FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Don’t Spoil Me: Oklahoma District Court Rules Against Spoliation Sanctions

January 08, 2024 — Kyle Rice - The Subrogation Strategist
In Okla. Farm Bureau Mut. Ins. Co. v. Omega Flex, Inc., No. CIV-22-18-D, 2023 U.S. Dist. LEXIS 197755, the United States District Court for the Western District of Oklahoma (the District Court) determined spoliation sanctions were not warranted after a home was demolished for repair following a joint scene examination. The insurer, Oklahoma Farm Bureau Mutual Insurance Company (Insurer) provided a policy of insurance to Michael and Sondra Diel (the Diels). On July 11, 2020, the Diels’ home was struck by lightning and their attic caught fire. Following the loss, Insurer retained both counsel and fire origin and cause experts to inspect the Diels’ property. Insurer’s counsel informed in-house counsel for Omega Flex, Inc. (Omega Flex) via a letter dated July 14, 2020, that a preliminary investigation indicated the fire may have been caused by an Omega Flex product—specifically, TracPipe Corrugated Stainless Steel Tubing (CSST). Insurer’s counsel invited Omega Flex to inspect the property, noting: “It is anticipated that the loss will exceed $300,000” and stating that any inspection “must be completed during the next two weeks. At that time, the homeowner will proceed with demolition to rebuild.” (Emphasis added). Read the court decision
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Reprinted courtesy of Kyle Rice, White and Williams
Mr. Rice may be contacted at ricek@whiteandwilliams.com

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Court Makes an Unsettling Inference to Find that the Statute of Limitations Bars Claims Arising from a 1997 Northridge Earthquake Settlement

April 15, 2015 — David W. Evans and Stephen J. Squillario – Haight Brown & Bonesteel LLP
In Britton v. Girardi (No. B249232 – Filed 4/1/2015), the Second Appellate District upheld the trial court’s dismissal due to the statute of limitations based on an inference it drew from a letter attached to the complaint, while reaffirming its prior application of the limitations period in Probate Code section 16460 for fraud claims in the related case of Prakashpalan v. Engstrom, Lipscomb & Lack (2/27/2014) 223 Cal.App.4th 1105. In Britton, just as in Prakashpalan, the plaintiffs sued the attorneys who had represented them in connection with claims against their insurer arising out of the Northridge earthquake. In 1997, the attorneys had settled that litigation for more than $100 million. The plaintiffs allege that the attorneys breached their fiduciary duty by (1) failing to provide an accounting for the settlement, (2) failing to obtain their informed consent to the settlement, and (3) concealing their misappropriation of the settlement funds. They claim that they did not discover this wrongdoing until nearly fifteen years later, in 2012, when the Prakashpalans contacted them about their settlement. Significantly, the plaintiffs attached as an exhibit to the complaint a page of the November 3, 1997 letter to the Prakashpalans (rather than the plaintiffs), which stated that a retired judge who presided over the settlement had determined the allocations and the attorneys could not distribute the proceeds until the plaintiffs signed the “Master Settlement Agreement” by which the plaintiffs agreed to its terms and to give up all claims against the insurer. 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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Partner John Toohey is Nominated for West Coast Casualty’s Jerrold S. Oliver Award of Excellence!

March 11, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is honored to share that Newport Beach Partner John Toohey is nominated for West Coast Casualty’s 2024 Jerrold S. Oliver Award of Excellence! Every year, West Coast Casualty recognizes an individual who is committed, trustworthy, and has contributed years to the betterment of the construction defect community. The award is named after the late Judge Jerrold S. Oliver who is considered a “founding father” in the alternate resolution process in construction claims and litigation. Each year, members of the construction community are asked to nominate individuals who invoke the same spirit as Judge Oliver. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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What is an Alternative Dispute Resolution?

August 26, 2019 — Bremer Whyte Brown & O'Meara LLP
Alternative Dispute Resolution (“ADR”) is a term that refers to a number of processes that can be used to resolve a conflict, dispute, or claim. ADR processes are alternatives to having a court decide the dispute in trial. ADR processes can be used to resolve any type of dispute including but not limited those related to families, neighborhoods, employment, businesses, housing, personal injury, consumers, and the environment. ADR is usually less formal, less expensive, and less time-consuming than a trial. Most Common Types of Alternative Dispute Resolutions Mediation In mediation, an impartial person called a “mediator” helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties. Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

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The Condo Conundrum: 10 Reasons Why There's a 'For Sale' Shortage in Seattle

