Fairfield Connecticut Building Expert Directory

Construction Litigation Roundup: “Hold the Pickles, Hold the Lettuce?”

October 02, 2023 — Daniel Lund III - Lexology
Hold the pickles, hold the lettuce? You can even hold the service… or at least proof of it! In a dispute over the construction of a Burger King restaurant in Tupelo, Mississippi, a state court suit by the owner against its general contractor and architect was removed to federal court by one of the defendant parties, on the basis of the diversity of citizenship of the defendant parties from the plaintiff, per 28 U.S.C. § 1331(a). For its part, plaintiff, upon achieving service of its state court complaint against the various defendants, filed a proof of service as to the party which sought to remove the case, but not as to the other defendants (even though the other defendants were served). Once the case was removed to federal court and after the deadline for removal has passed, plaintiff sought to have the matter remanded based on the lack of the consent of the entirety of the defendant group to the removal, in accordance with 28 U.S.C. § 1446 (“When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”). Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

Building Permits Hit Five-Year High

October 01, 2013 — CDJ STAFF
The New York Times reports that building permits in August were at their highest since May 2008, even despite a recent rise in mortgage rates. Construction starts on single-family homes were at their highest in six months as well. On the other hand, construction starts for condominiums and apartments fell slightly more than 11 percent. Read the court decision
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Consider Arbitration Provision in Homebuilder’s Warranty and Purchase-and-Sale Agreement

November 18, 2024 — David Adelstein - Florida Construction Legal Updates
When you enter into a contract with a homebuilder, particularly a tract homebuilder, please consider two things when it comes to dispute resolution: (1) your purchase-and-sale agreement likely contains an arbitration provision, and (2) your limited warranty agreement you get in connection with closing likely also reinforces the arbitration provision, especially with warranty claims governed by the limited warranty agreement. This dispute resolution is important because it means the homebuilder wants disputes resolved through the arbitration process and NOT through the litigation process (where the nature of disputes and allegations are public). Look, there are pros and cons with arbitration, no different than litigation. Arbitrating a dispute is not necessarily a bad thing, and with certain disputes, ideal. There is no right to appeal in arbitration, but the dispute should resolve itself quicker than litigation, and you’ll have more control over the decision maker, i.e., the arbitrator. 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

Top Talked-About Tech at the 2023 ABC Joint Tech Summit

May 15, 2023 — Grace Arnold - Construction Executive
At the 2023 ABC Joint Tech Summit in Tysons Corner, Virginia, on April 27, there was talk, of course, of various construction technologies, including AI, VR, autonomous vehicles, impairment detection, digital twins, blockchains and Spot the Robot Dog. All this different tech, however, was discussed for the same two reasons: safety and efficiency. While some companies are just discovering the vast uses for and benefits of smart technology in construction, other companies are already well into adoption and implementation. Here is a breakdown of some of the contech showcased at the Joint Tech Summit, which was presented by four ABC chapters: Chesapeake Shores, Greater Baltimore, Metro Washington and Virginia. AUTONOMOUS MACHINES The talk of the Tech Summit was Spot the Robot Dog from Boston Dynamics. Spot can walk, run, crawl, climb stairs and tortuous terrain, right itself from a fall, return to its charging port when its battery runs low and is compatible with a variety of add-ons, like 360 cameras. Spot is controlled via tablet and can be programmed to run on its own, allowing for increased worker and jobsite safety and productivity. Reprinted courtesy of Grace Arnold, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. 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

Texas res judicata and co-insurer defense costs contribution

March 23, 2011 — CDCoverage.com

In Truck Ins. Exchange v. Mid-Continent Casualty Co., No. 03-08-00526-CV (Tex. App. 3d Aug. 27, 2010), insured contractor DCI was sued by the project owner seeking damages for defective construction. DCI tendered its defense to its CGL insurers Truck and Mid-Continent. Truck agreed to defend while Mid-Continent denied a defense. While the underlying suit was pending, Mid-Continent sued DCI, but not Truck, and obtained a judicial declaration of no duty to defend or indemnify DCI in the underlying suit. After settling the underlying suit, Truck sued Mid-Continent seeking contribution towards defense costs and indemnity payments. The state trial court entered summary judgment for Mid-Continent. The intermediate appellate court affirmed.

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Reprinted courtesy of CDCoverage.com

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Coverage for Construction Defect Barred by Contractual-Liability Exclusion

July 30, 2014 — Tred R. Eyerly – Insurance Law Hawaii
Relying upon precedent from the Texas Supreme Court, the Fifth Circuit upheld the District Court's denial of coverage based upon the policy's contractual-liability exclusion. Crownover v. Mid-Continent Cas. Co., 2014 U.S. App. LEXIS 12158 (5th Cir. June. 27, 2014). The Crownovers entered a construction contract with Arrow Development, Inc. to construct a home. Paragraph 23.1 of the contract contained a warranty-to-repair clause, which provided Arrow "would correct work . . . failing to conform to the requirements of the Contract Documents." After the work was completed, cracks began to appear in the walls and foundation of the Crownovers' home. Additional problems with the heating, ventilation, and air conditioning system caused leaking in exterior lines and air ducts inside the home. When Arrow refused to correct the problems, the Crownovers initiated arbitration. The arbitrator found that the Crownovers had a meritorious claim for breach of the express warranty to repair contained in paragraph 23.1 of the construction contract. Damages were awarded. 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

Eleventh Circuit Rules That Insurer Must Defend Contractor Despite “Your Work” Exclusion, Where Damage Timing Unclear

May 13, 2019 — Michael S. Levine & David M. Costello - Hunton Andrews Kurth
The Eleventh Circuit has reversed an insurer’s award of summary judgment after finding that uncertainty about when the alleged property damage occurred raised questions about whether the damage came within the scope of the “Your Work” exclusion. More specifically, the court found unclear whether the damage occurred before or after the contractor abandoned the job, thereby triggering an exception to the “Your Work” exclusion for damage to work that had “not yet been completed or abandoned.” The decision illustrates how timing can be a critical factor when it comes to triggering coverage for work and completed operations. In Southern-Owners Insurance Company v. MAC Contractors of Florida, LLC, a pair of trustees hired MAC Contractors (doing business as KJIMS Construction) to serve as the general contractor for a custom residence. After construction began, disputes between the trustees and KJIMS caused the contractor to abandon the job before completing the project. The trustees followed with a lawsuit alleging, among other things, that KJIMS had damaged wood floors and a metal roof, which KJIMS had promised to remediate but never did. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and David Costello, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Costello may be contacted at dcostello@HuntonAK.com Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES