Fairfield Connecticut Building Expert Directory

“A No-Lose Proposition?”

October 07, 2024 — Daniel Lund III - Lexology
A Miller Act payment bond surety and its principal general contractor both sued in federal court in New Orleans by a project subcontractor sought to compel arbitration the claims against both contractor and surety based on an indisputably enforceable arbitration clause in the subcontract. This was urged to avoid separate actions against the contractor (arbitration) and its surety (litigation), even though the surety was not a party to the subcontract and, therefore, not a party to the arbitration clause. In the face of the lack of an express agreement to arbitrate, the contractor and contractor argued that “no federal statute or policy prohibits all of Plaintiff’s claims from proceeding to arbitration….” Additionally, those parties urged that the surety should be allowed to affirmatively compel arbitration because the surety “would otherwise have the ability to assert the right to compel arbitration as a defense….” The New Orleans federal district court was unpersuaded:

“[D]istrict courts within this circuit have recognized that ‘Miller Act claims by a subcontractor for unpaid labor and materials are separate and distinct from those for general breach of contract… [and] arbitration and Miller Act suits, are not, per se, inconsistent with one another.’…[A]bsent express contractual intent to subject Miller Act claims to arbitration, the court [will] not force the parties to arbitrate claims against nonparties to the contract at issue…. [C]laims against a surety, which was a non-signatory to the contract, would not be subject to arbitration without any contractual basis to do so.”

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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

Keep It Simple: Summarize (Voluminous Evidence, That Is...)

October 02, 2023 — Steve Swart - The Dispute Resolver
"The most complex analyses grow beautifully simple as they become public objects.” Philip Rieff, Fellow Teachers (1973), quoted in JOHN BARTLETT, BARTLETT’S FAMILIAR QUOTATIONS 800 (Geoffrey O’Brien gen. ed., 18th ed. 2012) In a recent ABA Forum on Construction Law Webinar, a panelist with substantial experience as an arbitrator explained that documents are the most important evidence in a construction dispute. Fact-finders, she said, focus on contemporaneous project records more than witness testimony to vet what happened. But, even a small to mid-sized construction project can generate millions of pages of documents. That is particularly true when disputes involve loss of productivity, delay, acceleration, and disruption. The volume of records related to entitlement and damages (e.g., timesheets, accounting, equipment logs, schedule files, meeting minutes, etc.) can overwhelm and confuse — not to mention bore — the fact finder. Read the court decision
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Reprinted courtesy of Steve Swart, Williams Mullen
Mr. Swart may be contacted at sswart@williamsmullen.com

John Paulson’s $1 Billion Caribbean Empire Faces Betrayal

November 27, 2023 — Jim Wyss & Tom Maloney - Bloomberg
In the decade since hedge fund billionaire John Paulson took a grand gamble on Puerto Rico, he’s faced the wrath of the markets and mother nature. He’s navigated hurricanes, earthquakes, the pandemic and the largest municipal bankruptcy in US history to amass a portfolio of luxury hotels and resorts, high-end office blocks, and auto dealerships catering to the island’s rich. Now, just a few months after breaking ground on one of San Juan’s tallest and most exclusive residential towers, Paulson is facing a new wave of threats: lawsuits that strike at the heart of his Caribbean empire. Reprinted courtesy of Jim Wyss, Bloomberg and Tom Maloney, Bloomberg Read the court decision
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Foreclosing Junior Lienholders and Recording A Lis Pendens

July 13, 2020 — David Adelstein - Florida Construction Legal Updates
When you foreclose on a construction lien, there are a couple of pointers to remember. First, you want to make sure you include junior lienholders or interests you are looking to foreclose (or you want to be in a position to amend the foreclosure lawsuit to identify later). The reason being is you want to foreclose their interests to the property. “[J]unior interest holders are a narrow class of mortgagees whose interest in the underlying property is recorded after the foreclosing contractor’s claim of lien is filed. This class is routinely joined to the construction lien enforcement action under section 713.26 to allow the construction lienor to foreclose out the junior lienholder’s interest in the property encumbered by the construction lien.” See Decks N Sunch Marine, infra. Second, you want to record a lis pendens with the lien foreclosure lawsuit. Failure to do so could be problematic because Florida Statute s. 713.22(1) provides in part, “A lien that has been continued beyond the 1-year period by the commencement of an action is not enforceable against creditors or subsequent purchasers for a valuable consideration and without notice, unless a notice of lis pendens is recorded.” 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

Virginia Allows Condominium Association’s Insurer to Subrogate Against a Condominium Tenant

