Fairfield Connecticut Building Expert Directory

Real Estate & Construction News Round-Up (11/30/22) – Proptech Trends, Green Construction, and Sustainable Buildings

December 13, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
This week’s round-up explores 4 key trends expected to impact proptech in 2023, global investment in green construction technologies, sustainable buildings and their perceived value for tenants in Europe, and more.

Sitting at the crossroads between real estate and technology, proptech has experienced significant growth, which is expected to accelerate via 4 key trends in 2023. (Zain Jaffer, Forbes)
Global investment in green construction technologies reached $2.2 billion in 2022, with legislation and technological innovation serving as the key driving forces behind this growth. (Jennifer Kite-Powell, Forbes)
In Europe, sustainable buildings have increased the asset values for commercial real estate managers, with tenants willing to pay more for efficient buildings. (David Worford, Environment + Energy Leader)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

KF-103 v. American Family Mutual Insurance: Tenth Circuit Upholds the “Complaint Rule”

May 12, 2016 — Adria Robinson – Colorado Construction Litigation
In Colorado, the “complaint rule” requires insurance carriers to provide a defense to its insured when the allegations contained in the complaint allege any set of facts that may fall within an insurance policy. Some insurers have pushed back on this rule arguing that it may cause an insurer to exercise its duty to defend although the underlying facts ultimately do not fall within the policy. In KF 103-CV, LLC v. American Family Mutual Insurance Company, 2015 WL 6517782, the Tenth Circuit of the United States Court of Appeals upheld the complaint rule. In its decision, the Tenth Circuit cited several Colorado state court rulings recognizing the courts’ intent to incentivize insurers to defend policies that may facially fall within the terms of the policy. Where there is uncertainty about coverage, the Tenth Circuit cited a Colorado Supreme Court case stating, “[t]he appropriate course of action for an insurer who believes that it is under no obligation to defend, is to provide a defense to the insured under the reservation of its rights.” Read the court decision
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Reprinted courtesy of Adria Robinson, Higgins, Hopkins, McLain & Roswell, LLC
Ms. Robinson may be contacted at robinson@hhmrlaw.com

Burden Supporting Termination for Default

January 11, 2021 — David Adelstein - Florida Construction Legal Updates
Terminating a contractor for default is a “‘drastic sanction’ and ‘should be imposed (or sustained) only for good grounds and on solid evidence.’” Cherokee General Corp. v. U.S., 150 Fed.Cl. 270, 278 (Fed.Cl. 2020) (citation omitted). This is true with any termination for default because terminating a contract for default is the harshest recourse that can be taken under a contract. It is a caused-based termination. For this reason, the party terminating a contract for default needs to be in a position to carry its burden supporting the evidentiary basis in exercising the default-based (or caused-based) termination. Stated differently, the party terminating a contract for default needs to justify the reasonableness in terminating the contract for default. A party looking to terminate a contract for default should smartly work with counsel to best position its justification in exercising the termination for default. Likewise, a contractor terminated for default should immediately work with counsel to best position the unreasonableness or the lack of justification for the default-based termination. 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

Embattled SNC-Lavalin Files Ethics Appeal, Realigns Structure

May 01, 2019 — Debra K. Rubin - Engineering News-Record
Even as Montreal design-build giant SNC-Lavalin Group Inc. faces corporate bribery charges on old Libya contracts, the firm now seeks, in an April 4 federal court appeal, to reverse Canadian prosecutors’ 2018 rejection of a negotiated settlement. Read the court decision
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Reprinted courtesy of Debra K. Rubin, ENR
Ms. Rubin may be contacted at rubind@enr.com

Texas Supreme Court Rules That Subsequent Purchaser of Home Is Bound by Original Homeowner’s Arbitration Agreement With Builder

May 29, 2023 — Kim Altsuler - Peckar & Abramson, P.C.
In a new opinion Lennar Homes of Texas Land and Construction, Ltd., et al. v. Kara Whiteley, Cause No. 21-0783, 66 Tex. Sup. Ct. J. 8740, issued May 12, 2023, the Texas Supreme Court partially reversed two lower court decisions and held that an arbitration provision contained in the original homeowner’s contract with the builder was binding on a subsequent homeowner. In the decision, the court found that Kara Whiteley—the second owner of the home in Galveston, Texas—was bound to arbitrate her construction defect claims with Lennar by virtue of the doctrine of “direct-benefits estoppel.” The rationale was based on the fact that Whitely was seeking benefits emanating from Lennar’s contract with the original homeowner. The residence in question was first purchased from Lennar in May 2014. Whiteley purchased the home in July 2015. The original contract documents included several arbitration provisions—one in the Purchase and Sale Agreement, one in the Limited Warranty issued by Lennar, and one in the general warranty deed. Whiteley sued Lennar in Galveston County District Court alleging mold growth and other defects at the property. Lennar moved for arbitration and its motion was granted. The parties arbitrated the case and Lennar received an award in its favor. Lennar then moved the District Court to confirm the arbitration award, and Whiteley filed a cross-motion to vacate the award, arguing that Lennar’s original motion to compel arbitration should not have been granted. The District Court agreed with Whiteley, vacating the arbitration award. Lennar appealed. The Court of Appeals affirmed the District Court’s vacatur, and Lennar appealed to the Texas Supreme Court. Read the court decision
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Reprinted courtesy of Kim Altsuler - Peckar & Abramson, P.C.
Ms. Altsuler may be contacted at kaltsuler@pecklaw.com

The Law of Patent v Latent Defects

March 19, 2015 — Beverley BevenFlorez-CDJ STAFF
Candice B. Macario of Gordon & Rees LLP analyzed the case Delon Hampton & Associates, Chartered v. The Superior Court of Los Angeles, and stated that “[i]n his case, a design professional successfully challenged a construction defect lawsuit brought against them, on the basis that the defect complained of was open and obvious and the County had ran out of time to bring their action.” Macario recommended “as lawsuits are filed close to the ten year statute of repose, one area to explore in a single issue case is if you can eliminate a cause of action based on patent defects. Moreover, in multi-issue cases for several construction defects, parties should always be aware of analyzing whether issues can be identified as patent and perhaps used as a tool in negotiations, settlement discussions or pre-trial motions.” Read the court decision
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California insured’s duty to cooperate and insurer’s right to select defense counsel

April 14, 2011 — CDCoverage.com

In Travelers Property Casualty Co. v. Centex Homes, No. C 10-02757 (N.D. Cal. April 1, 2011), general contractor Centex was sued by homeowners for construction defects. Centex tendered its defense to Travelers as an additional insured under policies issued by Travelers to two Centex subcontractors. Travelers agreed to defend Centex under a reservation of rights and selected defense counsel to defend Centex. Centex refused to accept the defense, asserting that it was entitled to select defense counsel. Travelers filed suit against Centex seeking a declaratory judgment that Centex had breached the duty to cooperate condition in the Travelers’ policy.

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Reprinted courtesy of CDCoverage.com

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First Circuit: No Coverage, No Duty to Investigate Alleged Loss Prior to Policy Period

May 18, 2020 — Eric B. Hermanson & Austin D. Moody - White and Williams
On April 1, 2020, the First Circuit, applying Massachusetts law, issued a potentially useful decision addressing the Montrose “known loss” language in ISO Form CGL policies. In Clarendon National Insurance Company v. Philadelphia Indemnity Insurance Company,[1] the court applied this language to allow denial of defense for claims of recurring water infiltration that began before the insurer’s policy period, and it found an insurer had no duty to investigate whether the course of property damage might have been interrupted, or whether other property damage might have occurred during the policy period, so as to trigger coverage during a later policy. In the underlying dispute, a condominium owner (Doherty) asserted negligence claims against her association’s property management company (Lundgren) stemming from alleged water infiltration into her condominium. The complaint said leaks developed in 2004 in the roof above Doherty’s unit, and repairs were not made in a timely or appropriate manner. The following year, the complaint said, a Lundgren employee notified Doherty that the threshold leading to her condominium's deck was rotting. In February 2006, Doherty discovered a mushroom and water infiltration on the threshold and notified Lundgren. At that time, Lundgren asked its maintenance and repair contractor (CBD) to replace the rotting threshold. According to the complaint, CBD did not do this repair in a timely manner and left debris exposed in Doherty’s bedroom. In March 2006, the complaint said, a mold testing company hired by Lundgren found hazardous mold in Doherty's unit, caused by water intrusions and chronic dampness. Lundgren’s attempts at remediation were ineffectual. In September 2008, Doherty's doctor ordered her to leave the condominium and not to return until the leaks were repaired and mold was eliminated. Reprinted courtesy of Eric B. Hermanson, White and Williams and Austin D. Moody, White and Williams Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com Mr. Moody may be contacted at moodya@whiteandwilliams.com Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES