Fairfield Connecticut Building Expert Directory

Duty to Defend Construction Defect Case Triggered by Complaint's Allegations

August 20, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The subcontractor's insurer could not escape contributing to defense costs of its insured when coverage was possible based upon the underlying complaint's allegations. Seneca Ins. Co. v. James River Ins. Co., 2014 U.S. Dist. LEXIS 97156 (D. Ore. July 17, 2014). The underlying action alleged construction defects in a 60-unit complex located in Seaside, Oregon. S.D. Deacon Corp. was the general contractor and contracted with the owners association to reconstruct portions of the building, including the curtain wall. Deacon subcontracted with Superwall Design, LLP for work on the curtain wall renovation. At some point not specified in the underlying complaint, the Association notified Deacon of construction defects in the curtain wall renovation. Deacon investigated and concluded that the alleged property damage was the result of inadequate usage of materials, violations of state and local building codes, and violations of relevant industry standards relating to the work performed by Superwall. Deacon contended that the problems were caused by Superwall's faulty workmanship. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Florida “Property Damage” caused by an “Occurrence” and “Your Work” Exclusion

July 23, 2014 — Scott Patterson - CD Coverage
In J.B.D. Construction, Inc. v. Mid-Continent Casualty Co., * Fed.Appx. *, 2014 WL 3377690 (11th Cir. 2014), claimant property owner Sun City contracted with insured general contractor J.B.D. for the construction of a fitness center. The fitness center was to be physically connected to an existing Sun City building. J.B.D. utilized subcontractors for some of the work. Shortly after completion, leaks developed in the fitness center’s roof, windows and doors which J.B.D. attempted to fix. After Sun City refused to make the final contract payment, J.B.D. sued Sun City for contract amounts owed. Sun City counterclaimed for the construction defects, alleged damage to the fitness center and other property. J.B.D. tendered defense of the counterclaim to its CGL insurer Mid-Continent. After Mid-Continent failed to agree to defend, J.B.D. settled with Sun City, paying Sun City $182K. Following several demands from J.B.D. for reimbursement of defense costs and the settlement amount, Mid-Continent tendered the defense costs minus a deductible. J.B.D. then sued Mid-Continent for breach of duties to defend and indemnify. On cross motions for summary judgment, the federal district trial court entered judgment for Mid-Continent, finding no duties to defend or indemnify. On appeal, the Eleventh Circuit reversed on the duty to defend while affirming on the duty to indemnify. Applying Florida law, the court first held that the defective work, including the defective installation of the fitness center’s windows, doors, and roof, did not constitute “property damage.” Thus, the costs to repair or replace the defective work did not constitute damages because of “property damage.” The court next held that, while damage to other portions of the fitness center would constitute “property damage” caused by an “occurrence,” all such “property damage” fell within the “your work” exclusion. Read the court decision
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Reprinted courtesy of Scott Patterson, CD Coverage

Illinois Federal Court Applies Insurer-Friendly “Mutual Exclusive Theories” Test To Independent Counsel Analysis

November 09, 2020 — Jeremy S. Macklin - Traub Lieberman Insurance Law Blog
Insureds often request independent counsel when insurers agree to provide a defense subject to a reservation of rights, pursuant to which an insurer takes the position that certain damages may not be indemnifiable. Requests for independent counsel are often rooted in fear that a defense attorney who has a relationship with the insurer may be incentivized to defend the insured in a way that maximizes the potential for the insurer to succeed on its coverage defenses. As explained by the Illinois Supreme Court in Maryland Cas. Co. v. Peppers, 355 N.E.2d 24 (Ill. 1976), when a conflict of interest arises between an insurer and its insured, the attorney appointed by the insurer is faced with serious ethical questions and the insured is entitled to its own attorney. Illinois courts generally follow the rule that an insured is entitled to independent counsel upon a showing of an actual conflict. In Builders Concrete Servs., LLC v. Westfield Nat’l Ins. Co., No. 19 C 7792, 2020 WL 5518474 (N.D. Ill. Sept. 14, 2020), the U.S. District Court for the Northern District of Illinois recently addressed a dispute between an insurer and its insured about independent counsel. Westfield insured Builders Concrete Services (BCS). Focus Construction hired BCS as a subcontractor to perform concrete work on a new apartment building. BCS’ work included pouring concrete for structural columns, one of which buckled and failed. BCS sued Focus Construction for withholding payment, and Focus Construction counter-sued for breach of contract and negligence relating to BCS’ alleged faulty work that caused the column to fall. Focus Construction’s counterclaim alleged that the column failure damaged other parts of the building on which Builders did not perform work. Read the court decision
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Reprinted courtesy of Jeremy S. Macklin, Traub Lieberman
Mr. Macklin may be contacted at jmacklin@tlsslaw.com

