Fairfield Connecticut Building Expert Directory

New York Appellate Court Holds Insurer’s Failure to Defend Does Not Constitute a “Reasonable Excuse” Required to Overturn Judgment

January 21, 2019 — Timothy Carroll & Anthony Miscioscia - White and Williams
A recent opinion by the New York Supreme Court, Appellate Division (Second Department) highlights the potential risks for an insurer leaving an insured unrepresented while the insurer pursues other parties or insurers who may be primarily responsible for defending the insured. In refusing to overturn a default judgment entered against an insured while its insurer knew that a complaint had been filed but refused to defend, the New York court’s decision raises questions about how claims adjusters are to effectively manage new claims to prevent a default judgment being entered against the insured, while at the same time ensuring that the appropriate party or insurance company handles the insured’s defense. In Kaung Hea Lee v. 354 Management Inc., 2018 N.Y. App. Div. LEXIS 7749 (N.Y. App. Div. Nov. 14, 2018) (354 Management) the underlying plaintiffs obtained a default judgment against the defendant insured due to its failure to answer the plaintiffs’ complaint. The plaintiffs then moved to determine the extent of damages to which they were entitled by virtue of the default judgment. The defendant opposed that motion, relying on an affidavit from a senior liability claims adjuster employed by the defendant’s insurer. “In the affidavit, the claim adjuster stated that she did not assign an attorney to answer the complaint because the codefendant . . . was contractually obligated to defend and indemnify the defendant [insured], and she had been attempting to have either [the codefendant] or its insurer provide an attorney” for the defendant. However, it was determined that the claims adjuster knew about the plaintiffs’ complaint two weeks after the plaintiffs served it on the defendant and months before the plaintiffs moved for default judgment. Despite this knowledge, the defendant’s insurer did not provide a defense or, apparently, obtain an extension of time to respond to the complaint, which led to the default judgment. Reprinted courtesy of Timothy Carroll, White and Williams and Anthony Miscioscia, White and Williams Mr. Carroll may be contacted at carrollt@whiteandwilliams.com Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Read the court decision
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Wood Product Rotting in New Energy Efficient Homes

January 13, 2014 — Melissa Zaya-CDJ STAFF
Brad Pitt’s Make It Right Foundation may be filing a suit against TimberSIL, a wood manufacturer, as reported by WRAL. The foundation built 100 new homes in the 9th Ward of New Orleans after Hurricane Katrina, and used the TimberSIL wood in 30 of the homes for decks and stairs. Make It Right spokeswoman Taylor Royle told Richard Thompson of WRAL that they chose TimberSIL because of the absence of chemicals, which will allow the wood to be mulched and composted after it has served its purpose. However, Royle claimed that the wood has begun to rot “despite being guaranteed for 40 years,” according to WRAL. She further alleged that the manufacturer failed to respond to any of the foundation’s attempts to discuss reimbursement of their costs under the forty year product warranty. Read the court decision
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Common Law Indemnification - A Primer

April 12, 2021 — Brian F. Mark - Hurwitz & Fine, P.C.
“Common law indemnification is generally available ‘in favor of one who is held responsible solely by operation of law because of his relationship to the wrongdoer.’” McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 375 (2011), quoting Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690 (1990). What is Common Law Indemnification and Who Can Assert it? Indemnification, in general terms, is the right of one party to shift a loss to another and may be based upon an express contract or an implied obligation. Bellevue S. Assoc. v. HRH Constr. Corp., 78 N.Y.2d 282 (1991). Based on a separate duty owed the indemnitee by the indemnitor, common law indemnification, or implied indemnification, permits one who was compelled to pay for the wrong of another to recover from the wrongdoer the damages paid to the injured party. D’Ambrosio v. City of New York, 55 N.Y.2d 454, 460 (1982); Curreri v. Heritage Prop. Inv. Trust, Inc., 48 A.D.3d 505, 507 (2d Dept. 2008). The premise of common law indemnification is vicarious liability, defined as “liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties” Black’s Law Dictionary (11th ed. 2019). Common law indemnification “reflects an inherent fairness as to which party should be held liable for indemnity.” McCarthy, 17 N.Y.3d at 375. It is a restitution concept which permits shifting the loss because, to fail to do so, would result in the unjust enrichment of one party at the expense of the other. Mas, 75 N.Y.2d at 680, 690; Kingsbrook Jewish Medical Center v. Islam, 172 A.D.3d 1342, 1343 (2d Dept. 2019). Read the court decision
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Reprinted courtesy of Brian F. Mark, Hurwitz & Fine, P.C.
Mr. Mark may be contacted at bfm@hurwitzfine.com

Can Your Employee File a Personal Injury Claim if They’re Injured at Work?

March 14, 2022 — Louis Patino - Construction Executive
Construction accidents can happen to anyone. It’s common for employees to work at height, with machinery or alongside any number of potential hazards, so it’s no surprise that injury rates in construction are 71% higher compared to other industries. Anything from a ladder manufacturing defect to an unguarded ledge or wet surface can increase the likelihood of a fall, but those aren’t the only dangers. If scaffolding collapses due to an excessive load or improper construction, it can prove fatal. Then, there are struck-by hazards—one of the Occupational Safety and Health Administration’s (OSHA) “Fatal Four”—including falling, swinging and rolling objects; crane misuse; electrical faults; and issues with personal protective equipment. These are all hazards construction workers have to contend with daily. Reprinted courtesy of Louis Patino, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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LA’s $1.2 Billion Graffiti Towers Put on Sale After Bankruptcy

June 04, 2024 — John Gittelsohn - Bloomberg
For sale: Steel skeletons of three towers in downtown Los Angeles, erected by a Chinese developer that spent $1.2 billion before running into financial troubles. The site, called Oceanwide Plaza, became famous this year when graffiti artists covered the 49-floor-tall structures. Now, the property is going on the market, with lenders and other creditors needing about $400 million to recoup their money. The brokerage Colliers and advisory firm Hilco Real Estate have been hired to market and handle a sale of the property, subject to bankruptcy court approval, according to a statement. “We are determined to run a disciplined and orderly process to identify the right developer to finish the project in time for the 2028 Summer Olympics,” said Mark Tarczynski, an executive vice president at Colliers. Read the court decision
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Reprinted courtesy of John Gittelsohn, Bloomberg

Property Damage to Non-Defective Work Is Covered

February 18, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The New Hampshire Supreme Court found some of the property damage evolving from the insured's portion of the work was covered under its liability policy. Cogswell Farm Condo. Ass'n v. Tower Group, Inc., 2015 N.H. LEXIS 3 (N.H. Jan. 13, 2015). Lemery Building Company, Inc. constructed and developed 24 residential condominium units. After units were sold, the Cogswell Farm Condominium Association sued Lemery, asserting that the "weather barrier" components of the units were defectively constructed and resulted in damage to the units due to water leaks. Cogswell then sued its insurer, Tower Group, Inc., seeking a declaratory judgment that its claims against Lemery were covered. The trial court eventually determined that exclusions J (1) and J (6) both applied to exclude coverage. Exclusion J (1) excluded coverage for "property damage" to property that Lemery "owns, rents, or occupies." Exclusion J (6) excluded coverage for property damage to "[t] hat particular part of any property that must be restored, repaired or replaced because [Lemery's] work was incorrectly performed on it." 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

U.S. Government Bans Use of Mandatory Arbitration Agreements between Nursing Homes and Residents, Effective November 28, 2016

November 17, 2016 — Jeffrey M. Daitz & Joseph Vento – Peckar & Abramson, P.C.
On September 28, 2016, the Centers for Medicare and Medicaid Services (“CMS”), which is part of the U.S. Department of Health and Human Services, issued a new rule that bans federal funding to any nursing home that requires its residents to enter mandatory pre-dispute arbitration agreements upon admission. The rule prevents nursing homes from forcing residents to submit any disputes concerning care, payment for services, etc., to mandatory binding arbitration rather than to a court. Mandatory arbitration agreements are frequently used in many types of industries and have been for decades. However, recent eff orts by several consumer advocate groups have sought to curtail the use of mandatory arbitration clauses in industries where the individuals who executed such agreements have little to no bargaining power. According to these groups, nursing home residents are potentially more vulnerable than most to being unwittingly bound by such agreements because of the nature of the admissions process. The new rule is set to take effect on November 28, 2016, and will only apply to agreements entered into after that date. Reprinted courtesy of Jeffrey M. Daitz, Peckar & Abramson, P.C. and Joseph Vento, Peckar & Abramson, P.C. Mr. Daitz may be contacted at jdaitz@pecklaw.com Mr. Vento may be contacted at jvento@pecklaw.com Read the court decision
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Latest Updates On The Coronavirus Pandemic

March 30, 2020 — ENR Editors - Engineering News-Record
Coronavirus has struck a heavy blow against the world economy as it forces countries into lockdown with "closed for business" signs, hollows out the tourism, travel and hospitality sectors, turns out the lights on business gatherings and events, sends employees home to work and drives the stock market into a dizzying tumble. ENR Editors ENR may be contacted at ENR.com@bnpmedia.com Read the full story for ENR's ongoing reporting, analysis and commentary on construction sector developments Read the court decision
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