FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Compliance Doesn’t Pay: Compliance Evidence Inadmissible in Strict Liability Actions

February 05, 2024 — Kyle Rice - The Subrogation Strategist
In Sullivan v. Werner Co., No. 18 EAP 2022, 2023 Pa. LEXIS 1715 (Dec. 22, 2023), the Supreme Court of Pennsylvania (Supreme Court) clarified that in light of its decision in Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014), evidence that a product complied with industry standards is inadmissible in an action involving strict product liability. In Tincher, the Supreme Court overruled prior case law and reaffirmed that Pennsylvania is a Second Restatement Jurisdiction. As stated in Sullivan, discussing Tincher, under the Restatement (Second) of Torts § 402A, a “seller of a product has a duty to provide a product that is free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’ To prove breach of this duty, a ‘plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a “defective condition.”” Read the court decision
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Reprinted courtesy of Kyle Rice, White and Williams
Mr. Rice may be contacted at ricek@whiteandwilliams.com

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North Carolina Learns More Lessons From Latest Storm

October 16, 2018 — Pam Radtke Russell - Engineering News-Record
There’s no big wall planned to protect North Carolina’s coast from storm surge. There’s no massive tunnel system proposed to keep floodwaters away from populated areas. There are no grant-funded resilience competitions to help the state plan to manage water more effectively. Read the court decision
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Reprinted courtesy of Pam Radtke Russell, ENR
Ms. Russell may be contacted at Russellp@bnpmedia.com

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Congratulations to Haight’s 2021 Super Lawyers San Diego Rising Stars

May 03, 2021 — Catherine M. Asuncion, Arezoo Jamshidi & Michael C. Parme - Haight Brown & Bonesteel LLP
Haight congratulates partners Michael Parme and Arezoo Jamshidi and associate Catherine Asuncion who were selected to the 2021 San Diego Super Lawyers Rising Stars list. Reprinted courtesy of Catherine M. Asuncion, Haight Brown & Bonesteel LLP, Arezoo Jamshidi, Haight Brown & Bonesteel LLP and Michael C. Parme, Haight Brown & Bonesteel LLP Ms. Asuncion may be contacted at casuncion@hbblaw.com Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com Mr. Parme may be contacted at mparme@hbblaw.com Read the court decision
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Measure of Damages in Negligent Procurement of Surety Bonds / Insurance

September 04, 2018 — David Adelstein - Florida Construction Legal Updates
My broker procured the wrong insurance and I am exposed to a loss. My broker failed to procure proper insurance and I am exposed to a loss. “Where the parties enter into an agreement to procure insurance and there is a negligent failure to do so, an insurance broker may be liable for damages.” The Lexington Club Community Association, Inc. v. Love Madison, Inc., 43 Fla.L.Weekly D1860a (Fla. 4th DCA 2018). The proper measure of damages in a negligent procurement of insurance claim is “what would have been covered had the insurance been properly obtained.” Id. quoting Gelsomino v. ACE Am. Ins. Co., 207 So.3d 288, 292 (Fla. 4th DCA 2016). This measure of damages in a negligent procurement of insurance claim is important because it is the measure of damages that dictates recoverable damages under this claim. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Breach Of Duty of Good Faith And Fair Dealing Packaged With Contract Disputes Act Claim

March 27, 2023 — David Adelstein - Florida Construction Legal Updates
An interesting opinion on a motion to dismiss came out of the United States Court of Federal Claims dealing with the claim that the government breached its duty of good faith and fair dealing in administering the prime contract. The contractor’s argument was that the government breached its duty of good faith and fair dealing by denying the contractor’s claim under the Contract Disputes Act (CDA). This was a creative claim and argument that deserves consideration because it tied in the contracting officer’s denial of the CDA claim for additional money with a breach of the duty of good faith and fair dealing. In this case, Aries Construction Corp. v. U.S., 2023 WL 2146598 (Fed. Cl. 2023), a prime contractor was hired for a water pipeline construction project. The contractor encountered unexpected difficult site conditions that required additional equipment and labor. The contractor informed the contracting officer and alleged it was instructed to proceed with the additional equipment and labor. The contractor submitted a claim under the CDA but the contracting officer denied the claim. The contractor pursued the claim in the United States Court of Federal Claims arguing the government breached the contract and, of interest, breached its duty of good faith and fair dealing. The government moved to dismiss the breach of good faith and fair dealing claim arguing that besides failing to state a cause of action the Court of Federal Claims had no jurisdiction because the breach of the duty of good faith and fair dealing was not properly presented to the contracting officer under the CDA. The Court of Federal Claims denied the government’s motion. 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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Court Orders House to be Demolished or Relocated

April 26, 2011 — Beverley BevenFlorezCDJ STAFF

Decision Affirmed in Central Arkansas Foundation Homes, LLC v. Rebecca Choate



The Arkansas Court of Appeals affirmed the decision by the trial court in Central Arkansas Foundation Homes, LLC v. Rebecca Choate. In the trial case, Central Arkansas Foundation Homes (CAFH) sought payment for a home built for Choate, while Choate alleged that the builders committed multiple construction defects including using the wrong foundation materials and positioning the house in the wrong direction.



