FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Appeals Court Rules that Vertical and Not Horizontal Exhaustion Applies to Primary and First-Layer Excess Insurance

August 31, 2020 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Santa Fe Braun v. Ins. Co. of North America (No. A151428, filed 7/13/20), a California appeals court relied on Montrose Chemical Corp. of California v. Superior Court (2020) 9 Cal.5th 215 (Montrose III), to hold that absent express policy wording to the contrary, horizontal exhaustion of all primary insurance is not required in order to trigger first-layer excess coverage. Beginning in 1992, Braun was sued for asbestos injuries from refineries it constructed and maintained. Braun had primary coverage and multiple layers of excess coverage for the relevant time period. After defending for years, the primary insurers reached a settlement under which they paid their limits into a trust which would fund the ongoing defense and settlements. Certain of the excess insurers settled and also contributed to the trust. 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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California Appeals Court Remands Fine in Late Completion Case

November 18, 2011 — CDJ STAFF

The California Court of Appeals in Stanislaus County has reversed the decision of the lower court in Greg Opinski Construction Inc. v. City of Oakdale. The earlier court had awarded the city of judgment of $54,000 for late completion, $3,266 for repair of construction defects and interest, and $97,775 in attorneys’ fees. The late completion of the project was due to actions by the City of Oakdale, however, the court rejected Opinski’s argument that the California Supreme Court decision in Kiewit did not allow this, as his contract with the city established a procedure for claiming extensions.

The appeals court noted that the Kiewit decision has been “criticized as an unwarranted interference in the power of contracting parties to shift the risk of delays caused by one party onto the other party by forcing the second party to give the first notice of any intention to claim an extension of time based on delays caused by first.” They cited Sweet, a professor at Boalt Hall, UC Berkeley’s law school, that Kiewit “gutted” the “provision that conditions the contractor’s right to claim an extension of time for delays beyond his control.”

Further changes in California law in response to the Kiewit decision lead to the current situation which the court characterized as “if the contractor wished to claim it needed an extension of time because of delays caused by the city, the contractor was required to obtain a written change order by mutual consent or submit a claim in writing requesting a formal decision by the engineer.”

Opinski also argued that the lower court misinterpreted the contract. The Appeals court replied that “Opinski is mistaken.” He cited parts of the contract regarding the increase of time, but the court rejected these, noting that “an inability to agree is not the same as an express rejection.”

The court also rejects Opinski’s appeal that “the evidence the project was complete earlier than September 30, 2005, is weightier than the evidence to the contrary,” which they describe as “not a winning appellate argument.” The court points out that the role of an appeals court is not to reweigh the evidence, but to determine “whether the record contains substantial evidence in support of the judgment.”

The court did side with Opinski on one question of the escrow account. They rejected most of his arguments, repeating the line “Opinski is mistaken” several times. They decided that he was mistaken on the timing of the setoff decision and on whether the city was the prevailing party. However, the appeals court did find that Opinski was not liable for interest on the judgment.

The appeals court rejected the awarding of prejudgment interest to the city as the funds from which the judgment was drawn was held in an escrow account. The court noted that the city had access to the funds and could “access the funds when it determined that Opinski had breached the contract.” The appeals court noted that the judgment exhausted the escrow balance and remanded the case to the lower court to determine the amount own to Opinski.

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Ambiguity Kills in Construction Contracting

February 15, 2018 — Christopher G. Hill – Construction Law Musings
Well, I’m back and hope to have a more consistent publishing schedule moving forward. I appreciate the continued readership through what has been a busy time for my solo construction practice over the last couple of months. Now, back to our program. . . Here at Construction Law Musings, I have often beaten the drum of a solid contract that leaves as little as possible to chance or the dreaded “grey areas” where we construction lawyers like to make money. An example of the issues that can arise from ambiguity can be found in a case from 2017 in the Western District of Virginia, W.C. English, Inc. v. Rummel, Klepper & Kahl, LLP et al Read the court decision
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Reprinted courtesy of Christopher G. Hill – The Law Officeof Christopher G. Hill, PC

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Hundreds of Coronavirus Coverage Cases Await Determination on Consolidation

