FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Court Narrowly Interprets “Faulty Workmanship” Provision

March 28, 2018 — Jeffrey J. Vita and Thersa A. Guertin – SDV Blog
In a recent victory in their home state of Connecticut, Saxe Doernberger & Vita partners, Jeffrey Vita and Theresa Guertin, representing owner-developer 777 Main Street, LLC, overcame a summary judgment motion filed by Liberty Mutual Fire Insurance Company. The Connecticut Superior court refused to adopt the insurer’s broad interpretation of the “faulty workmanship” exclusion in an all-risk builders’ risk insurance policy. In 2014, 777 Main Street, LLC began renovations on the 27-story former Hartford National Bank building in downtown Hartford, converting the property from an office building to a mixed residential and commercial space. During the renovation, a subcontractor hired to perform the cleaning the concrete façade of the building accidentally over-sprayed the cleaning material onto the property’s windows. The subcontractor’s attempts to clean the overspray further damaged the structural integrity and cosmetic look of the windows. As a result, the owner was forced to replace over 1,800 windows, costing millions. Mr. Vita may be contacted at jjv@sdvlaw.com Ms. Guertin may be contacted at tag@sdvlaw.com Read the court decision
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Additional Insured Obligations and the Underlying Lawsuit

October 07, 2016 — David Adelstein – Florida Construction Legal Updates
As a general contractor, you understand the importance of being named an additional insured under your subcontractors’ commercial general liability (CGL) policies. Not only do you want your subcontract to express that a subcontractor’s CGL policy is primary and noncontributory to your policy, but you want it to express that the subcontractor must identify you as an additional insured for ongoing and completed operations. Even with this language, you want the subcontractor to provide you with their additional insured endorsement and, preferably, a primary and noncontributory endorsement. These additional insured obligations are important to any general contractor that has been sued in a construction defect / property damage lawsuit. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dma@katzbarron.com

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Massachusetts Couple Seek to Recuse Judge in Construction Defect Case

September 30, 2011 — CDJ STAFF

After seeing their $1 million jury award overturned on appeal by a judge who called the award “against the weight of evidence and likely due to misapprehension, confusion or passion,” Kathryn and Christian Culley are seeking to have him removed from the case. The Massachusetts Supreme Judicial Court has rejected their claim.

The Culleys claim that Judge Thomas R. Murtagh’s decision was influence by him membership in the Andover Country Club which is represented by the opposing counsel in their construction defect case. Justice Margot G. Botsford had denied the Culley’s request, ruling that they had other remedies available to them.

The SJC noted in their ruling that if the Culleys are alleging judicial misconduct a request must be made to the Commission on Judicial Conduct. Their lawyer plans to file a new motion for recusal with the SJC.

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What Happens When a Secured Creditor Files a Late Claim in an Equity Receivership?

September 28, 2017 — Ben Reeves - Snell & Wilmer Real Estate Litigation Blog
Pitting a receivership court’s inherent equitable powers against pre-existing property rights can lead to some pretty interesting questions. In SEC v. Wells Fargo Bank, N.A., 848 F.3d 1339, 1343-44 (11th Cir. 2017), the Eleventh Circuit recently examined whether a district court’s inherent authority to establish a claims submission process allowed the court to extinguish a security interest in real property based solely upon an untimely proof of claim. Much to the relief of secured creditors, the Eleventh Circuit held that the district court erred, as a matter of law, by extinguishing the creditor’s pre-existing property rights under those circumstances. Introduction Equity vests a district court with “‘broad powers and wide discretion to determine relief in an equity receivership.’” Wells Fargo, 848 F.3d at 1343-44 (quoting SEC v. Elliot, 953 F.2d 1560, 1566 (11th Cir. 1992)). These powers include: (i) establishing procedures for the submission of claims to a receiver, and (ii) setting a claims bar date. Id. at 1344 (citing SEC v. Tipco, Inc., 554 F.2d 710, 711 (5th Cir. 1977)). Read the court decision
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Reprinted courtesy of Ben Reeves, Snell & Wilmer
Mr. Reeves may be contacted at breeves@swlaw.com

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Texas Supreme Court Rules on Contractual Liability Exclusion in Construction Cases

