Fairfield Connecticut Building Expert Directory

Insurer Unable to Declare its Coverage Excess In Construction Defect Case

January 06, 2012 — CDJ STAFF

The Ninth Circuit Court of Appeals has upheld a summary judgment in the case of American Family Mutual Insurance Co. v. National Fire & Marine Insurance Co. Several other insurance companies were party to this case. In the earlier case, the US District Court of Appeals for Arizona had granted a summary judgment to Ohio Casualty Group and National Fire & Marine Insurance Company. At the heart of it, is a dispute over construction defect coverage.

The general contractor for Astragal Luxury Villas, GFTDC, contracted with American Family to provide it with a commercial liability policy. Coverage was issued to various subcontractors by Ohio Casualty and National Fire. These policies included blanket additional insured endorsements that provided coverage to GFTDC. The subcontractor policies had provisions making their coverage excess over other policies available to GFTDC.

The need for insurance was triggered when the Astragal Condominium Unit Owners Association filed a construction defect claim in the Arizona Superior Court. CFTDC filed a third-party claim against several subcontractors. The case was settled with American Family paying the settlement, after which it filed seeking reimbursement from the subcontractor’s insurers. The court instead granted summary judgment in favor of Ohio Casualty and National Fire.

American Family appealed to the Ninth Circuit for a review of the summary judgment, arguing that the “other insurance” clauses were “mutually repugnant and unenforceable.” The Ninth Circuit cited a case from the Arizona Court of Appeals that held that “where two policies cover the same occurrence and both contain ‘other insurance’ clauses, the excess insurance provisions are mutually repugnant and must be disregarded. Each insurer is then liable for a pro rate share of the settlement or judgment.”

The court noted that unlike other “other insurance” cases, the American Family policy “states that it provides primary CGL coverage for CFTDC and is rendered excess only if there is ‘any other primary insurance’ available to GFTDC as an additional insured.” They note that “the American Family policy purports to convert from primary to excess coverage only if CFTDC has access to other primary insurance as an additional insured.”

In comparison, the court noted that “the ‘other insurance’ language in Ohio Casualty’s additional insured endorsement cannot reasonably be read to contradict, or otherwise be inconsistent with, the ‘other primary insurance’ provision in the American Family policy.” They find other reasons why National Fire’s coverage did not supersede American Family’s. In this case, the policy is “written explicitly to apply in excess.”

Finally, the Astragal settlement did not exhaust American Family’s coverage, so they were obligated to pay out the full amount. The court upheld the summary dismissal of American Family’s claims.

Read the court’s decision…

Read the court decision
Read the full story...
Reprinted courtesy of

Payment Bond Claim Notice Requires More than Mailing

August 04, 2015 — Christopher G. Hill – Construction Law Musings
It’s been a while since I posted something new relating to Virginia’s “Little Miller Act” and its various notice requirements for a subcontractor to make a payment bond claim. I have posted on the basics of a Virginia payment bond claim previously here at Musings. One of these basics is the 90 day notice requirement for suppliers or second tier subcontractors with no direct contractual relationship to the general contractor. A recent case from the Norfolk, Virginia Circuit Court examined when notice is “given” under the Little Miller Act. In R T Atkinson Building Corp v Archer Western Construction, LLC the Court looked at the question of whether mailing of the notice of claim is enough to constitute notice being “given” in a manner that would satisfy the statutory requirements. In that case, the supplier mailed the notice within the 90 day window, but the defendant argued on summary judgment that it did not receive the notice until 2 days after the 90 day window had closed. In support of this contention, the defendant provided tracking information showing delivery by the USPS on the non-compliant date. Read the court decision
Read the full story...
Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Properly Trigger the Performance Bond

January 05, 2017 — David Adelstein – Florida Construction Legal Updates
A performance bond is a valuable tool designed to guarantee the performance of the principal of the contract made part of the bond. But, it is only a valuable tool if the obligee (entity the bond is designed to benefit) understands that it needs to properly trigger the performance bond if it is looking to the bond (surety) to remedy and pay for a contractual default. If the performance bond is not properly triggered and a suit is brought upon the bond then the obligee could be the one materially breaching the terms of the bond. This means the obligee has no recourse under the performance bond. This is a huge downside when the obligee wanted the security of the performance bond, and reimbursed the bond principal for the premium of the bond, in order to address and remediate a default under the underlying contract. A recent example of this downside can be found in the Southern District of Florida’s decision in Arch Ins. Co. v. John Moriarty & Associates of Florida, Inc., 2016 WL 7324144 (S.D.Fla. 2016). Here, a general contractor sued a subcontractor’s performance bond surety for an approximate $1M cost overrun associated with the performance of the subcontractor’s subcontract (the contract made part of the subcontractor’s performance bond). The surety moved for summary judgment arguing that the general contractor failed to property trigger the performance bond and, therefore, materially breached the bond. The trial court granted the summary judgment in favor of the performance bond surety. Why? Read the court decision
Read the full story...
Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dma@katzbarron.com

New York Federal Court Enforces Construction Exclusion, Rejects Reimbursement Claim

August 03, 2020 — Eric D. Suben - Traub Lieberman
In Crescent Beach Club, LLC v. Indian Harbor Insurance Company, 2020 WL 3414697 (E.D.N.Y. June 22, 2020), the district court considered application of a CGL policy issued to a property owner containing the following exclusion: "This policy does not apply to any ‘bodily injury’, ‘property damage’, ‘personal and advertising injury’, or any other loss, cost, defense fee, expense, injury, damage, claim, dispute or ‘suit’ either arising out of, or related to, any construction, renovation, rehabilitation, demolition, erection, excavation or remedition [sic] of any building and includes planning, site preparation, surveying or other other [sic] construction or development of real property. This exclusion, however, shall not apply to routine maintenance activities." Plaintiff in the underlying action alleged injury while engaged in construction work at the insured’s premises. The information the insurer received was conflicting as to whether plaintiff was demolishing a pergola (excluded) or merely removing vines (not excluded). The insurer reserved its rights accordingly. At his deposition in the underlying action, the plaintiff testified he was in a manlift performing demolition at the time he was injured. The insured’s property manager also testified that the pergola was being demolished. Approximately one month after the depositions, the insurer denied coverage based on the exclusion. Read the court decision
Read the full story...
Reprinted courtesy of Eric D. Suben, Traub Lieberman
Mr. Suben may be contacted at esuben@tlsslaw.com

Floating Crane on Job in NYC's East River Has a Storied Past of Cold War Intrigue

March 22, 2017 — Nadine M. Post – Engineering News-Record
The complex maneuver of lifting heavy prefabricated modules out of New York City's East River to build a university laboratory took careful planning and the work of one particular floating crane with a complicated past. Read the court decision
Read the full story...
Reprinted courtesy of Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com

Moving Toward a Telework Future: A Checklist of Considerations for Employers

July 27, 2020 — Daniel F. Fears & Raymond J. Nhan - Payne & Fears
Businesses contemplating moving to a virtual workplace in this post-COVID-19 world must consider the legal ramifications of such decisions. Virtual workplaces may provide businesses with many benefits, such as cost savings, access to a more geographically diverse worker pool and the possibility of more flexible employment relationships. But a virtual workplace may also include hidden employment-related issues, costs, and traps. This is especially so for California-based companies. This article identifies some of the significant employment-law issues related to transitioning to a virtual workplace. Specifically, this article analyzes three scenarios: (1) employers seeking to have their workers continue working from home; (2) workers desiring to continue working from home — and specifically, seeking to work outside of California; and (3) the hiring of new employees. Reprinted courtesy of Daniel F. Fears, Payne & Fears and Raymond J. Nhan, Payne & Fears Mr. Fears may be contacted at dff@paynefears.com Mr. Nhan may be contacted at rjn@paynefears.com Read the court decision
Read the full story...
Reprinted courtesy of

An Era of Legends

May 03, 2018 — Beverley BevenFlorez-CDJ STAFF
In 2010, West Coast Casualty’s Construction Defect Seminar added a new award: The Legend of an Era. West Coast Casualty recognizes “those in the construction defect community who inspire, contribute, advocate and influence others for the benefit and betterment of this community, making it a better place.” They define Legend as “One that inspires or achieves legendary fame based upon ones own achievement(s) which promises to be enduring” and Era, as “A fixed point of time from which a series of years is reckoned and an order of things prevail.” This annual award is presented at the West Coast Casualty Construction Defect Seminar. Read the court decision
Read the full story...
Reprinted courtesy of

My Top 5 Innovations for Greater Efficiency, Sustainability & Quality

October 25, 2020 — Cristina Savian - AEC Business
As a construction professional and British citizen, I genuinely could not have been any prouder and humbled to have opened UK Construction Week Virtual last week. 2020 is the year of disruptions, and we are all looking for this “New Normal”, and while this newfound regularity may have opened new opportunities, as we are now broadcasting to a much wider audience than previous in-person events, and indeed we have to thank technology for that. For us construction professionals, this pandemic has put our industry further under pressure, however, it has also taught us something extremely important. The pandemic has shown the world how vital the construction industry is. The world cannot function without it. This new extraordinary experience has given us the prospect to turn our industry around and transform it into one of the most productive industries in our society. How are we going to do it? I think you can guess what I am about to say, of course by leveraging technology! The panel discussion with leading construction experts across the UK with representatives from Skanska UK, Bryden Wood, and Innovate UK, focused on our top 5 innovations for greater efficiency, sustainability and quality in construction. Here are my top 5. Read the court decision
Read the full story...
Reprinted courtesy of Cristina Savian, AEC Business

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES