fact. 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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Saved By The Statute: The Economic Loss Doctrine Does Not Bar Claims Under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law

May 10, 2021 — Gus Sara - The Subrogation Strategist
In Earl v. NVR, Inc., No. 20-2109, 2021 U.S. App. LEXIS 6451, the U.S. Court of Appeals for the Third Circuit (Third Circuit) considered whether, under Pennsylvania law, the plaintiff’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims against the builder of her home were barred by the economic loss doctrine. The UTPCPL is a Pennsylvania statute that prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” 73 Pa. Stat. Ann. § 201-3. The Third Circuit previously addressed the impact of the economic loss doctrine on UTPCPL claims in Werwinski v. Ford Motor Co., 286 F.3d 661 (3d Cir. 2002). In Werwinski, the court held that the plaintiff’s UTPCPL claim was barred by the economic loss doctrine. The Court of Appeals overturned its decision in Werwinski and held that the economic loss doctrine does not bar UTPCPL claims since such claims are statutory, and not based in tort. In Earl, the plaintiff, Lisa Earl, entered into an agreement with defendant NVR, Inc. (NVR) for the construction and sale of a home in Allegheny County, Pennsylvania. Ms. Earl learned of the home through NVR’s marketing, which described the home as containing “quality architecture, timeless design, and beautiful finishes.” Ms. Earl alleged that during the construction of the home, she had further discussions with agents of NVR, who made representations that the home would be constructed in a good and workmanlike manner and that any deficiencies noted by Ms. Earl would be remedied. The defendant also assured Ms. Earl that the home would be constructed in accordance with relevant building codes and industry standards. After moving into the home, Ms. Earl discovered several material defects in the construction. She provided notice of these defects to NVR, but NVR’s attempts to repair some of the defects were inadequate. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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HHMR Lawyers Recognized by Best Lawyers

December 27, 2021 — David M. McLain – Colorado Construction Litigation
For over twenty years, Higgins, Hopkins, McLain & Roswell has embodied and exemplified the principles of service and stewardship. In everything we do, we focus on serving our clients selflessly and to the best of our ability. In doing so, we always have in the forefront of our minds our obligation to act as the stewards of our clients’ trust, confidences, and resources. The firm itself, along with Carin Ramirez (in the area of Litigation - Insurance), and Dave McLain (in the area of Construction) were all recognized in this year's edition of the U.S. News Best Lawyers Journal. We could not be more proud of the firm we have created, or the service we are able to provide to Colorado's construction industry and its insurers. Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell Mr. McLain may be contacted at mclain@hhmrlaw.com Read the full story... Read the court decision
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Hurricane Claim Cannot Survive Anti-Concurrent Causation Clause

May 15, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The court upheld the insurer's denial of coverage for hurricane damage caused by storm surge. Heritage Motorcoach Resort & Marina Condominium Association, Inc v. Axis Ins. Co., 2023 U.S. Dist. LEXIS 58931 (S.D. Ala. April 4, 2023). Heritage operated a resort with a marina, dock and clubhouse. Hurricane Sally caused damage to the property. Heritage submitted a claim to its insurer, Axis. Axis investigated the claim. One investigator reported that the marina structures sustained damage caused by storm tide forces, wave action and debris impact. He opined that the marina structures did not sustain wind damage. When deposed, he testified that there was a combination of vessels and wave action causing damage to the marina. A second investigator found that the storm drove boats and other debris into the marina area causing much of the damage. 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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Advice to Georgia Homeowners with Construction Defects

October 02, 2013 — CDJ STAFF
NOLO Press has some advice for Georgia homeowners who have found construction defects. Their first advice is to make certain matters don’t get any worse. They note that the “the builder is not responsible for any damage that occurs to the home after you’ve discovered the problem.” You should keep records of those repairs, since you can’t get reimbursed unless you can prove what you spent. Some problems are covered under builder warranties, but usually only in the first year. But if it’s not covered, or the warranty has expired, NOLO notes that “you might not be out of luck.” The three options under Georgia law are to claim breach of contract, negligent construction, or fraud. NOLO gives the example that if the house was not built according to the plans, the builder might be found guilty of breach of contract. If the builder worked in “a shoddy manner that no other builder would use,” then it might be negligent construction. “If the builder outright lied about the quality or type of materials used,” you might have a claim for fraud. However, NOLO notes that first you must notify the builder. Under Georgia law, you have to inform the builder of the problems 90 days before you can file a lawsuit, and the builder has 30 days in which to respond to your claims. The hope of Georgia’s Right to Repair Act is to avoid a lawsuit and get the house fixed. And that’s always the best result. Read the court decision
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Reprinted courtesy of

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US Secretary of Labor Withdraws Guidance Regarding Independent Contractors

June 21, 2017 — Tanya Salgado - White and Williams LLP
The United States Secretary of Labor has withdrawn an informal guidance regarding independent contractors issued in 2015. We reported on the 2015 Administrator’s Interpretation here. The 2015 Interpretation provided a detailed explanation of the economic realities test, which is used to determine whether a worker is to be classified as an independent contractor or an employee under the Fair Labor Standards Act (FLSA). While the 2015 Interpretation did not change existing case law on independent contractor status, it was seen as sending a signal from the Department of Labor (DOL) regarding the agency’s focus. The DOL concluded the 2015 Interpretation with the statement, “most workers are employees under the FLSA’s broad definitions…” Just as the DOL’s 2015 Interpretation did not change existing case law, the DOL’s withdrawal of the Interpretation does not change the law in any way. The economic realities test remains the legal standard for determining independent contractor status under the FLSA. Read the court decision
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Reprinted courtesy of Tanya Salgado, White and Williams LLP
Ms. Salgado may be contacted at salgadot@whiteandwilliams.com

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A Court-Side Seat: Citizen Suits, “Facility” Management and Some Nuance for Your Hazard Ranking

September 28, 2020 — Anthony B. Cavender - Gravel2Gavel
Some very interesting and fairly complex environmental law rulings have been released in the past few days. U.S. Supreme Court—Trump, et al. v. Sierra Club, et al. On July 31, 2020, in a 5-to-4 decision, the Supreme Court denied a motion to lift the stay entered by the Court a few days earlier. The earlier action stayed a preliminary injunction issued by the U.S. District Court for the Northern District of California, which had enjoined the construction of a wall along the Southern Border of the United States which was to be constructed with redirected Department of Defense funds. The merits will be addressed by the lower court and perhaps the U.S. Court of Appeals for the Ninth Circuit. U.S. Court of Appeals for the District of Columbia Circuit—Meritor, Inc. v. EPA In a case involving EPA’s administration of the Superfund National Priority List (NPL) of priority Superfund sites requiring expedited cleanup, the court held that EPA had acted in accordance with the law and its implementing rules, and denied relief. Meritor was spun off from Rockwell Corporation, and is responsible for Rockwell’s environmental liabilities, including sites Meritor never operated. In 2016, EPA added the Rockwell International Wheel & Trim facility in Grenada, Miss., to the NPL list. Meritor alleged that this listing was arbitrary and capricious, pointing to EPA’s failure to adequately consider the impact of a mitigation measure added to the facility to address vapor intrusion, a factor EPA must consider in its application of the agency’s hazard ranking system. However, the court was not impressed by these arguments, and denied relief. The court’s discussion of the nuances of the hazard ranking system is very instructive Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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