Fairfield Connecticut Building Expert Directory

Charles Carter v. Pulte Home Corporation

October 12, 2020 — Michael Velladao - Lewis Brisbois
In Carter v. Pulte Home Corp., __Cal.App.5th__(July 23, 2020), the California Court of Appeal affirmed the entry of judgment in favor of subcontractors in connection with a Complaint for Intervention based on equitable subrogation filed by Travelers Property Casualty Company of America (“Travelers”) seeking to recover defense costs incurred in defending Pulte Home Corporation (“Pulte”) in an underlying construction defect lawsuit. The parties’ dispute arose out of Travelers’ defense of Pulte as an additional insured under policies issued to four subcontractors involved in the underlying construction defect lawsuit. Several subcontractors involved in the underlying construction defect lawsuit refused to defend Pulte based on the indemnity clauses in their subcontracts. Such clauses promised to indemnify Pulte as follows: “all liability, claims, judgments, suits, or demands for damages to persons or property arising out of, resulting from, or relating to Contractor’s performance of work under the Agreement (“Claims”) unless such Claims have been specifically determined by the trier of fact to be the sole negligence of Pulte. . . .” Pulte eventually settled the construction defect lawsuit and its claims against all of the subcontractors. Travelers ultimately paid $320,491.82 for Pulte’s defense and recovered $164,400 from some of the subcontractors. Travelers’ intervention in the underlying lawsuit was intended to recover the remaining $156,091.82 from the subcontractors that refused to indemnify Pulte for the defense of the construction defect lawsuit. In the underlying trial, Travelers argued that the subcontractors were obligated to pay defense costs on a joint and several basis (minus what Travelers had already recovered). The trial court did not agree and held that Travelers was not entitled to equitable subrogation for the remaining defense costs. Read the court decision
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Reprinted courtesy of Michael Velladao, Lewis Brisbois
Mr. Velladao may be contacted at Michael.Velladao@lewisbrisbois.com

Insurer Must Defend Construction Defect Claims

October 07, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The federal district court found that under New York law, the insurer had a duty to defend construction defect claims where damage to property other than the insured's work product was possible. Am.Home Assur. Co. v. Allan Window Techs., 2016 U.S. Dist. LEXIS 101118 (S.D. N. Y. Aug 2, 2016). Kent Avenue Property ("Kent") sued Allan Window Technologies, Ltd. ("Allan"), alleging that Allan entered a written contract for the design, manufacture, assembly and installation of the window wall systems for a residential condominium building. Pursuant to the contract, Allan agreed to correct all work rejected as defective and to bear all costs for correcting the work. According to the complaint, the window wall systems and vent windows installed by Allan were not water-tight or air-tight, and therefore did not meet the air and water penetration requirements of the contract.The contract had an indemnification provision under which Allan agreed to indemnify, defend and hold harmless Kent from all losses, claims, lawsuits, etc. arising out of damage or injury to property at the project site. Kent sued for: (1) breach of contract; (2) breach of warranty, and (3) contractual indemnity. American Home agreed to defend Allan under a full reservation of rights. American Home then sued for a declaratory judgment to establish it had no duty to defend or indemnify. 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

Attorneys' Fees Awarded "Because Of" Property Damage Are Covered by Policy

August 29, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Ninth Circuit upheld the District Court's decision that the insured Association of Apartment Owners was entitled to coverage for the attorneys' fees incurred [prior post here].Assoc'n of Apartment Owners of the Moorings, Inc. v. Dongbu Ins. Co., Ltd., 2018 U.S. App. LEXIS 20251 (9th Cir. July 20, 2018). The District Court for the District of Hawaii granted summary judgment to the AOAO, requiring Dongbu to indemnify the AOAO for an award of attorney's fees that an arbitrator ordered the AOAO to pay to the underlying claimants. The claimants prevailed on a claim that their condominium unit incurred water damage due to a common roof leak. Dongbu's policy required it to reimburse those sums that the AOAO was legally obligated to pay as damages because of property damage. The AOAO became legally obligated to pay the claimants' fees once the state court confirmed the arbitration award. Further, the water damage to the home constituted covered property damage under the policy. 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

