Fairfield Connecticut Building Expert Directory

Quick Note: Can a Party Disclaim Liability in their Contract to Fraud?

April 11, 2022 — David Adelstein - Florida Construction Legal Updates
It is possible for a party to contractually disclaim or otherwise foreclose liability to a fraud claim. However, let’s be honest. It can be done, but rarely is and would require very specific language to EXPLICITLY disclaim or foreclose such liability to a fraud claim. A recent case, discussed here, exemplifies this point where as-is language in a purchase-and-sale agreement was NOT specific to contractually foreclose or disclaim liability to a fraud claim. For a party to contractually waive a fraud claim, there needs to be an express waiver of liability for fraud that might have been made and that any fraudulent misrepresentation, if such fraud was committed, was disclaimed and would not destroy the validity of the parties’ contract. 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

Insurers Get “Floored” by Court of Appeals Regarding the Presumptive Measure of Damages in Consent Judgments

May 13, 2014 — Mark Scheer and Brent Williams-Ruth – Scheer & Zehnder LLP
CASE: Miller v. Kenny, 68594-5-I, 2014 WL 1672946 (Wash. Ct. App. Apr. 28, 2014). Snapshot Synopsis: $21 million bad faith consent judgment verdict upheld. $4.15 million underlying stipulated consent judgment was the “floor,” and additional damages allowed. ISSUES: 1. Can a jury award damages for an insurer’s bad faith in excess of the amount of the stipulated covenant judgment? YES 2. Can a trial court admit evidence of insurance liability reserves in a bad faith action? YES 3. *Note: Other evidentiary and procedural issues were addressed by the court in its decision but not analyzed in this summary* FACTS: This appeal arose out of an automobile accident on August 23, 2000. Patrick Kenny was driving a 1994 Volkswagen Passat owned by one of the passengers, when he rear-ended a cement truck. The accident severely injured his three passengers: Ryan Miller, Ashley Bethards, and Cassandra Peterson. Kenny was covered for liability under the insurance policy issued to Peterson's parents by Safeco Insurance Company. Safeco defended Kenny without a reservation of rights. Reprinted courtesy of Mark Scheer, Scheer & Zehnder LLP and Brent Williams-Ruth, Scheer & Zehnder LLP Mr. Scheer may be contacted at mscheer@scheerlaw.com; Mr. Williams-Ruth may be contacted at bwilliamsruth@scheerlaw.com Read the court decision
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Construction Law Alert: Concrete Supplier Botches Concrete Mix, Gets Thrashed By Court of Appeal for Trying to Blame Third Party

January 21, 2015 — Steven M. Cvitanovic and Whitney L. Stefko – Haight Brown & Bonesteel LLP
On January 8, 2015, the Second Appellate district affirmed judgment of the lower court in State Ready Mix Inc. v. Moffatt & Nichol, and barred a concrete supplier from blaming a third party consultant for the concrete supplier's failure to deliver concrete that met project specifications. In 2012, Major Engineering Marine, Inc. was hired by a project manager to construct a harbor pier in the Channel Islands Harbor. Major hired State Ready Mix, Inc. to supply the concrete for the project. State wrote and submitted a concrete mix design and, at the request of Major, civil engineer Moffatt & Nichol reviewed and approved State's mix design at no charge. Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and Whitney L. Stefko, Haight Brown & Bonesteel LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com; Ms. Stefko may be contacted at wstefko@hbblaw.com Read the court decision
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A Few Things You Might Consider Doing Instead of Binging on Netflix

April 13, 2020 — Garret Murai - California Construction Law Blog
Governments throughout the world have issued “shelter in place” orders requiring that residents stay at home except for “essential” purposes. As a result, in the United States, more than a third of Americans have been ordered to stay at home. This, in turn, has had a direct impact on construction projects which have slowed or have been temporarily shuttered altogether, and it will (not may) have an impact on the flow of project funds. So what can project owners and contractors do? We’ve got a few tips. 1. Read Your Contract, Paying Particular Attention to Force Majeure, No Damages for Delay and Notice Provisions For the most part, with the exception of statutory rights and remedies which we will discuss below, your contract spells out your rights and remedies should the proverbial “S” hit the fan. It is, in other words, the rules you agreed to, and you should know what those rules provide. Three provisions you should look for, and if they’re in your contract, you should review carefully are: (1) Force majeure provisions; (2) No damages for delay provisions; and (3) notice provisions. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

New York Considers Amendments to Construction Industry Wage Laws that Would Impose Significant Burden Upon Contractors

August 04, 2021 — Richard W. Brown & Michael D. Angotti - Saxe Doernberger & Vita, P.C.
A bill that would amend the the wage and hour requirements of the New York Labor Law was recently passed by the New York State Legislature and is expected to be signed by Governor Cuomo. Bill Number S2766C (the “Bill”) is intended to protect construction workers against wage theft. However, it places a heavy burden on contractors to police the payroll practices of its downstream subcontractors and exposes them to potentially significant liability for the wage and hour violations of their subcontractors. The proposed Bill would make a contractor or upstream subcontractor jointly and severally liable for any wages owed to employees of their subcontractors. The Bill allows for a private right of action for such subcontractor’s employee (or such employee’s representative) to bring a civil or administrative action seeking payment of unpaid wages owed pursuant to Section 198 of the New York Labor Law. In such an action against a subcontractor for unpaid wages, the contractor or upstream subcontractor is not only jointly and severally liable for any unpaid wages, but also for the prevailing claimant’s reasonable attorney fees, prejudgment interest, and, absent a good faith defense, liquidated damages equal to the amount of the wages owed. Reprinted courtesy of Richard W. Brown, Saxe Doernberger & Vita, P.C. and Michael D. Angotti, Saxe Doernberger & Vita, P.C. Mr. Brown may be contacted at RBrown@sdvlaw.com Mr. Angotti may be contacted at MAngotti@sdvlaw.com Read the court decision
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Alleged Negligent Misrepresentation on Condition of Home is Not an Occurrence Causing Property Damage

December 17, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The court found that even if the insured's negligent misrepresentations constituted an accident, the disclosures did not cause physical damage to the property. Wood v. USAA Cas. Ins. Co., 2024 U.S. Dist. LEXIS 180624 (D. S.C. Sept. 12, 2024). The insured, Clinton Wood, purchased a townhome in January 2014. After the purchase, Wood experienced leaks and significant water intrusion, as did other townhome owners in the same development. Wood and the other owners retained an engineer to evaluate the cause of the water damage. The engineer determined that the water intrusion was caused by defects in the design and construction of the residence. The engineer told Wood that the proposed repairs would not adequately address and resolve the water intrusion and leaks, and that the problems would continue even if repairs were made. 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

Lewis Brisbois Successfully Concludes Privacy Dispute for Comedian Kathy Griffin Following Calif. Supreme Court Denial of Review

November 19, 2021 — Lewis Brisbois
Los Angeles, Calif. (October 18, 2021) - On October 13, 2021, the California Supreme Court declined to review a published, unanimous opinion of the Court of Appeal in favor of comedian Kathy Griffin and her husband, Randy Bick. The plaintiff-appellants claimed Ms. Griffin and Mr. Bick violated their privacy rights by using home security cameras to record “every move and every communication” in the plaintiffs’ private back yard. Ms. Griffin and Mr. Bick maintained that the lawsuit was filed by their neighbors in retaliation after the husband directed what the Court of Appeal described as “an expletive-laden rant” at Ms. Griffin and Mr. Bick. The neighbor's rant was recorded by security cameras and reported in the media, as well as publicized during Ms. Griffin’s performances at the Dolby Theater. In the trial court, Ms. Griffin and Mr. Bick successfully moved for summary adjudication of the plaintiffs’ privacy causes of action. In July 2021, the Court of Appeal affirmed, calling the appellants’ claims “hyperbole.” Read the court decision
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Reprinted courtesy of Lewis Brisbois

U.S. Tornadoes, Hail Cost Insurers $1 Billion in June

July 09, 2014 — Kelly Gilblom – Bloomberg
Tornadoes, hail and windstorms that pounded the U.S. from the Rocky Mountains to the Tennessee Valley last month will probably cost insurers more than $1 billion, Aon Plc said in a report. Hailstorms and winds greater than 90 miles an hour (145 kilometers) in June caused billions of dollars of economic losses, led by a full week of storms early in the month, the London-based insurance broker said today. More than 300 tornadoes hit the U.S. last month, compared with 125 a year earlier and 111 in June 2012, according to preliminary data from the National Weather Service’s Storm Prediction Center. May, June and July tend to be the worst months for twisters, it said. Severe weather from June 3 to June 9 this year killed three people and led to more than 100,000 claims, Aon said. Later in the month, “hail and winds gusting to hurricane strength tracked eastward,” the broker said in its report. The storm “shattered windows, punctured roofs and downed trees onto homes, structures and vehicles.” Read the court decision
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Reprinted courtesy of Kelly Gilblom, Bloomberg
Ms. Gilblom may be contacted at kgilblom@bloomberg.net

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