FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Playing Hot Potato: Indemnity Strikes Again

September 17, 2015 — Garret Murai – California Construction Law Blog
Indemnity can be like playing hot potato (for those of you closer to the Minecraft generation, in the game of hot potato, a metaphoric “hot potato” is tossed between (ahem amongst) players while music is playing, and when the music stops, the player holding the hot potato is out. It’s a barrel of monkeys, trust me.). Anyway, like hot potato, with indemnity an owner typically requires its general contractor to indemnify the owner (sometimes the property owner in TI projects and occasionally design professionals) from and against any and all claims arising out of, related to . . . blah, blah, blah . . . the general contractor’s scope of work . A general contractor in turn will usually require indemnity from its subcontractors. And subcontractors will require indemnity from their sub-subcontractors. And down the line it goes with each party pointing their finger at the next party down the proverbial “food chain.” But it doesn’t always happen that way as the next case, American Title Insurance Company v. Spanish Inn, Case No D067137, California Court of Appeals for the Fourth District (August 14, 2015), illustrates. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Canada's Ex-Attorney General Set to Testify About SNC-Lavalin Scandal

April 03, 2019 — Associated Press - Engineering News-Record
TORONTO (AP) — Canada's former attorney general is expected to testify Wednesday about whether she was inappropriately pressured by Prime Minister Justin Trudeau's office to avoid prosecuting a major Canadian engineering company. Ex-Attorney General Jody Wilson-Raybould has said she wants to tell "her truth" and she will speak at a hearing of the Parliament justice committee. Read the court decision
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Reprinted courtesy of Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com

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Ninth Circuit Affirms Dismissal Secured by Lewis Brisbois in Coverage Dispute Involving San Francisco 49ers’ Levi Stadium

May 31, 2021 — Kristen Perkins & Jordon Harriman - Lewis Brisbois Newsroom
Fort Lauderdale Partner and Vice Chair of Lewis Brisbois’ Insurance Coverage & Bad Faith Litigation Practices Kristen D. Perkins and Los Angeles Partner Jordon E. Harriman had their district court victory confirmed by the U.S. Court of Appeals for the Ninth Circuit when it affirmed the lower court’s ruling that Lewis Brisbois’ client, an excess insurer, had no duty to defend or indemnify a construction joint venture in a lawsuit filed by San Francisco 49ers fans. Underlying Case and Lewis Brisbois’ Successful Motion to Dismiss In the underlying matter, 49ers fans filed a proposed class action against the team, alleging that the team’s home venue, Levi Stadium, violated the Americans with Disabilities Act and the state's Unruh Civil Rights Act because it contained physical barriers that hindered access for disabled people. The 49ers subsequently filed a third-party complaint against the construction joint venture that built the stadium, contending that the joint venture’s negligence caused the inaccessibility, and that if the team was held liable for the fans' claims, the joint venture should be obligated to indemnify the team under the terms of the stadium contract. Reprinted courtesy of Kristen Perkins, Lewis Brisbois and Jordon Harriman, Lewis Brisbois Ms. Perkins may be contacted at Kristen.Perkins@lewisbrisbois.com Mr. Harriman may be contacted at Jordon.Harriman@lewisbrisbois.com Read the court decision
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It’s All a Matter of [Statutory] Construction: Supreme Court Narrowly Interprets the Good Faith Dispute Exception to Prompt Payment Requirements in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.

May 30, 2018 — Erinn Contreras & Joy O. Siu - Sheppard Mullin Construction & Infrastructure Law Blog
On May 14, 2018, the California Supreme Court issued its opinion in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., No. S231549, slip. op. (Cal. Sup. Ct. May 14, 2018). In it, the Court narrowly construed the “good faith” exception to the general rule that a direct contractor must make retention payments to its subcontractors within 10 days of receiving any retention payment. The exception provides that “[i]f a good faith dispute exists between the direct contractor and a subcontractor, the direct contractor may withhold from the retention to the subcontractor an amount not in excess of 150 percent of the estimated value of the disputed amount.” Cal. Civ. Code section 8814(c). Reprinted courtesy of Erinn Contreras, Sheppard Mullin and Joy O. Siu, Sheppard Mullin Ms. Contreras may be contacted at econtreras@sheppardmullin.com Ms. Siu may be contacted at jsiu@sheppardmullin.com Read the court decision
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Delays in Filing Lead to Dismissal in Moisture Intrusion Lawsuit

September 09, 2011 — CDJ STAFF

The Alabama Court of Civil Appeals has upheld a summary judgment in the case of Franklin v. Mitchell. Walter Mitchell, doing business as Southern Classic Construction built a new home for the Franklins. The Franklins moved into the home in October 2001. In April 2006 they discovered sagging floors in both the bathroom and kitchen. They contacted Mitchell who suggested the flooring might be defective. The Franklins spent eight months attempting to contact the flooring manufacturer.