Consider Arbitration Provision in Homebuilder’s Warranty and Purchase-and-Sale Agreement

November 18, 2024 — David Adelstein - Florida Construction Legal Updates
When you enter into a contract with a homebuilder, particularly a tract homebuilder, please consider two things when it comes to dispute resolution: (1) your purchase-and-sale agreement likely contains an arbitration provision, and (2) your limited warranty agreement you get in connection with closing likely also reinforces the arbitration provision, especially with warranty claims governed by the limited warranty agreement. This dispute resolution is important because it means the homebuilder wants disputes resolved through the arbitration process and NOT through the litigation process (where the nature of disputes and allegations are public). Look, there are pros and cons with arbitration, no different than litigation. Arbitrating a dispute is not necessarily a bad thing, and with certain disputes, ideal. There is no right to appeal in arbitration, but the dispute should resolve itself quicker than litigation, and you’ll have more control over the decision maker, i.e., the arbitrator. 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

Construction Goes Green in Orange County

December 04, 2013 — CDJ STAFF
Construction has completed on ParkLanding, which is the first residential project in Orange County with a green roof. Developed in partnership with the City of Buena Park Redevelopment Agency, the project replaces an abandoned 2-acre site with affordable apartments. The design was done by Newport Beach-based Newman Garrison + Partners. During the design process, attention was paid to sustainable element, including better performing insulation, and more efficient HVAC, electrical, and plumbing systems. The development was designed with the intention of achieving a LEED Gold rating. Read the court decision
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Reprinted courtesy of

Pay Loss Provision Does Not Preclude Assignment of Post-Loss Claim

July 30, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The court determined that a policy's loss payment provision did not bar a post-loss assignment. One Call Prop. Servs. v. Sec. First Ins. Co., 2015 Fl. App. LEXIS 7643 (Fla. Ct. App. May 20, 2015). After One Cell performed emergency water removal for the insured, the insured assigned his rights to policy proceeds as payment. One Cell alleged that Security First refused to reimburse the insured adequately for the services provided. One Cell filed suit, and Security First moved to dismiss. The trial court granted the motion based upon the policy's non-assignment provision. One Cell appealed. One Cell argued post-loss assignments were valid under Florida law even when the policy contained an anti-assignment provision, and the right to payment accrued on the date of the loss. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Ohio Supreme Court Case to Decide Whether or Not to Expand Insurance Coverage Under GC’s CGL Insurance Policies

August 14, 2018 — David Suggs – Bert L. Howe & Associates, Inc.
According to W. Matthew Bryant of Saul Ewing Arnstein & Lehr LLP, the Ohio Supreme Court will be deciding whether or not a general contractor's commercial general liability ("CGL") insurance policy may provide coverage for damage caused by a subcontractor's defective construction work. Bryant explained the status quo in Ohio: “Since 2012, Ohio has followed the rule that a CGL policy would not cover damage caused by a contractor to the contractor's own work.” That could change depending on how the Ohio Supreme Court rules in an upcoming case: “The Ohio Supreme Court will decide whether to affirm or overturn Ohio Northern University v. Charles Construction Services, Inc., 77 N.E.3d 538 (Ohio Ct. App. 2017) ("ONU"), an Ohio Court of Appeals decision holding that CGL coverage may exist for property damage caused by faulty work performed by the subcontractor of an insured general contractor.” Read the court decision
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Homeowner's Claim for Collapse Survives Summary Judgment

September 20, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The insurer failed to present adequate evidence on summary judgment that damage caused by the collapse of a swimming pool was not covered. Klein v. State Farm Ins. Co., 2017 N.Y. Misc. LEXIS 3030 (Sup. Ct. N.Y. July 11, 2017). Klein notified State Farm that his in-ground pool collapsed on February 5, 2014, with a side wall falling into the pool, causing damage to brick, borders and the patio around the pool. Upon inspection, State Farm's agent found that the cover of the pool had partially fallen into the pool, and that the vinyl pool liner had a tear. State Farm covered the damage to the pool liner, but denied coverage for the in-ground swimming pool walls, the brick border and the patio surrounding the pool. State Farm maintained that the loss was due to a "collapse," which was excluded under the homeowner's policy. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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