The Architecture of Tomorrow Mimics Nature to Cool the Planet

January 31, 2022 — Damian Shepherd - Bloomberg
There’s a new climate push in the building industry: regenerative architecture. The sector has been trying for years to cut its sizeable carbon footprint, which was responsible for 38% of the world’s energy-related greenhouse gases in 2019. But developers need to go beyond preventing pollution if they want to help avoid catastrophic climate change, according to Sarah Ichioka and Michael Pawlyn, co-authors of a new book titled Flourish: Design Paradigms for Our Planetary Emergency. They argue that buildings should be designed in a regenerative way — a process that mimics nature by restoring its own materials and sources of energy. It goes further than sustainable design, which seeks to reduce harm to the environment and use only essential materials. “More than half of humanity’s total historic greenhouse-gas emissions have occurred since the concept of ‘sustainability’ entered the mainstream,” Ichioka and Pawlyn write. “It is now time to embrace a new regenerative approach to design and development.” Read the court decision
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Reprinted courtesy of Damian Shepherd, Bloomberg

Mississippi River Spends 40 Days At Flood Stage, Mayors Push for Infrastructure Funding

June 18, 2019 — Jeff Yoders - Engineering News-Record
As record flooding continues across the Midwest, the region’s mayors and the Army Corps of Engineers are looking for solutions to mitigate future floods. Read the court decision
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Reprinted courtesy of Jeff Yoders, ENR
Mr. Yoders may be contacted at yodersj@enr.com

Construction Defects Lead to Demolition

May 26, 2011 — CDJ STAFF

Ten years after it was built, demolition of Seattle’s McGuire Building has begun, as Jeanne Lang Jones reports in the Puget Sound Business Journal. Construction defects had rendered the 25-story apartment building uninhabitable. The major problem was corroded steel cabling. According to the report, “the building’s owners reached an undisclosed settlement last year with St. Louis-based contractor McCarthy Building Companies.”

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Coronavirus and Contract Obligations

March 30, 2020 — David R. Cook - AHC Construction and Procurement Blog
The Coronavirus (COVID-19) pandemic has caused a global disruption to businesses, causing many to temporarily close and lay off employees. As businesses assess the short– and long–term economic impact of COVID-19, they should also evaluate what contractual obligations and remedies are available under various agreements (e.g., leases, vendor agreements, and supply agreements). When performance may be delayed or may not occur altogether, businesses should consider their force majeure clauses, if any, and the doctrines of impossibility, impracticability, and frustration of purpose. Force Majeure Generally, unless a contract provides that performance will be suspended or relieved when certain events occur (e.g., “acts of God,” government regulation, acts of war or terror, strikes), each party is obligated to perform. However, when there is an express force majeure provision, certain events or acts may excuse non-performance or delayed performance. But depending on the jurisdiction, courts may construe force majeure provisions narrowly and excuse performance only for those events expressly listed in the clause. Nonetheless, if the force majeure provision includes pandemic, epidemic, quarantine, government act, disease, or similar terms, then the COVID-19 pandemic may excuse performance or allow delayed performance. Read the court decision
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Reprinted courtesy of David R. Cook, Autry, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

Contract And IP Implications Of Design Professionals Monetizing Non-Fungible Tokens Comprising Digital Construction Designs

December 26, 2022 — Colin C. Holley - ConsensusDocs
There is an emerging market that appears poised to increasingly provide opportunities to monetize architectural and other construction designs through the sale of non-fungible tokens (NFTs). Last year, artist Krista Kim reportedly made the first sale of a digital home design via an NFT marketplace, for over $500,000. With some NFTs selling for millions of dollars, monetizing digital designs is undoubtedly an enticing prospect for architects, engineers, and other design professionals. It is thus critical to understand the application of intellectual property rights to NFTs and to address those rights in contracts involving design professionals. What is an NFT? To understand the market for NFTs it is necessary to first understand blockchain technology. A blockchain is a decentralized system of recording information via a digital ledger of transactions duplicated and distributed across many computers. The manner in which each block of the ledger chain is created—using a cryptographic mathematical algorithm tied into the previous block, a timestamp, and transaction data—prevents it from being changed retroactively without a change to all subsequent blocks and consensus of the decentralized network. An NFT is a ‘token’ secured to a blockchain. It can represent ownership of any item that is non-fungible, i.e., any item that has unique qualities that add value and make the item non-interchangeable. NFTs can take unlimited forms, including, for example, tokens representing unique artwork, music, fashion items, in-game items, essays, collectibles, memorabilia, furniture, and real estate. Read the court decision
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Reprinted courtesy of Colin C. Holley, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs)
Mr. Holley may be contacted at cholley@watttieder.com

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