In March 2007, the Franklins had the home inspected. The sagging was determined to be due to a loss of strength in the decking because of condensation from the air conditioning system. Air returns were not properly sealed and drawing moisture into the structure. There was mold on the decking and floor joints.

When Mitchell was contacted by the Franklins, he told them his one-year warranty had expired but had the HVAC subcontractor, Southern Mechanical Heating & Air (owned by Mitchell’s father, Jim Mitchell), look at the situation. SMHA replaced and braced subfloors. Later, they entered the crawl space to tape ducts, seal the air return, and insulate the air vent housing. The Franklins were not satisfied with the repairs, as not all the ducts were taped, nor were the air vent housings insulated.

Franklin complained to Walter Mitchell who again cited his one-year warranty. Jim Mitchell said he would not report complaints to his insurer, stating that the repairs were unnecessary, that the work had been done correctly in the first place, and it was only done at the request of Walter Mitchell.

In February 2009, the Franklins sued Walker Mitchell. Mitchell denied the claims, citing in part the statute of limitations. Mitchell also filed complaints against three subcontractors, including his father’s firm. Mitchell received a summary judgment as the case started after Alabama’s six-year statute of limitations.

The appeals court rejected the Franklin’s argument that the claim of damage did not start until they were aware it was due to a construction defect. The court noted that as Walter Mitchell was licensed as a “residential home builder, the statute the Franklins cite did not apply, as it concerns architects, engineers, and licensed general contactors.”

Nor did they feel that Mitchells’ claim that his warranty had expired were sufficient to override the statute of limitations, quoting an earlier case, “Vague assurances do not amount to an affirmative inducement to delay filing suit.” Their claim of subsequent negligent repairs was rejected because Mitchell did not direct the specific actions taken by his father’s firm.

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Colorado Homes Approved Despite being Too Close Together

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
ABC 7 reported that more than a dozen homes in Adams County, Colorado were inspected and approved by Building and Safety despite being built too close together. The problem was discovered by an inspector who cited a new home for being “4 inches too close to adjoining property.” Jim Williamette, the Adams County Chief Building Official told ABC 7, “It’s a fire issue for the separation of buildings.” The county may have solved the issue, according to ABC 7. Williamette stated that the properties “will be modified with fire-resistant windows” and combined with the “already-installed fire-resistant siding, the windows will satisfy the international building code.” Currently, the parties are in verbal agreement, and a “signed design proposal” is expected no later than January 21st. Read the court decision
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User Interface With a Building – Interview with Esa Halmetoja of Senate Properties

September 14, 2017 — Aarni Heiskanen - AEC Business
Architect Mies van der Rohe once said that, “An office is a machine for working in.” From a maintenance person’s point of view that might be true. For a user, an office should offer a productive working environment. A pilot project, led by Esa Halmetoja of Senate Properties, is trying to find out how a digital twin of a building would serve both the needs of the maintenance worker and the office worker. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at info@aepartners.fi

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Incorrect Information Provided on Insurance Application Defeats Claim for Coverage

July 31, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventh Circuit affirmed the district court's finding of no duty to defend or indemnify because of an answer on the insured's application for insurance. Snell v. United Specialty Ins. Co., 2024 U.S. App. 12733 (11th Cir. May 28, 2024). Snell was hired by a family, the Westons, to turn an above ground trampoline into a ground level trampoline. This involved various tasks like tree pruning and removal, installation of shrubs, trees, and sod, and setting up a sprinkler irrigation system. The trampoline aspect of the project involved site work to make a place for the trampoline and assembly and installation of the trampoline. The site work included excavation of a pit, installation of a drain and drainage sand, excavation of a trench to install a drainage pipe, installation of the drainage pipe and of a drain pump, construction of concrete block retainer walls and installation of a wood cap on the retainer walls. Then, Snell unboxed the trampoline, assembled it, and lowered it into the pit. A few years later, a visitor to the Weston home sued the Westons for injuries to his daughter suffered on the trampoline. The complaint alleged the daughter was injured when she "fell off of the trampoline and struck her face on the wooden board" surrounding the tramline. The complaint was later amended to add Snell as a defendant. 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

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