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
The Texas Supreme Court ruled on Ewing v. Amerisure Ins. Co. on January 17th, a “much-anticipated” decision according to Carl A. Salisbury of Kilpatrick Townsend & Stockton LLP. “Construction projects are always the subject of contracts among owners and contractors” Salisbury stated in his article on Lexology.com. The recent decision demonstrates that “an exclusion in the standard Comprehensive Liability Insurance policy that precludes coverage for ‘liabilities assumed under contract’” does not usually “apply to construction contracts.” In 2008, Ewing Construction Company built a set of tennis courts in Corpus Christi, according to Salisbury. “Shortly after construction was complete, according to the school district, ‘the courts started flaking, crumbling, and cracking, rendering them unusable for their intended purpose of hosting competitive tennis events.’” After the school district sued Ewing in state court, Ewing “turned the suit over to Amerisure, its CGL insurer, seeking a defense and indemnity. Amerisure denied all coverage, citing the contractual liability exclusion in its policy. This inspired Ewing to sue the carrier in federal district court for the Southern District of Texas.” After several rulings and appeals, the case eventually reached the Texas Supreme Court: “According to the Ewing court, the contract claims that Ewing failed to perform in a good and workmanlike manner ‘are substantively the same as its claims that Ewing negligently performed under the contract because they contain the same factual allegations and alleged misconduct.’ Failure to perform in a ‘good and workmanlike manner’ is functionally and substantively the same as performing negligently. ‘Accordingly,’ the Ewing court said, ‘we conclude that a general contractor who agrees to perform its construction work in a good and workmanlike manner, without more, does not enlarge its duty to exercise ordinary care in fulfilling its contract, thus it does not ‘assume liability’ for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion.’” Read the court decision
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Real Estate & Construction News Round-Up (08/10/22)

August 29, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
The Senate passes the Inflation Reduction Act, construction costs continue to rise across the U.S., commercial real estate advances the adoption of ESG strategies, and more.

• The recently-passed Inflation Reduction Act of 2022 leaves out the carried interest tax hike, much to the relief of real estate investors worldwide. (Taylor Driscoll, Bisnow)
• Commercial real estate continues to push forward ESG strategies, given the significant carbon footprints left by most office buildings. (Ted Jackson, CFO)
• “Space as a Service” tech company Neighbor, which re-purposes under-utilized real estate into storage for tenants, hits its stride in the post-pandemic landscape as the excess of unprofitable space rises. (The Real Deal)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Building Inspector Jailed for Taking Bribes

September 30, 2011 — CDJ STAFF

The LA Times reports that Raoul Germain, a city Los Angeles building inspector has been sentenced to 21 months in prison after pleading guilty to taking bribes. Germain was caught as part of an FBI sting operation in which he approved work in exchange for thousands of dollars in bribes. The Times notes that that in some cases, Germain never visited the construction sites. Germain was offered a chance to cooperate with investigators. His lawyer, Steve Cron asked the Times, “What do you think happens to someone who cooperates?”

In addition to Germain, another city inspector has pleaded guilty to taking bribes and two more employees of the Department of Building and Safety have been fired in connection with the investigation.

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Jury Trials and Mediation in Philadelphia County: Virtually in Person

July 27, 2020 — Andrew F. Susko, Robert G. Devine & Daniel J. Ferhat - White and Williams LLP
When will the trial court in Philadelphia County be open for jury trials in civil actions? While a precise prediction, given the current state of our trial courts in the middle of the COVID-19 pandemic, is difficult to make, what is known is that the use of virtual technology is likely permanently changing the landscape of civil litigation, including depositions, mediation, and other forms of alternative dispute resolution. Even civil jury trials, at least in the near term and during the pandemic, are being conducted virtually, either by private agreement, or through the courts, as is occurring in Texas and most recently in Florida with its pilot virtual trial program in five of its trial courts. While it is necessary at present for the parties to consent to a virtual trial, courts may ultimately compel the parties’ participation. Regardless, litigants and their counsel are well advised to understand the complexities and manner of a virtual trial. Seasoned trial attorneys have long experienced and are comfortable with virtual depositions bringing distant counsel, parties and witnesses together through technology to present testimony. The use of virtual technology as a means for court arguments and hearings, mediation, and alternative dispute resolution, while novel and emerging as the new normal, is territory where a comfort level can be achieved. And while distinctions most assuredly exist, recent experience has demonstrated that court arguments, mediations and depositions can be conducted effectively remotely and virtually. Legal issues certainly do remain in the context of the deposition of parties to a civil action regarding whether a lawyer’s physical presence in the same room with a party-witness can be demanded, and whether courts would compel a virtual deposition during the COVID-19 pandemic where such physical presence of a party and their attorney could not be achieved. Undoubtedly these issues will be resolved, likely sooner than later, given the scope of the pandemic in certain areas. Reprinted courtesy of White and Williams LLP attorneys Andrew F. Susko, Robert G. Devine and Daniel J. Ferhat Mr. Susko may be contacted at suskoa@whiteandwilliams.com Mr. Devine may be contacted at deviner@whiteandwilliams.com Mr. Ferhat may be contacted at ferhatd@whiteandwilliams.com Read the court decision
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