FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Denver Court Rules that Condo Owners Must Follow Arbitration Agreement

November 07, 2012 — CDJ STAFF
Prior to initiating a construction defect lawsuit, the Glass House Residential Association voted to invalidate the arbitration agreement that had been written into its declaration and bylaws by the developer and general contractor. After the association started their construction defect claims, the developer and general contractor argued that the case must go to arbitration, as the arbitration clause contained a provision that it could not be altered without the agreement of the developer and general contractor. The Denver District Court has ruled against that association, determining that the res triction was not in violation of Colorado condominium law. And, as a post from Polsinelli Shughart PC on JDSupra notes, the Colorado Common Interest Ownership Act encourages the use of arbitration procedures to settle disputes. The CCIOA does prohibit “certain restrictions on the homeowners association’s ability to amend the condominium declarations,” however, preserving an arbitration agreement is not one of them. Read the court decision
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Factual Issues Prevent Summary Judgment Determination on Coverage for Additional Insured

May 01, 2014 — Tred R. Eyerly – Insurance Law Hawaii
Numerous factual issues prevented the court from deciding at the summary judgment stage whether the additional insured was covered for a personal injury claim that happened on a construction site. Paynes Cranes v. Am States Ins. Co., 2014 U.S. Dist. LEXIS 40485 (E.D. N.Y. March 26, 2014). Intermetal Fabricators, Inc. hired Paynes to provide a crane and driver for the construction of a store. A construction worker was injured while working with the crane. The injured worker sued several defendants, including Paynes. Intermetal had coverage for the project that included additional insureds. The policy provided, “Any person or organization . . . for whom you [Intermetal] are required by written contract, agreement or permit to provide insurance is an insured, subject to the following additional provisions: a. The contract, agreement or permit must be in effect during the policy period . . . and must have been executed prior to the ‘bodily injury,’ ‘property damage,’ 'person and advertising injury.’” 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

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Environmental Suit Against Lockheed Martin Dismissed

August 13, 2014 — Beverley BevenFlorez-CDJ STAFF
A federal judge dismissed an environmental suit against Lockheed Martin, finding that contamination levels on the plaintiffs’ Moorestown, New Jersey properties were not high enough to pose a health threat, according to the New Jersey Law Journal. Two owners who live across the street from the plant had “sued under the Resource Conservation & Recovery Act, the Comprehensive Environmental Response, Compensation & Liability Act and various state statutes.” However, “while the suit was pending, the New Jersey Department of Environmental Protection raised the threshold for concentration levels of substances such as TCE and PCE to warrant additional testing.” Read the court decision
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Court of Appeals Affirms Dismissal of Owner’s Claims Based on Contractual One-Year Claims Limitations Period

October 04, 2021 — Cassidy Ingram - Ahlers Cressman & Sleight
In a recent unpublished decision – Tadych v. Noble Ridge Construction, Inc.– the Washington State Court of Appeals, Division One, held that a one-year contractual claim limitations clause was valid and enforceable. The Tadych decision is important because it reiterates the strict approach courts will take to a claim limitations clause less than the statutory six years for breach of contract claims prescribed by RCW 4.16.040(1). In other words, when the parties agree to shorten the limitations period, the agreement will be enforced barring any procedural or substantive unconscionability. In Tadych, plaintiff owners (the Tadychs) contracted with defendant contractor (Noble Ridge Construction, Inc., or NRC) for the construction of a custom home in 2012. The contract provided a one-year claim limitations clause in which claims could be raised, and that all claims not raised in the one-year period would be waived. In December 2013, as the project neared completion, the Tadychs met with NRC to identify any outstanding project issues. The Tadychs noted several, including rainwater pools at the landing at the bottom of the stairs and several nicks and cracks on the stucco exterior walls. Read the court decision
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Reprinted courtesy of Cassidy Ingram, Ahlers Cressman & Sleight
Ms. Ingram may be contacted at cassidy.ingram@acslawyers.com

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No Coverage for Co-Restaurant Owners Who Are Not Named In Policy

August 24, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The Federal District Court denied two plaintiffs' claims for breach of the policy and for bad faith because they were not insureds under the policy. Tu v. Dongbu Ins. Co., 2017 U.S. Dist. LEXIS 115200 (N.D. Calif. July 24, 2017). Dongbu, a Hawaii insurance company, issued a two-year policy to Plaintiff Ken Tu for his business. He was the only named insured under the policy. The waste system at Plaintiffs' restaurant failed, causing fumes to impact neighboring tenants and waste to contaminate the underlying soil. Plaintiffs were forced to close the restaurant. A claim was tendered for damage and repair, loss of business income, and other insured losses. Dongbu denied coverage. 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

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California’s Right To Repair Act Is The Sole Remedy For Damages For Construction Defects In New Residential Construction

March 14, 2018 — Mark Johnson – Real Estate Litigation Blog
The California Supreme Court ruled in McMillin Albany LLC et al. v. The Superior Court of Kern County, (1/18/2018) 4 cal. 5th 241, that California’s Right to Repair Act, California Civil Code sections 895 et seq. (“Act”) is the sole remedy for construction defect claims for economic loss and property damages regarding new residential construction. The Act establishes a pre-litigation dispute resolution process that must be followed before filing a construction defect action for new residential construction purchased after January 1, 2003. The Act provides a builder with the right to attempt to repair construction defects before litigation is filed. The McMillin ruling resolved a split among two court of appeal decisions regarding the scope of the Act: Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 and Burch v. Superior Court [(2014) 223 Cal.App.4th 1411. Those cases held that the Act is not the exclusive remedy for construction defect lawsuits that allege property damage arising from new residential construction. Therefore owners of new residential construction where construction defects had caused property damage were not required to proceed under the Act and instead could proceed with common law claims. McMillilin removes that option. Read the court decision
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Reprinted courtesy of Mark Johnson, Snell & Wilmer
Mr. Johnson may be contacted at majohnson@swlaw.com

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It’s a COVID-19 Pandemic; It’s Everywhere – New Cal. Bill to Make Insurers Prove Otherwise

August 17, 2020 — Scott P. DeVries & Andrea DeField - Hunton Andrews Kurth
On June 29, in a development that may fundamentally change the landscape for California businesses which have sustained COVID-19 related business interruption loss, two California legislators amended pending legislation to address several of the most hotly contested issues regarding insurance recovery for these devastating losses. The bill, Assembly Bill 1552, focuses on All-Risk property insurance policies. As amended, it would create a “rebuttable presumption” that COVID-19 was present on and caused physical damage to property which was the direct cause of business interruption. A similar rebuttable presumption would apply to orders of civil authority coverage and to ingress/egress coverage. The bill would further prohibit COVID-19 from being construed as a pollutant or contaminant for purposes of any policy exclusion unless the exclusion specifically referred to viruses. The bill would apply to any All-Risk policy in effect on or after March 4, 2020 and is written to satisfy the standards for an “urgency” statute, taking effect immediately upon being signed into law. Reprinted courtesy of Scott P. DeVries , Hunton Andrews Kurth and Andrea DeField, Hunton Andrews Kurth Mr. DeVries may be contacted at sdevries@HuntonAK.com Ms. DeField may be contacted at adefield@HuntonAK.com Read the court decision
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Texas Supreme Court Finds Payment of Appraisal Award Does Not Absolve Insurer of Statutory Liability

April 19, 2021 — Allison Griswold & Sarah Smith - Lewis Brisbois
The Texas Supreme Court recently published its long-awaited decision in the Hinojos v. State Farm Lloyds. In it, the court affirmed its holding in Barbara Technologies, finding that payment of an appraisal award does not absolve an insurer of statutory liability when the insurer accepts a claim but pays only part of the amount it owes within the statutory deadline, and a policy holder can proceed with an action under the Texas Prompt Payment of Claims Act. In 2013, Louis Hinojos made a claim for storm damage to his home. State Farm’s initial inspection resulted in an estimate below the deductible, but Hinojos disagreed and requested a second inspection. At the second inspection, the adjuster identified additional damage resulting in a payment to Hinojos of $1,995.11. Hinojos then sued State Farm – and State Farm invoked appraisal approximately 15 months after suit was filed. The appraisal resulted in State Farm tendering an additional payment of $22,974.75. State Farm moved for summary judgment, arguing that timely payment of an appraisal award precluded prompt payment (or Chapter 542) damages. The trial court granted summary judgment and Hinojos appealed (notably Barbara Technologies had not yet been decided). The Court of Appeals affirmed State Farm’s victory on the basis that “State Farm made a reasonable payment on Hinojos’s claim within the sixty-day statutory limit….” Hinojos petitioned the Texas Supreme Court for review. Reprinted courtesy of Allison Griswold, Lewis Brisbois and Sarah Smith, Lewis Brisbois Ms. Griswold may be contacted at Allison.Griswold@lewisbrisbois.com Ms. Smith may be contacted at Sarah.Smith@lewisbrisbois.com Read the court decision
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