Fairfield Connecticut Building Expert Directory

Where-Forum Art Thou? Is the Chosen Forum Akin to No Forum at All?

May 30, 2022 — William Doerler - The Subrogation Strategist
Many courts enforce forum selection clauses in contracts between parties. In W. Bay Plaza Condo. Ass’n v. Sika Corp., No. 3D21-1834, 2022 Fla. App. LEXIS 1637 (W. Bay Plaza), the Court of Appeal of Florida, Third District (Court of Appeal) answered the question of whether a mandatory forum selection clause in a manufacturer’s warranty was enforceable as to a condominium association, who was a non-signatory. The trial court enforced the forum selection clause – calling for litigation in New Jersey rather than Florida – and the Court of Appeal affirmed the ruling. As stated in W. Bay Plaza, in late 2013 and early 2014, West Bay Plaza Condominium Association (W.B. Plaza Condo. Ass’n) contracted with Built Right Installers International Corporation, R.J. Miranda Consultants, Inc. and UCI Engineering Inc. (collectively, the Construction Defendants) to have repairs done to the exterior of the property. In 2016, Sika Corporation (Sika), a New Jersey corporation, gave a five-year warranty to W.B. Plaza Condo. Ass’n for three sealant products used to repair the garage at the property. In 2019, W.B. Plaza Condo. Ass’n sued the Construction Defendants for breach of contract and professional negligence. Subsequently, W.B. Plaza Condo. Ass’n amended its complaint and filed a claim against Sika, alleging that Sika breached its warranty because its products failed to provide a watertight barrier. Sika filed a motion to dismiss the action, alleging that Florida was an improper venue because its’ warranty contained a mandatory forum selection clause. W.B. Plaza Condo. Ass’n argued that it was not bound by the forum selection clause because it was a non-signatory to the warranty and, even if it was bound by the clause, there were compelling reasons not to enforce it. Read the court decision
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Reprinted courtesy of William Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

Arbitration Provisions Are Challenging To Circumvent

May 13, 2019 — David Adelstein - Florida Construction Legal Updates
Arbitration provisions are enforceable and they are becoming more challenging to circumvent, especially if one of the parties to the arbitration agreement wants to arbitrate a dispute versus litigate a dispute. Remember this when agreeing to an arbitration provision as the forum for dispute resolution in your contract. There is not a one-size-fits-all model when it comes to arbitration provisions and how they are drafted. But, there is a very strong public policy in favor of honoring a contractual arbitration provision because this is what the parties agreed to as the forum to resolve their disputes. By way of example, in Austin Commercial, L.P. v. L.M.C.C. Specialty Contractors, Inc., 44 Fla.L.Weekly D925a (Fla. 2d DCA 2019), a subcontractor and prime contactor entered into a consultant agreement that contained the following arbitration provision:

Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be subject to the dispute resolution procedures, if any, set out in the Prime Contract between [Prime Contractor] and the [Owner]. Should the Prime Contract contain no specific requirement for the resolution of disputes or should the [Owner] not be involved in the dispute, any such controversy or claim shall be resolved by arbitration pursuant to the Construction Industry Rules of the American Arbitration Association then prevailing, and judgment upon the award by the Arbitrator(s) shall be entered in any Court having jurisdiction thereof.

The prime contract between the owner and prime contractor did not require arbitration. 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

Dust Obscures Eleventh Circuit’s Ruling on “Direct Physical Loss”

October 12, 2020 — Walter J. Andrews, Michael S. Levine & Daniel Hentschel - Hunton Insurance Recovery Blog
On August 18, 2020, the United States Court of Appeals for the Eleventh Circuit affirmed a District Court’s 2018 ruling that Sparta Insurance Company need not cover a south Florida restaurant’s lost income and extra expenses resulting from nearby road construction. But, in doing so, the appeals court appears to deviate from even its own understanding of “direct physical loss” under controlling Florida law. In the underlying coverage action, the insured, Mama Jo’s Inc. operating as Berries in the Grove, sought coverage under its “all risk” commercial property insurance policy for business income loss and incurred extra expenses caused by construction dust and debris that migrated into the restaurant. Reprinted courtesy of Walter J. Andrews, Hunton Andrews Kurth, Michael S. Levine, Hunton Andrews Kurth and Daniel Hentschel, Hunton Andrews Kurth Mr. Andrews may be contacted at wandrews@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Hentschel may be contacted at dhentschel@HuntonAK.com Read the court decision
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It’s Time to Include PFAS in Every Property Related Release

June 01, 2020 — John Van Vlear & Gregory Tross - Newmeyer Dillion
While the federal government and states (including California) are working on establishing standards and how to manage the toxic chemicals known as PFAS (as defined below), certain states and banks are requiring testing for PFAS to approve no-further-action (NFA) determinations or to underwrite loans. PFAS do not easily fit within standard definitions of hazardous substances used in today’s agreements. Thus, if you want to ensure you and your successors are released for PFAS which later environmental testing may reveal, ensure such is specifically listed in your releases. What Are PFAS As depicted in the recent major-release movie Dark Waters, PFAS are a group of very stable man-made chemicals that are both toxic and ubiquitous. They are long-chain chemicals which means they do not naturally degrade easily. Reprinted courtesy of John Van Vlear, Newmeyer Dillion and Gregory Tross, Newmeyer Dillion Mr. Vlear may be contacted at john.vanvlear@ndlf.com Mr. Tross may be contacted at greg.tross@ndlf.com Read the court decision
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Roof's "Cosmetic" Damage From Hail Storm Covered

