Fairfield Connecticut Building Expert Directory

Texas Court Requires Insurer to Defend GC Despite Breach of Contract Exclusion

December 19, 2018 — Ashley L. Cooper - Saxe Doernberger & Vita, P.C.
In Mt. Hawley Insurance Co. v. Slay Engineering, et al.,1 a Texas federal court ruled in favor of a general contractor, finding that its insurer had a duty to defend it in a construction defect case filed by the owner. The decision adds more clarity to the interpretation of the subcontractor exception to the “Damage to Your Work” exclusion as well as the Breach of Contract exclusion, which has been the subject of several cases coming out of Texas over the past decade. Read the court decision
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Reprinted courtesy of Ashley L. Cooper, Saxe Doernberger & Vita, P.C.
Ms. Cooper may be contacted at alc@sdvlaw.com

Is It Time to Revisit Construction Defects in Kentucky?

December 11, 2013 — CDJ STAFF
The Kentucky Supreme Court ruled in 2010 that faulty workmanship on a construction project could not be considered an accident under a commercial general liability policy. The first reason they cited, according to Carl A. Salisbury of Kilpatrick Townsend & Stockton LLP, was that a majority of states had concluded that “claims of faulty workmanship, standing alone, are not ‘occurrences’ under CGL policies.” Mr. Salisbury points out a problem with that: “an overwhelming majority of state Supreme Courts that have considered the question have held that faulty workmanship can be (and usually is) accidental and, therefore, is a covered ‘occurrence.’’ He also notes that in four states, the legislatures have passed laws confirming that faulty workmanship is an occurrence. The “majority viewpoint” cited by the Kansas Supreme Court is currently held by four other states, while twenty states hold the view that construction defects are accidents and thus occurrences. Since 2010, five states have reversed their stance, coming to what is now the clear majority view, including South Carolina. The Kansas court relied on a South Carolina decision that Mr. Salisbury described as “since repudiated” by “both the legislature and Supreme Court of that state.” Read the court decision
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Ninth Circuit Reverses Grant of Summary Judgment to Insurer For Fortuitous Loss

July 01, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The Ninth Circuit reversed the district court's issuance of summary judgment regarding coverage for damages when the insured's plant had to be shut down due to an accident. Ingenco Holdings, LLC v. Ace American Ins. Co., 2019 U.S. App. LEXIS 10946 (9th Cir. April 15, 2019). Ingenco operated a gas purification plant which converted raw landfill gas into usable natural gas. The final step in the purification process involved the removal of excess nitrogen from the landfill gas. The gas was directed through adsorbent beads, to which nitrogen adhered, contained within pressure vessels.The beads could not withstand the direct pressure of the landfill gas inflow. which, if untreated, could grind the beads down into dust. To reduce the force of the gas flow on the beads, a "diffuser basket" was suspended from the top of each bead-filled pressure vessel. The diffuser basket acted as a shield that prevented the full force of the incoming landfill gas from striking the beads directly. In 2010, metal brackets securing a diffiuser basket broke. This resulted in damage to other components and an eventual shutdown of the entire facility. The plant remained idle for several months as Ingenco investigated alternative nitrogen filtration options and undertook repairs. 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

Nevada Judge says Class Analysis Not Needed in Construction Defect Case

October 22, 2014 — Beverley BevenFlorez-CDJ STAFF
According to the National Law Journal, “The Nevada Supreme Court has ruled it neither arbitrary nor capricious for a trial judge to decline to perform a class-action analysis in a lawsuit filed by a homeowners’ association against a general contractor over alleged defects.” Justice Michael Douglas stated, as quoted by the National Law Journal, “The district court was not required to conduct that analysis at this point in the litigation because nothing in the record indicates that the association sought to proceed as a class action.” The general contractor argued that the construction defect law did “not apply because the development’s units were no longer new residences once they were rented as apartments.” However, the justices declared “that the association can pursue its lawsuit for construction defects in common elements owned by multiple units as long as one unit is a new residence.” Read the court decision
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Tender the Defense of a Lawsuit to your Liability Carrier

