FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

GA Federal Court Holds That Jury, Not Judge, Generally Must Decide Whether Notice Was Given “As Soon as Practicable” Under First-Party Property Damage Policies

November 01, 2021 — Edward M. Koch & Lynndon K. Groff - White and Williams
Insurance policies covering first-party property damage often require insureds to notify insurers of a loss “as soon as practicable.” Where an insured may or may not have given notice “as soon as practicable,” the issue arises as to who should determine whether the insured complied with this requirement: the judge or the jury? On October 6, 2021, the United States District Court for the Middle District of Georgia addressed this issue in Vintage Hospitality Group LLC v. National Trust Insurance Company, Case No. 3:20-cv-90-CDL, 2021 U.S. Dist. LEXIS 192651 (M.D. Ga. Oct. 6, 2021). In Vintage Hospitality, a July 2018 hailstorm damaged the roof of a hotel owned by the policyholder. The policyholder did not discover leaks from the hotel roof until two months later, in September 2018. The policyholder, not realizing that the hailstorm had caused the leaks, unsuccessfully attempted to repair the leaks. Eventually, in February 2020—19 months after the hailstorm and 17 months after the policyholder discovered the leaks—the policyholder hired a construction company to evaluate the roof. It was not until then that the policyholder learned that the hotel had sustained hail damage from the July 2018 storm. The policyholder notified its July 2018 first-party property damage insurer a few days later. Reprinted courtesy of Edward M. Koch, White and Williams and Lynndon K. Groff, White and Williams Mr. Koch may be contacted at koche@whiteandwilliams.com Mr. Groff may be contacted at groffl@whiteandwilliams.com Read the court decision
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The DOL Claims Most Independent Contractors Are Employees

August 04, 2015 — Craig Martin – Construction Contract Advisor
On July 15, 2015, the Department of Labor issued an Administrator’s Interpretation asserting that most independent contractors are actually employees under the Fair Labor Standards Act. The DOL claims that the FLSA’s broad definition of employment and “suffer to work” standard under the FLSA requires that most workers be treated as employees. The certainly appears to be the DOL’s warning shot over the bow and companies using independent contractors should take heed. The most startling aspect of the Administrative Interpretation is the application of the economic realities test in concluding that workers who are economically dependent on the company, regardless of skill level, are employees under the FLSA’s broad definition of employee. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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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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Insurance Client Alert: Mere Mailing of Policy and Renewals Into California is Not Sufficient Basis for Jurisdiction Over Bad Faith Lawsuit

January 28, 2015 — Valerie A. Moore and Christopher Kendrick – Haight Brown & Bonesteel LLP
In Greenwell v. Auto-Owners Ins. Co. (No. C074546, filed 1/27/15), a California appeals court held that the use of a mailing address to send policies and renewals into California did not support jurisdiction for a California resident's bad faith lawsuit against a Michigan insurer over property coverage for a fire loss to a building in Arkansas. In Greenwell, the insured was a California resident engaged in real estate investment. He purchased an apartment building in Little Rock, Arkansas. Using the services of an insurance broker in Little Rock, he purchased a package of general liability and commercial property insurance for the building from Auto-Owners Insurance Company, a Michigan insurer not licensed in California. The policy listed the insured's business address in California, the policy was mailed there, and renewed three times via the insured's California address. Reprinted courtesy of Valerie A. Moore, Haight Brown & Bonesteel LLP and Christopher Kendrick, Haight Brown & Bonesteel LLP Ms. Moore may be contacted at vmoore@hbblaw.com, Mr. Kendrick may be contacted at ckendrick@hbblaw.com Read the court decision
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Spearin Doctrine 100 Years Old and Still Thriving in the Design-Build Delivery World

January 09, 2019 — John P. Ahlers - Ahlers Cressman & Sleight PLLC
The Supreme Court’s ruling in United States v. Spearin, [1] also referred to as the Spearin doctrine, is a landmark construction decision.[2] The Spearin doctrine provides that the Owner impliedly warrants the information, plans and specifications which an Owner provides to a General Contractor. If a Contractor is bound to build according to plans and specifications prepared by the Owner, the Contractor will not be responsible for the consequences of defects in the plans and specifications. Read the court decision
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Reprinted courtesy of John P. Ahlers, Ahlers Cressman & Sleight PLLC
Mr. Ahlers may be contacted at john.ahlers@acslawyers.com

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Attorney's Erroneous Conclusion that Limitations Period Had Not Expired Was Not Grounds For Relief Under C.C.P. § 473(b)

February 27, 2019 — David W. Evans & Stephen J. Squillario
In Jackson v. Kaiser Foundation Hospitals, Inc. (2/8/19 No. A150833), the First District Court of Appeal affirmed the trial court’s denial of a motion for relief from a voluntary dismissal, without prejudice, filed by the plaintiff based on the erroneous conclusion of an attorney who she had consulted (but who had not yet appeared as counsel in her case) that the applicable statute of limitations had not yet expired. In reality, the limitations period had expired on the same date plaintiff had filed her complaint in propria persona. The plaintiff later retained the attorney on a limited basis to present the motion for relief pursuant to Code of Civil Procedure § 473(b) based on the attorney’s affidavit of fault. Therein, the attorney testified that he had advised the plaintiff to dismiss her action voluntarily based on a misinterpretation of the applicable limitations period, which the attorney characterized as having been based on his “mistake, inadvertence, surprise, or neglect.” Section 473 provides two distinct provisions for relief from default or dismissal – one is discretionary, while the other is mandatory. Discretionary relief is available in the case of an attorney’s mistake, inadvertence, surprise, or excusable neglect. In contrast, mandatory relief is available where the resulting dismissal was caused by an attorney’s mistake, whether or not excusable. In denying the plaintiff’s motion, the trial court reasoned that the plaintiff could not rely upon Section 473(b) because (1) the attorney did not represent the plaintiff at the time and (2) this provision did not apply to the voluntary dismissal of an action without prejudice. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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The Business of Engineering: An Interview with Matthew Loos

July 15, 2019 — Aarni Heiskanen - AEC Business
Matthew Loos is an experienced project manager in the civil engineering industry. He works as a project engineer at Jones|Carter in Fort Worth, Texas. In this interview, we discuss Matt’s new book, The Business of Engineering. It is not very common that an engineer writes a non-technical book. What inspired you to do so? Have you ever gotten an idea stuck in your head that you just couldn’t let go of? A time when you couldn’t go to sleep because the idea was consistently begging for your attention? That’s what happened to me. The idea for this book hits me right before bed, as most good ideas do. I couldn’t go to sleep after the idea struck me. I spent half of the night writing the chapters of this book in my mind. I had been thinking about the idea of engineering and how it relates to other career fields, even the non-technical ones. I was disenchanted with the trifling number of classes I took that prepared me for the business world. These were the initial thoughts that eventually led me down the road into thinking about engineering as a profession going forward. 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

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The Case For Designers Shouldering More Legal Responsibility

November 21, 2018 — Richard Korman - Engineering News-Record
Ujjval Vyas is dignified, articulate and persistent. In past years he earned a law degree and a PhD where his thesis concerned Philip Johnson and architectural modernism. He is a founder of a hydrogen energy company. He is also leading a crusade, largely by himself, advocating that designers should be held to a "clients come first" approach applied to other professionals—an idea that would burden engineers and architects with the weight of vastly increased legal liability. The reactions to his ideas in the past have ranged from scornful to sympathetic. Read the court decision
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Reprinted courtesy of Richard Korman, ENR
Mr. Korman may be contacted at kormanr@enr.com

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