FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Toolbox Talk Series Recap - The Mediator's Proposal

January 21, 2025 — Douglas J. Mackin - The Dispute Resolver
In our final edition of the year of Division 1's Toolbox Talk Series on December 19, 2024, Matthew Argue and Gene Witkin discussed the use of the Mediator’s Proposal to bridge any final gaps to settlement between parties to a mediation. For those unfamiliar, a Mediator’s Proposal is a settlement proposal that the mediator makes to all parties to the dispute simultaneously. Each party then advises the mediators in confidence whether they accept or reject the proposal. The Mediator will communicate to all the parties that the Mediator’s Proposal is accepted only if all parties accept. Argue and Witkin emphasized that the Mediator’s Proposal is not a shortcut and should not be used simply to split the difference. Instead, it is a tool available to the mediator to push the parties to resolution after they have had robust negotiations, understand the strengths and weaknesses of the positions of each side, and have made progress towards at least getting within range of one another. A successful Mediator’s Proposal depends on the mediator (and the parties) having sufficient information to make a credible recommendation and creating an environment where all parties will consider the Mediator’s Proposal in good faith. Read the court decision
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Reprinted courtesy of Douglas J. Mackin, Cozen O’Connor
Mr. Mackin may be contacted at dmackin@cozen.com

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Construction Defect Bill a Long Shot in Nevada

June 28, 2013 — CDJ STAFF
Construction defect reform may still be on the table in Nevada, according to the Reno Gazette Journal. Assembly member Pat Hickey got a committee hearing for Assembly Bill 504 on Sunday. The bill is backed by the construction industry and opposed by trial lawyers. Hickey told the Assembly Commerce and Labor committee that “this bill is not perfect, I would like for it to do more,” and said that without changes Nevada will “continue to reward litigation over resolution.” AB504 would, among other provisions, provide some protection to subcontractors from the actions of general contractors, though Ira Hansen, an assembly member from Sparks and the owner of a plumbing business, called it a “backhanded slap.” The Gazette noted that similar language pertaining to subcontractors was in AB367, which is sponsored by Democrats. Hickey and Hansen are both Republicans. Read the court decision
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Extrinsic Evidence, or Eight Corners? Texas Court Sheds Light on Determining the Duty to Defend

December 18, 2022 — Nathan A. Cazier - Payne & Fears
Last year, the Texas Supreme Court adopted a narrow exception to the state’s eight-corners rule, and allowed the consideration of extrinsic evidence to determine the duty to defend. The exception arguably raised more questions than it resolved. Last month, a Texas federal court answered some of these questions by rejecting an insurer’s attempt to introduce extrinsic evidence under the newly minted exception. Texas permits few, if any, deviations from its eight-corners rule, which determines an insurer’s duty to defend by only considering the operative pleading and the terms of the policy, without any regard to extrinsic evidence or facts. This protects policyholders by erring on the side of defending claims, even if coverage is questionable. In Monroe Guar. Ins. Co. v. Bitco Gen. Ins. Corp., 640 S.W.3d 195, 199 (Tex. 2022) (“Monroe”), the Texas Supreme Court adopted an exception to the eight-corners rule, holding that extrinsic evidence may be considered when an “information gap” between the pleading and the policy makes it impossible to determine coverage, but only in limited scenarios where the extrinsic evidence (1) goes solely to an issue of coverage and does not overlap with the merits of liability, (2) does not contradict facts alleged in the pleading, and (3) conclusively establishes the coverage fact to be proved. Read the court decision
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Reprinted courtesy of Nathan A. Cazier, Payne & Fears
Mr. Cazier may be contacted at nac@paynefears.com

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Improperly Installed Flanges Are Impaired Property

February 16, 2016 — Tred R. Eyerly – Insurance Law Hawaii
Answering certified questions from the Fifth Circuit, the Texas Supreme Court found there was no coverage for flanges that leaked after installation. U. S. Metals, Inc. v. Liberty Mutual Group, Inc., 2015 Texas LEXIS 1081 (Dec. 4, 2015). U. S. Metals sold Exxon 350 custom-made, stainless steel, weld-neck flanges for use in refineries. Testing after installation showed the flanges leaked and did not meet industry standards. Exxon decided to replace the flanges to avoid risk of fire and explosion. For each flange, this involved stripping the temperature coating and insulation, cutting the flange out of the pipe, removing the gaskets, grinding the pipe surfaces smooth for re-welding, replacing the flange and gaskets, welding the new flange to the pipes, and replacing the temperature coating and insulation. The replacement process delayed operation of the diesel units for several weeks. Exxon sued U.S. Metal for over $6 million as the cost of replacing the flanges and $16 million as damages for lost use of the diesel units during the process. U.S. Metals settled with Exxon for $2.2 million and then sought indemnification from its liability insurer, Liberty Mutual. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Incorporation, Indemnity and Statutes of Limitations, Oh My!

January 19, 2017 — Christopher G. Hill – Construction Law Musings
We all know that the contract is king in Virginia. We also know that Virginia will allow for a so called “incorporation” clause that will allow for “flow down” of certain prime contract provisions in a way that will make those provisions applicable to subcontractors. We also know that a claim for breach of contract or other contractual claim does not last forever due to certain statutes of limitation found in the Code of Virginia. What happens when all of these elements crash together in one place leading to litigation? Well, a relatively recent case from the Virginia Supreme Court gives at least a partial answer. In Hensel Phelps Construction Company v Thompson Masonry Contractor, Inc, the Virginia Supreme Court considered a claim that arose from construction at Virginia Tech by Hensel Phelps. The construction concluded in 1998 (remember that date). The Prime Contract included language concerning a one year “Guarantee of Work” as well as fairly typical Warranty of Workmanship” language. However the Prime Contract also stated that the one year guaranty term did nothing to affect any other limitations period for any other action pursuant to the Prime Contract (this is important as well because Virginia Tech was not subject to any statute of limitations due to its status as an agency of the Commonwealth of Virginia). Final payment was made to Hensel Phelps and subsequently to the subcontractors in 1999. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Homeowners Should Beware, Warn Home Builders

November 20, 2013 — CDJ STAFF
In the aftermath of a tornado in central Illinois, home builders are warning homeowners to be wary of scam artists. “We need to protect consumers from repair scams,” said Lisa Scott, the executive director of the Home Builders Association of Greater Peoria. “After a devastating storm, people come in from outside the area to offer help,” she said, noting that some will be offering help they won’t actually provide. “This isn’t about supporting our members,” she said, “this is about having somebody who stands by their work instead of paying cash for a roof job and having no one to call when a few months later, it starts leaking.” She further warns, “you shouldn’t be paying cash. You should have a contract.” One home builder, David Whitehurst, owner of P & W Builders, noted that “there will be a lot of people out there trying to make a quick buck that aren’t qualified to do the work.” Read the court decision
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"Multiple Claims" Provisions on Contractor's Professional Liability Policy Creates a Trap for Policyholders

May 24, 2021 — Michael V. Pepe - Saxe Doernberger & Vita
In Berkley Assurance Company v. Hunt Construction Group, Inc., 465 F.Supp.3d 370 (S.D.N.Y., 2020), professional liability insurer Berkley sued its insured, Hunt, a construction management firm, seeking a declaration that it did not owe Hunt a duty to defend and indemnify against breach of contract claims. The United States District Court for the Southern District of New York granted Berkley’s motion for summary judgment and denied Hunt’s motion for partial summary judgment. Among other things, the court held that the policy’s automatic extended reporting period did not apply to Hunt’s first claim. The multiple claims provision barred Hunt’s second claim because the claims were related. The court’s holding creates a potential trap for policyholders who wait to see how a claim develops before reporting it to their insurance carrier. This case demonstrates that waiting to see how a claim develops can result in a loss of coverage. Policyholders need to be aware of this trap and report all claims and circumstances immediately. Read the court decision
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Reprinted courtesy of Michael V. Pepe, Saxe Doernberger & Vita
Mr. Pepe may be contacted at MPepe@sdvlaw.com

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California Supreme Court Declines to Create Exception to Privette Doctrine for “Known Hazards”

September 13, 2021 — Tracy D. Forbath - Lewis Brisbois
In Gonzalez v. Mathis (Aug. 19, 2021, S247677) __ Cal.5th___, the California Supreme Court reversed an appellate decision holding that a landowner may be liable to an independent contractor, or the contractor’s workers, for injuries resulting from “known hazards,” as running contrary to the Privette doctrine. In Gonzalez, the contractor, who specialized in washing skylights, slipped and fell while accessing the landowner’s particularly hard to reach skylight from a narrow retaining wall that was allegedly covered in loose gravel and slippery. (Slip opn., p. 3.) While the trial court initially granted the landowner summary judgment pursuant to the Privette doctrine, the appellate court reversed and held that the landowner had a responsibility to take reasonable safety precautions where there was a known safety hazard on the landowner’s premises. (Id. at p. 6.) Whether the landowner could have taken various safety precautions also raised disputed issues of material fact precluding summary judgment. (Ibid.) However, the California Supreme Court concluded that no broad, third exception to the Privette doctrine lies; “unless a landowner retains control over any part of the contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the injury [citation], it will not be liable to an independent contractor or its workers for an injury resulting from a known hazard on the premises.” (Slip opn., p. 2.) Read the court decision
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Reprinted courtesy of Tracy D. Forbath, Lewis Brisbois
Ms. Forbath may be contacted at Tracy.Forbath@lewisbrisbois.com

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