January 19, 2017 — David Adelstein – Florida Construction Legal Updates
Sometimes you come across a head scratcher. This would be a decision that does not seem to make a whole lot of sense. For instance, if you are sued and you maintain liability insurance that would potentially provide you a defense and indemnification, not notifying your insurance carrier is a head scratcher. You pay substantial dollars towards the premium of that policy. So, not then notifying your carrier about a lawsuit is a head scratcher, and I mean a head scratcher!! If you are sued, not only should the carrier be notified, but the defense of that lawsuit should be tendered to your liability carrier. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

Downtown Sacramento Building Riddled with Defects

July 23, 2014 — Beverley BevenFlorez-CDJ STAFF
The Board of Equalization tower in Sacramento, California has gone through $60 million in repairs to deal with issues such as bats, floods, leaky windows, mold, and glass panels that would “pop off the building with no warning and shatter on the sidewalk,” according to Insurance News. However, an additional $115 million in repairs are planned to deal with “crumbling core plumbing” and “concrete-and-glass exterior,” among other problems. Now, “a Sacramento attorney filed a $50 million tort claim this month, a first step toward suing the tax-collecting department on behalf of employees who say their bosses downplayed the building's ailments and put workers' health at risk.” "Even though my lawyers told me not to say this, I don't think it's safe," board Chairman Jerome Horton told Insurance News. Read the court decision
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New York State Legislature Reintroduces Bills to Extend Mortgage Recording Tax to Mezzanine Debt and Preferred Equity

March 15, 2021 — Steven E. Coury & Marissa Levy - White and Williams
Companion bills in the New York State Legislature, Assembly Bill No. A3139 and Senate Bill No. S3074, if enacted, would subject mezzanine loans and preferred equity investments to the same recording and taxation requirements placed on mortgages. The bills were reintroduced last month after similar bills (S7231/A9041) were introduced in the 2019-2020 legislative session. The prior bills died in committee when last year’s legislative session adjourned. As discussed in our prior alert, the proposed bills would require: (1) a financing statement evidencing any mezzanine debt and/or preferred equity investments related to real property to be filed in the county in which the real property is located and (2) a recording tax, at the same rate as the applicable mortgage recording tax rate (2.80% for commercial mortgages over $500,000 in New York City), to be imposed on the amount of the debt and/or investment at the time the financing statement is filed. The bills contain a limited carve-out for owner-occupied residential cooperatives. Reprinted courtesy of Steven E. Coury, White and Williams and Marissa Levy, White and Williams Mr. Coury may be contacted at courys@whiteandwilliams.com Ms. Levy may be contacted at levmp@whiteandwilliams.com Read the court decision
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Sustainability Puts Down Roots in Real Estate

January 27, 2020 — Stephanie Amaru - Gravel2Gavel Construction & Real Estate Law Blog
Sustainability has evolved from a passing trend or niche preference into an undeniable, growing driver of the real estate market. This is particularly true as millennials comprise an increasing proportion of the workforce, home-buying population, and individuals influencing the future of real estate development in the United States. If anything illustrates the significance of younger generations’ increasing interest in sustainability, it is the Global Climate Strike that drew participation of many thousands of young people, with 2,500 events scheduled in over 150 countries. In New York City, 1.1 million public school students were excused from school to join the strike in an event planned to precede the UN Summit, which itself was intended to push countries toward a commitment to faster transition to renewable energy and stricter climate targets. While both policymakers and citizens of previous generations have been split on their willingness to address global climate change with urgency, younger generations are feeling a stronger sense of responsibility for curbing the world’s trajectory towards a climate catastrophe, which will be inherited by them and their children. This has manifested in action that promotes awareness of and political action with respect to these issues—such as the Global Climate Strike—as well as evolving habits and preferences in both consumer goods and real estate. Greener Space In recent years, real estate developers have recognized that there is a market for “greener” developments that reduce annual expenditures on buildings, whether it be through small spaces requiring less electricity and promoting energy efficiency, or through renewable energy options such as solar photovoltaic power. Some real estate developers have chosen to install these options themselves, while others seek out sustainable financing options to cover the costs of renewable energy. If installing renewable energy is too costly, real estate developers will seek out more cost-effective locations for their brick-and-mortar operations. Read the court decision
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Reprinted courtesy of Stephanie Amaru, Pillsbury
Ms. Amaru may be contacted at stephanie.amaru@pillsburylaw.com

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