August 10, 2020 — Gus Sara - The Subrogation Strategist
In Erie Insurance Exchange v. Alba, Rec. No. 190389, 2020 Va. LEXIS 53, the Supreme Court of Virginia considered whether the trial court erred in finding that a condominium association’s property insurance provider waived its right of subrogation against a tenant of an individual unit owner. The Supreme Court reversed the lower court’s decision, holding that the insurance policy only named unit owners as additional insureds, not tenants, and thus the subrogation waiver in the insurance policy did not apply to tenants. The court also found that the condominium association’s governing documents provided no protections to the unit owner’s tenant because the tenant was not a party to those documents. This case establishes that, in Virginia, a condominium association’s insurance carrier can subrogate against a unit owner’s tenant where the tenant is not identified as an additional insured on the policy. The Alba case involved a fire at a condominium building originating in a unit occupied by Naomi Alba (Alba), who leased the condominium under a rental agreement with the unit owner, John Sailsman (Sailsman). The agreement explicitly held Alba responsible for her conduct and the conduct of her guests. An addendum to the lease stated that Sailsman’s property insurance only applied to the “dwelling itself” and that Alba was required to purchase renters insurance to protect her personal property. Along with the rental agreement, Alba received the condominium association’s Rules & Regulations, Declarations and Bylaws. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

Traub Lieberman Partner Katie Keller and Associate Steven Hollis Obtain Summary Judgment Based on Plaintiff’s Failure to Comply with Policy Conditions

June 12, 2023 — Kathryn Keller & Steven A. Hollis - Traub Lieberman
Traub Lieberman Partner Katie Keller and Associate Steven Hollis obtained summary judgment on behalf of a major homeowners’ insurer in a breach of contract action in the Circuit Court for the Ninth Judicial Circuit in and for Osceola County, Florida. The underlying claim involved a water loss in the kitchen of the Plaintiff’s property allegedly resulting in substantial damage to the home necessitating renovations throughout the residence. The claim was reported seventeen days after the reported date of loss by Plaintiff’s counsel. The Plaintiff had retained counsel and two vendors before giving notice to the insurer. In addition, the insurer’s field adjuster was not provided the opportunity to inspect the plumbing materials which had been allegedly damaged. Specifically, the bottom panel of the sink kitchen cabinet box had been removed. The insurer retained an engineer, who concluded that the removal of the damaged property hindered the ability of the engineer to determine their conditions prior to removal or whether exposure from waste arm leakage occurred. It was later learned that the damaged plumbing fixtures and the bottom of the cabinets had been thrown out by the contractors, which all happened before the claim was reported to the insurer. The insured also failed to provide a signed, sworn proof of loss within sixty days after the loss. Reprinted courtesy of Kathryn Keller, Traub Lieberman and Steven A. Hollis, Traub Lieberman Ms. Keller may be contacted at kkeller@tlsslaw.com Mr. Hollis may be contacted at shollis@tlsslaw.com Read the court decision
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Certified Question Asks Washington Supreme Court Whether Insurer is Bound by Contradictory Certificate of Insurance

January 21, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The Ninth Circuit certified a question to the Washington Supreme Court as follows:

Under Washington law, is an insurer bound by representations made by its authorized agent in a certificate of insurance with respect to a party's status as an additional insured under a policy issued by the insurer, when the certificate includes language disclaiming its authority and ability to expand coverage?

T-Mobile USA Inc. v. Selective Ins. Co lf Am., 2018 U.S. App. LEXIS 31863 (9th Cir. Nov. 9, 2018). In 2010, T-Mobile entered into a Field Services Agreement (FSA) with Innovative Engineering, Inc. under which Innovative would provide services in connection with the construction of rooftop cellular antennae towers in New York City. The FSA required Innovative to maintain general liability insurance naming T-Mobile as an additional insured, and required that Innovative provide T-Mobile with certificates of insurance documenting the coverage. Innovative obtained coverage from Selective Insurance Company of America. 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

Communicate with the Field to Nip Issues in the Bud

March 16, 2017 — Christopher G. Hill – Construction Law Musings
This past week, I spent some time meeting with clients and generally discussing the day to day operations of construction companies. One common theme of these discussions (and of this construction blog) was the need to deal with problems at a job site early. I have often discussed the contract side of catching things early, and firmly believe that this is the first step to a successful construction project. This post is about the equally important “operational” side of this advice. What do I mean by “operational?” Essentially, while the contract negotiation and drafting tries to anticipate problems that might occur, the operational side deals with problems on a job site as they occur. In short, moving from what might occur (something I as a construction lawyer think about all the time), to what is actually occurring when putting that contract to work. Whether you are a general contractor, owner, subcontractor, or supplier to a construction project, you are likely well aware of the fact that Murphy was an optimist and something will go wrong. How you deal with this fact can be the difference between a successful, profitable project, and one that ends up in litigation (read: not as profitable). However, in order to deal with a problem properly, you need to know about the problem before it explodes. Without this knowledge, a problem could fester and lead to non-payment, subcontractor mechanic’s liens, and other headaches that don’t need to be further mentioned here. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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