December 20, 2017 — Dave Suggs - CDJ STAFF
Seattle Washington is experiencing a shortage of in-city condos. Of the 27,000 units of new housing being built in downtown Seattle, 94 percent will be rentals. As housing prices are rising in the US’s fastest-growing large city, the median home price is $660,000. Dean Jones of the Seattle Magazine reports on why consumers consider condos, but home developers don’t in his article “The Condo Conundrum: 10 Reasons Why There's a 'For Sale' Shortage in Seattle.” Reason 1, condominiums don’t always offer high returns and can be riskier for the home developer. Reason 2, the Washington State Condo Act “overprotects” buyers of condos with over-the-top warranties that makes everyone in the industry afraid to work with condos. Reason 3, the cost of condo building is increased because of the risk of defect litigation. Reason 4, condo presale buyers are not required to deposit a percentage to invest in a new development and before closing could decide to walk away. Reason 5, there is a lot of interest in apartment buildings from investment groups. Reason 6, investors whose goal is to own “trophy” assets in rising markets can’t wait the years it takes developers to plan and construct a new multistory community. Reason 7, since rent prices have risen 50 percent on average in the last 7 years, it’s profitable to be a landlord. Reason 8, the millennials who live and work in this tech oriented region prefer to rent because of living through the rise and fall of the housing market. Reason 9, the costs is rising each year to deliver new projects. Reason 10, high-rise zoning was adopted 2 years before the recession, so just as condo development was gearing up, apartment building took over. Read the court decision
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Keep Your Construction Claims Alive in Crazy Economic Times

May 25, 2020 — Christopher G. Hill - Construction Law Musings
Coronavirus is dominating the news. Construction in Virginia is facing what is at best an uncertain future and at worst a series of large scale shutdowns due to COVID-19. The number of cases seem to grow almost exponentially on a daily basis while states and the federal government try and patch together a solution. All of this adds up to the possibility that owners and other construction related businesses could shutter and importantly payment streams can slow or dry up. Aside from keeping your contractual terms in mind and meeting the notice deadlines found in your contract, these uncertain economic times require you to be aware of the claims process. Along with whatever claims process is set out in the contract and your run of the mill breach of contract through non-payment type claims, in times like this payment bond and mechanic’s lien claims are a key way to protect your payment interest. The law has differing requirements for each of these unique types of payment claims. Mechanic’s liens are technical and statute based with very picky requirements. The form and content of a memorandum of lien will be strictly read and in most cases form will trump substance. Further, among other requirements best discussed with a Virginia construction lawyer, you must keep in mind two numbers, 90 and 150. The 90 days is the amount of time that you have in which to record a lien. This deadline is generally calculated from the last date of work (or possibly the last day of the last month in which you did work). File after this deadline and your lien will be invalid because the right to record a lien has expired. The 150 days is a look back from the last day of work or the date of lien filing, whichever is sooner in time. The 150 days applies to the work that can be captured in the lien. In other words, it dictates the amount of the lien. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Montana Federal District Court Finds for Insurer in Pollution Coverage Dispute

October 24, 2021 — Melanie A. McDonald - Saxe Doernberger & Vita
Applying Louisiana law, a recent federal court decision exemplifies why policyholders should thoroughly read claims-made policies to understand when notice is due to insurers and truthfully complete policy applications. In Admiral Insurance Company v. Dual Trucking, Inc.,1 the Court determined the insurer, Admiral Insurance Company (“AIC”), owed no duty to defend or indemnify Dual Trucking and Transport, LLC (“DTT”), Dual Trucking of Montana, LLC (“DTM”), and Dual Trucking, Inc. (“DTI”) (collectively, the “Dual Entities”) under two Environmental Impairment Liability Policies (“EIL Policies”) and four Contractor Pollution Liability Policies (“CPL Policies”). The Court justified its decision because the Dual Entities: 1) did not give notice during the 2012-2013 EIL Policy period; 2) had discovered or knew of, but did not disclose, potential pollution conditions before the inception of the 2013-2014 EIL Policy and before the expiration of the extended reporting period of the 2012-2013 EIL Policy; 3) failed to provide AIC with notice during the extended reporting period of the 2013-2014 EIL Policy of claims for which the Dual Entities were seeking coverage; and 4) materially misrepresented known facts on the CPL Policy applications. I. Factual Background. The Dual Entities were Louisiana-based companies that provided oilfield equipment rental services. In 2011, the Dual Entities leased land in Montana under three leases, collectively referred to as “the Bainville site.” Shortly afterward, the Dual Entities applied for, and AIC issued, an EIL Policy and two CPL Policies with a policy period of October 1, 2012, to October 1, 2013. AIC renewed all three policies for the October 1, 2013, to October 1, 2014, policy period. Read the court decision
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Reprinted courtesy of Melanie A. McDonald, Saxe Doernberger & Vita
Ms. McDonald may be contacted at MMcDonald@sdvlaw.com

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Mixing Concrete, Like Baking a Cake, is Fraught with Problems When the Recipe is Not Followed

February 26, 2015 — Garret Murai – California Construction Law Blog
“Mixing concrete, like baking a cake, is fraught with problems when the recipe is not followed.” – Justice Kenneth Yegan, State Ready Mix, Inc. v. Moffatt & Nichol, California Court of Appeal for the Second District, Case No. B253421 (January 8, 2015). I love jurists who aren’t afraid to mix in a little humour in their opinions. But “[t]he law,” as a framed needlepoint in one of my colleague’s offices says, “is serious business.” And the State Ready Mix case involved one of the thorniest problems in construction litigation: What to do when you’re sued and you think someone else is to blame. 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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