August 19, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Seventh Circuit affirmed the district court's determination that cosmetic damage to the insured's roof was covered. Advance Cable Co., LLC v. Cincinnati Ins. Co., 2015 U.S. App. LEXIS 9805 (7th Cir. June 11, 2015). The insured submitted a claim to its insurer, Cincinnati, for damage to the metal roof of its building caused by a hail storm. The insured inspected the roof with a claims representative for Cincinnati. Dents were spotted, but there was little other evidence of damage. The loss was estimated at $1,894.74. A check for this amount was sent to the insured. Six months later, the insured considered selling the building. A potential buyer inspected the roof and found hail damage. At the request of the insured, Cincinnati conducted another inspection of the roof. Again, dents of approximately 1 inch in diameter were found. The inspector noted that the denting would not affect the performance of the roof panels or detract from their life expectancy. 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

What is the Implied Warranty of Habitability?

October 02, 2018 — Bremer Whyte Brown & O’Meara
The implied warranty of habitability plays an important role in our understanding of the relationship between tenant and landlord; it helps to define the parameters and requirements of contracts between tenant and the owner. In doing so, the implied warranty of habitability is meant to ensure that a home or rental unit is in a livable condition. In this article, we’ll take a look at what the warranty of habitability is, how it developed, and what differentiates the warranty of habitability from the previous landlord-tenant law. Background of the Implied Warranty of Habitability When someone hears about the warranty of habitability, their first question is usually “what is the implied warranty of habitability?” This is understandable, given that the implied warranty of habitability isn’t exactly well known. Most renters have probably never heard of the implied warranty of habitability, despite the fact that it provides important safeguards for tenant’s rights. In order to gain a better understanding of what the implied warranty of habitability is, it is helpful to understand what state of affairs existed prior to the adoption of an implied warranty of habitability. Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O’Meara

Of Pavement and Pandemic: Liability and Regulatory Hurdles for Taking It Outside

September 21, 2020 — Jeff Clare - Gravel2Gavel Construction & Real Estate Law Blog
As the COVID-19 pandemic continues to ravage the U.S. economy, restaurateurs and bar owners are feeling the brunt of business closures and adaptations necessary to combat the disease. Where cozy and intimate dining was once de rigueur for the restaurant industry, these businesses must now shift to outdoor dining with adequate space and airflow between parties. In response to these concerns, many cities across the country who once fought against the loss of any parking have turned to a post-automobile tactic: outdoor dining in thoroughfares and parking lots. While at first glance it might seem a simple enough prospect—throw some chairs and a table out front, and voilà—property owners and restaurateurs must remain cognizant of various liability and regulatory hurdles for operating outside. With Great Space Comes Great … Potential Liability. One of the largest concerns for landowners in operating in a new space for business is liability. Who is on the hook if someone gets hurt dining in an impromptu dining space in a parking lot? Prior to beginning new outdoor dining operations, landowners and restaurateurs should contact their insurance providers to ensure that the new space is included in their insurance coverage. This is a particular concern for larger commercial landowners who may have various businesses vying to use their parking lot for business. Many leases have carefully crafted clauses limiting where a business may operate and where their liability ceases. Landowners and business owners should review their leases for any such clauses and negotiate with one another to ensure that liability in these new spaces is clearly defined. Read the court decision
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Reprinted courtesy of Jeff Clare, Pillsbury
Mr. Clare may be contacted at jeff.clare@pillsburylaw.com

Reservation of Rights Letter Merely Citing Policy Provisions Inadequate

February 14, 2023 — Tred R. Eyerly - Insurance Law Hawaii
In an unpublished opinion, the Fourth Circuit affirmed the district court's finding that the insurers' reservation of rights letters did not provide a basis for denial of coverage. Stoneiedge At Lake Keowee Owners Ass'n Inc. v. Cincinnati Ins. Co., 2022 US. App. LEXIS 34292 (4th Dist. Dec. 13, 2022). The Stoneledge AOAO sued the general contractor Marlick Home Builders, LLC and other defendants after construction of 37 units. The complaint alleged construction defects that resulted in water intrusion and other physical damage. Marlick notified its insurers, Cincinnati Insurance Company and Builders Mutual. Various reservation of rights letter were sent by the insurers. In the underlying case, a judgment was entered against Marlick totalling approximately $1.6 million. As a judgment creditor of Marlickm, Stoneledge sued Cincinnati and Builders Mutual. The district court granted Stonelege's motion for summary judgment, primarily on the ground that the insurers failed to reserve the right to contest coverage. 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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