Fairfield Connecticut Building Expert Directory

Duty to Defend Broadly Applies to Entire Action; Insured Need Not Apportion Defense Costs, Says Maryland Appeals Court

January 27, 2020 — Michael S. Levine & Kevin V. Small - Hunton Insurance Recovery Blog
In a recent decision, the Maryland Court of Special Appeals reiterated that the duty to defend broadly requires a liability insurer to defend an entire lawsuit against its insured, even where only some of the allegations are potentially covered. The court further held that the insured has no obligation to apportion defense costs among multiple implicated policies. The decision, Selective Way Insurance Company v. Nationwide Property and Casualty Insurance Company, et al., can be found here. The coverage litigation arose out of a construction defect case against a general contractor. The general contractor tendered the action to its insurer, Nationwide, which, in turn, filed a declaratory judgment action against the various insurers of construction project subcontractors that had named the general contractor as an additional insured. Ultimately, the court granted a summary judgment motion declaring that all of the subcontractors’ insurers had a duty to defend the general contractor “because the allegations in the underlying lawsuit raised claims that potentially arose from the [s]ubcontractors’ work at the [construction site].” All of the subcontractors’ insurers settled with Nationwide except for one, Selective Way; and the parties proceeded to a jury trial on various issues. The jury found for Nationwide on all issues. Selective Way appealed. Selective Way argued on appeal that even if some of the allegations were covered under its policy, it had no obligation to defend the general contractor because its insureds, the subcontractors, could not have been responsible for all of the losses given the nature of their work. Further, Selective Way contended that if it was responsible for defending the general contractor, it was not responsible for the entire defense, and the general contractor was responsible for apportioning the costs among the various subcontractors. The panel disagreed on both points. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Kevin V. Small, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Small may be contacted at ksmall@HuntonAK.com Read the court decision
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Court Rejects Efforts to Limit Scope of Judgment Creditor’s Direct Action Under Insurance Code Section 11580

May 01, 2019 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Ins. Co. of St. of PA v. Amer. Safety Indemnity Co. (No. B283684, filed 3/1/19) (“ICSOP”), a California appeals court rejected one insurer’s efforts to limit the scope of another insurer’s direct action as a judgment creditor under Insurance Code section 11580(b)(2). In ICSOP, homeowners filed a claim in arbitration against their general contractor alleging damages from subsidence. While the arbitration was pending, the general contractor filed suit against the grading subcontractor seeking indemnity and contribution. The complaint attached the homeowners’ complaint in arbitration pleading damages of $2.3 million, and alleged that the subcontractors had a duty to indemnify for those damages. The arbitrator awarded the homeowners $1.1 million. The general contractor was insured by plaintiff ICSOP, which paid the arbitration award. A default judgment was entered against the grading subcontractor for $1.5 million, that included both the arbitration award plus $356,340 for the general contractor’s attorney’s fees. American Safety insured the grading subcontractor but refused to indemnify ICSOP. ICSOP then sued American Safety on the default judgment, pursuant to Insurance Code section 11580(b). The trial court granted summary judgment for ICSOP and the appeals court affirmed. Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Read the court decision
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How BIM Can Serve Building Owners

September 17, 2018 — Aarni Heiskanen - AEC Business
Building Information Models typically end their active life after the construction phase. An experimental project was initiated to find out whether and how they can serve owners throughout the life cycle of a building. Gradia, the Jyväskylä Educational Consortium, provides education to students of all ages in central Finland. It has around 25,000 students, a staff of 1,100, and buildings with a total floor area of 150,000 square meters. Gradia and a team from Gravicon and XRM Finland carried out a government-supported KIRA-digi experimentation project in 2017 on the use of BIMs for building maintenance and repairs. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

Contractors Liable For Their Subcontractor’s Failure To Pay Its Employees’ Wages And Benefits

November 01, 2022 — Edward O. Pacer & David J. Scriven-Young - ConsensusDocs
Recently, Illinois Governor J.B. Pritzker signed two House Bills that amend the Illinois Wage Payment & Collections Act, 820 ILCS 115 et. seq. (“Wage Act”), to provide greater protection for individuals working in the construction trades against wage theft in a defined class of projects. Pursuant to this new law, every general contractor, construction manager, or “primary contractor,” working on the projects included in the Bill’s purview will be liable for wages that have not been paid by a subcontractor or lower-tier subcontractor on any contract entered into after July 1, 2022, together with unpaid fringe benefits plus attorneys’ fees and costs that are incurred by the employee in bringing an action under the Wage Act. This new wage theft law follows several other states that have considered and passed similar legislation. These amendments to the Wage Act apply to a primary contractor engaged in “erection, construction, alteration, or repair of a building structure, or other private work.” However, there are important limitations to the amendment’s applicability. The amendment does not apply to projects under contract with state or local government, or to general contractors that are parties to a collective bargaining agreement on a project where the work is being performed. Additionally, the amendment does not apply to primary contractors who are doing work with a value of less than $20,000, or work that involves only the altering or repairing of an existing single-family dwelling or single residential unit in a multi-unit building. Reprinted courtesy of Edward O. Pacer, Peckar & Abramson, P.C. (ConsensusDocs) and David J. Scriven-Young, Peckar & Abramson, P.C. (ConsensusDocs) Mr. Pacer may be contacted at epacer@pecklaw.com Mr. Scriven-Young may be contacted at dscriven-young@pecklaw.com Read the court decision
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Presenting a “Total Time” Delay Claim Is Not Sufficient