September 21, 2020 — Tred R. Eyerly - Insurance Law Hawaii
On July 30, 2020, the Judicial Panel on Multi-District Litigation (JPML) heard oral argument on the potential consolidation of all federal cases involving business interruption coverage relating to coronavirus and shut-down orders. A decision will be rendered in the near future. Meanwhile, many cases are on hold, waiting for a determination on consolidation. One such case is Pigment Inc. v. Hartford Fin. Servs. Group, 2020 U.S. Dist. LEXIS 133230 (S.D. Cal. July 27, 2020), where the court granted a stay pending a decision by the JPML. The case is a class action based on denial of coverage under business interruption insurance. Plaintiff's case alleged a bad faith denial that risked the permanent closure of its business due to unexpected temporary shutdowns from the COVID-19 pandemic. Plaintiff sought a stay pending the decision of the JPML. The court considered the possible damage which could result from granting a stay, the hardship which a party could suffer in being required to go forward, and the orderly course of justice measured by the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay. 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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Bel Air Mansion Construction Draws Community Backlash

December 17, 2015 — Beverley BevenFlorez-CDJ STAFF
According to the New York Times, a Bel Air hillside mansion in Los Angeles has outraged neighbors who refer to the unfinished, 30,000 square foot and almost 70 feet high building as “the Starship Enterprise.” Despite legal violations such as tearing down the original structure without the city’s permission, the height being twice the legal limit, and digging into the hillside though the site is an “earthquake-induced landslide area,” the case has not progressed much in four years because the actual owner is a shell company. The New York Times summarized the issues at 901 Strada Vecchia as follows: “After the unapproved teardown and leveling of the hillside, the construction team did ask permission to grade the hill but used a survey that made it appear that workers had not already removed significant loads of dirt. Then they joined two buildings that were supposed to be separate and built so high that they drastically violated the city’s height limit.” Read the court decision
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How Philadelphia I-95 Span Destroyed by Fire Reopened in Just 12 Days

July 24, 2023 — James Leggate - Engineering News-Record
Less than two weeks after a tanker truck crash and fire destroyed an Interstate-95 bridge in northeast Philadelphia, the highway reopened to traffic on a temporary road surface June 23. The hastened work to reopen the highway, which has an average daily traffic count of nearly 160,000 vehicles, including about 13,000 trucks, was the result of collaboration between contractors, material suppliers and union workers with local, state and federal officials, Pennsylvania Gov. Josh Shapiro (D) said. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Turkey to Start Building 200,000 Homes in March, Erdogan Says

February 20, 2023 — Taylan Bilgic - Bloomberg
President Recep Tayyip Erdogan has announced that Turkey will begin constructing almost 200,000 homes as early as March in areas devastated by twin earthquakes that hit the southeast of the country two weeks ago. Erdogan emphasized the severity of the earthquake’s impact, drawing parallels to historical events that wreaked havoc in Anatolia, the heartland of modern Turkey. “With faith, courage and patience, we have resisted numerous political and social upheavals for centuries, such as the Crusades and the Mongol invasions,” he said. The construction of 199,739 new homes will begin in 11 provinces, including the hardest-hit Hatay and Kahramanmaras, Erdogan said. The death toll from the earthquakes has risen to 41,156 while over 114,000 people have been rescued from the rubble. Read the court decision
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Reprinted courtesy of Taylan Bilgic, Bloomberg

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Policy Lanuage Expressly Prohibits Replacement of Undamaged Material to Match Damaged Material

March 09, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Construing an all-risk Businessowners Policy, the court found that the policy language did not required replacement of undamaged material match materials that were damaged. Pleasure Creek Townhomes Homeowners' Ass'n v. Am. Family Ins. Co., 2019 Minn. App. Unpub. LEXIS 1095 (Minn. Ct. App. Nov. 25, 2019). The policy covered the Association's 14 townhome buildings. In June 2017, a hail storm damaged siding on all 14 buildings. An appraisal panel included the cost to replace the undamaged, faded siding in its appraisal award so that it would match the new siding. American Family refused to pay this component - which was appraised at about $211,382 - of the award. An exclusion in the policy provided,

We will not pay to repair or replace undamaged material due to mismatch between undamaged material and new material used to repair or replace damaged material.

We do not cover the loss in value to an property due to mismatch between undamaged material and new material used to repair or replace damaged material.

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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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