After the house was built, CAFH contacted Choate regarding payment, however, Choate alleged that the finished product did not match the contract. “ After CAFH completed construction, it obtained permanent home financing for Choate and tried to contact her to close the transaction. Choate did not respond until October 2005, when she sent CAFH a list of alleged construction defects, including that the house was facing in the wrong direction; that it was not built on a slab; and that the fireplace, garbage disposal, driveway, and storage area were missing. CAFH replied to Choate in writing, telling her that she had until January 6, 2006, to close on the house or CAFH would sell it. The correspondence enclosed worksheets showing that the amount Choate would owe at closing exceeded $94,000, which included interest that had accrued on the as-yet unpaid construction loan.”



Initially, the court found in favor of CAFH. “On April 18, 2007, Choate’s attorney withdrew from representing her. Soon thereafter, CAFH’s attorney asked the court to set a final hearing on the case. The attorney purportedly sent Choate a letter by regular mail on May 15, 2007, advising her that the case was set for trial on July 9, 2007. Choate, however, did not appear. CAFH did appear, and its general manager, John Oldner, testified to events leading up to the case and the amount of damages claimed. According to Oldner, the interest on the construction loan had accrued to the point that CAFH now sought $104,965.88 from Choate. The court found in favor of CAFH and entered judgment for that amount, plus attorney fees, on July 18, 2007. The court ruled that CAFH could sell the house and either remit any excess to Choate or look to Choate for the deficiency if the sales price did not cover the judgment.”



However, Choate successfully argued that she did not receive notice of the trial. A new trial was ordered, and the outcome was quite different. “On June 6, 2008, the circuit court entered judgment for Choate, ruling that the house was not in substantial compliance with the parties’ contract and that the contract should be rescinded. The court found that the house suffered from numerous construction defects, that the contract contemplated a slab rather than a concrete-pier foundation, and that CAFH ignored Choate’s complaints that the house was facing the wrong way. The judgment directed CAFH to hold Choate harmless on the construction loan, to deed Choate’s two acres back to her, and to remove the house from Choate’s property.”



The Court of Appeals “found that Choate would be unjustly enriched by retaining the benefit of the septic systems and utility lines that CAFH installed on her land. The court therefore awarded $5340 to CAFH as a quantum-meruit recovery for the value of that work. CAFH contends that the award is not sufficient, but we see no clear error.” In the end, the Court of Appeals provided this reason for declining to reverse the trial court’s decision: “The court in this case apparently concluded that the house constructed by CAFH was so fundamentally at odds with Choate’s contractual expectations that she was not unjustly enriched and should simply be, as nearly as possible, returned to the status quo ante. Accordingly, the court ordered the house removed from her property and permitted CAFH to either relocate the house or salvage the house’s materials and unused appliances. We decline to reverse the court’s weighing of the equities in this manner.”



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Surplus Lines Carrier Can Force Arbitration in Louisiana Despite Statute Limiting Arbitration

February 12, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court granted the surplus lines insurer's motion to compel arbitration despite a Louisiana statute barring policies from depriving courts of jurisdiction in cases against insurers. Queens Beauty Supply, LLC v. Indep.Specialty Ins. Co., 2023 U.S. Dist. LEXIS 195372 (E.D. La. Oct. 31, 2023). Hurricane Ida damaged property leased by Queens. Queens filed suit against its insurer, Independent Specialty Insurance Company (ISIC) for breath of contract and bad faith for failing to pay the full amount Queens contends it was owed for the damage. ISIC moved to compel arbitration. Queens argued that ISIC waived its right to enforce the policy's arbitration clause by its actions before the court, including failing to opt-out of the settlement program adopted for Hurricane Ida cases. The court disagreed, ISIC had taken no overt act that evidenced a desire to resolve the instant dispute through litigation rather than arbitration. ISIC asserted as an affirmative defense that Queens's claims were barred by the arbitration clause in the policy. ISIC then participated in the settlement program for Hurricane Ida cases, which evidences a desire to settle the dispute, not to resolve it by litigation. Therefore, ISIC had not waived its right to arbitrate. 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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Ex-Construction Firm That Bought a $75m Michelangelo to Delist

January 08, 2019 — Drew Singer - Bloomberg
A Chinese construction firm-turned-art-collector will be delisted from the Nasdaq effective Friday, following a 260 percent run-up in its stock price this fall. Shares in Yulong Eco-Materials Ltd. soared after the company agreed to buy the “Millennium Sapphire” for $50 million in October and a “Crucifixion” painting for $75 million in November. The firm was formerly a “vertically integrated manufacturer of eco-friendly building products located in the city of Pingdingshan in Henan Province, China," according to a company filing. Read the court decision
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Reprinted courtesy of Drew Singer, Bloomberg

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