September 12, 2022 — David Adelstein - Florida Construction Legal Updates
When presenting a delay-type of claim on a construction project, a claimant MUST be in a position to properly PROVE the claim. Trying to present a delay claim loosey-goosey is not a recipe for success. In fact, it can be a recipe for an easy loss. This is not what you want. To combat this, make sure you engage a delay expert that understands delay methodologies and how to calculate delay and do NOT present a total time claim. Presenting a delay claim using a total time approach, discussed below, makes it too easy to attack the flaws and credibility of the approach. Per the discussion of the case below, a total time claim with a contractor that used its project manager, versus a delay expert, to support its claim turned the contractor’s claim into a loss. In French Construction, LLC v. Department of Veteran Affairs, 2022 WL 3134507, CBCA 6490 (CBCA 2022), a contractor submitted a delay claim to the government for almost $400,000. The contractor was hired to construct a two-story corridor to connect hospital buildings. The contractor was required to be complete within 365 days. It was not. The contractor was seeking 419 days of delay from the government. The contractor’s “delay expert” was its project manager who compared the contractor’s as-planned schedule to an as-built schedule he prepared for the claim. 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

Arizona Court Determines Statute of Limitations Applicable to a Claim for Reformation of a Deed of Trust (and a Related Claim for Declaratory Judgment)

October 16, 2018 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog
In a recent Arizona Court of Appeals case, Deutsche Bank National Trust Co. v. Pheasant Grove LLC, 798 Ariz. Adv. Rep. 15 (August 23, 2018), the Court of Appeals addressed the question of what statute of limitations was applicable to a declaratory judgment claim. In that case, a bank’s deed of trust inadvertently omitted one of the lots that was supposed to secure that bank’s loan. The deed of trust should have covered lots 8 and 9, but by its terms covered only lot 8. A different bank subsequently recorded a deed of trust that encumbered lot 9. In connection with the second bank’s foreclosure of its deed of trust, the first bank sought reformation and a declaratory judgment with regard to its deed of trust, seeking to have that deed of trust cover both lots 8 and 9, as intended. The trial court determined that the first bank’s reformation claim was filed too late, and also determined that the declaratory judgment claim was filed too late, beyond the applicable statute of limitations. Read the court decision
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Reprinted courtesy of Kevin J. Parker, Snell & Wilmer
Mr. Parker may be contacted at kparker@swlaw.com

September 04, 2018 — William G. Baumgaertner & Denis J. Moriarty - Haight Brown & Bonesteel LLP
Partner Denis Moriarty and Of Counsel William Baumgaertner were selected by their peers for inclusion in The Best Lawyers in America© 2019. Mr. Moriarty has been listed for his work in insurance law, and Mr. Baumgaertner has been listed for his defendants’ and plaintiffs’ work in personal injury and product liability litigation. Reprinted courtesy of William G. Baumgaertner, Haight Brown & Bonesteel LLP and Denis J. Moriarty, Haight Brown & Bonesteel LLP Mr. Baumgaertner may be contacted at wbaum@hbblaw.com Mr. Moriarty may be contacted at dmoriarty@hbblaw.com Read the court decision
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Washington Court Denies Subcontractor’s Claim Based on Contractual Change and Notice Provisions

January 29, 2024 — Wendy Rosenstein - Ahlers Cressman & Sleight PLLC
The recent unpublished case, Cascade Civil Construction, LLC v. Jackson Dean Construction, Inc., et al.,[1] provides a legal justification for contractors to require a directive or change order in advance of performing changed work—thereby preventing the party who requested the changed work from later arguing that notice provisions were not complied with. In the case, Jackson Dean, the prime contractor, hired Cascade to perform excavation work on a project to build a new Costco Corporate headquarters. Due to the Covid-19 pandemic and other issues, Jackson Dean directed resequencing, which required Cascade to perform excavation concurrent to dewatering. Jackson Dean also required deeper-than-planned excavation under one of the buildings. Read the court decision
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Reprinted courtesy of Wendy Rosenstein, Ahlers Cressman & Sleight PLLC
Ms. Rosenstein may be contacted at wendy.rosenstein@acslawyers.com

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