Fairfield Connecticut Building Expert Directory

Loss Ensuing from Faulty Workmanship Covered

April 28, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The court found coverage for damage resulting from faulty workmanship. Drury Co. v. Mo. United Sch. Ins. Counsel, 2014 Mo. App. LEXIS 319 (Mo. Ct. App. March 25, 2014). The School District entered a contract with general contractor, Penzel Construction Company, Inc., to build an addition to a high school. Under the prime contract, the School District was to purchase property insurance, including builder's risk "all-risk" coverage. The policy was to cover the interests of the owner, the contractor, subcontractors and sub-subcontractors in the project. The School District obtained a policy from Missouri United School Insurance Counsel (MUSIC). Exclusions in the all-risk policy included loss due to faulty workmanship or materials, "unless loss by a peril not otherwise excluded ensues and then MUSIC shall be liable only for such ensuing loss." 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

A Property Tax Exemption, Misapplied, in Texas

June 18, 2019 — Anthony B. Cavender - Gravel2Gavel
In an important ruling for Texas businesses, the Texas Supreme Court has unanimously ruled that the TCEQ misapplied the Texas property tax’s exemption for specified pollution control equipment. Since 1993, the Texas Constitution has included a provision which authorizes the Texas Legislature to exempt from ad valorem taxation “all or part of real and personal property used … wholly or partly … for the control or reduction of air, water or land pollution.” This provision is implemented by Section 11.31 of the Texas Tax Code, which is administered by the Texas Commission on Environmental Quality. (See the rules at Title 30, Chapter 17 of the Texas Administrative Code.) If the Executive Director of the TCEQ determines that the equipment is used wholly or partly for pollution control, he issues a “positive use determination”; in the event it does not, the Executive Director issues a “negative use determination and rejects the application for the exemption. In 2007, Section 11.31 was amended at 11.31 (k) to list several items of equipment that are presumed to be pollution-control equipment, including “heat recovery steam generators” or HRSGs. This equipment is used by powerplants to reduce nitrogen oxide emissions that are the product of generation of electricity. Several applications were submitted to the TCEQ by the Brazos Electric Power Cooperative, seeking a tax exemption for its HRSG units. In July 2012, the TCEQ denied these applications, with the flat declaration that HRSGs are not pollution-control equipment—“they are used solely for production.” The Brazos Cooperative sued the Commission, and on May 3, 2019, in the case of Brazos Electric Power Cooperative, Inc. v. TCEQ, the Texas Supreme Court issued a unanimous opinion reversing the Commission, and the lower court (the Eight Court of Appeals, sitting in El Paso) that affirmed the Commission’s action. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Crisis Averted! Pennsylvania Supreme Court Joins Other Courts in Finding that Covid-19 Presents No Physical Loss or Damage for Businesses

October 21, 2024 — Edward M. Koch & Marc L. Penchansky - White and Williams LLP
Seeking to find some relief from business losses experienced during the COVID-19 pandemic, many businesses turned to their property insurers for coverage for their lost income. A clear national trend emerged among courts deciding the issue, as most businesses could not establish coverage because they had not experienced a “direct physical loss of or damage to their covered property” as required by most policies. While this legal question may have become an afterthought for many attorneys, the question remained an open one in Pennsylvania while the Pennsylvania Supreme Court considered two contradictory holdings issued in the Superior Court on this topic. Compare Macmiles, LLC v. Erie Ins. Exch., 286 A.3d 331 (Pa. Super. 2022) (holding there was no coverage for loss of use of a commercial property unaccompanied by any physical alteration or other physical condition that rendered the property unusable or uninhabitable) with Ungarean v. CNA, 286 A.3d 353 (Pa. Super. 2022) (holding that the policy at issue was ambiguous and therefore the policy covered the insured for COVID-related business losses). Last week, the Supreme Court considered the Superior Court’s holdings in Macmiles and Ungarean and held, at long last, that COVID-19 did not cause a direct physical loss of or damage to covered property. Reprinted courtesy of Edward M. Koch, White and Williams LLP and Marc L. Penchansky, White and Williams LLP Mr. Koch may be contacted at koche@whiteandwilliams.com Mr. Penchansky may be contacted at penchanskym@whiteandwilliams.com Read the court decision
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Seventh Circuit Remands “Waters of the United States” Case to Corps of Engineers to Determine Whether there is a “Significant Nexus”

July 10, 2018 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog
On June 27, the U.S. Court of Appeals for the Seventh Circuit decided the case of Orchard Hill Building Co. v. U.S. Army Corps of Engineers. The Court of Appeals vacated the decision of the District Court granting the U.S. Army Corps of Engineers’ (Corps) motion for summary judgment dismissing the Orchard Hill Building Company’s (Orchard) complaint that the Corps’ jurisdictional determination erroneously found that the waters at issue were “jurisdictional waters” under the Clean Water Act (CWA) subject to the Corps’ jurisdiction. Acknowledging that the Corps and EPA had promulgated a new rule re-defining “waters of the United States” in 2015—which is now being challenged in the courts—the Court of Appeals noted that this case is controlled by the pre-2015 definition of “waters of the United States.” The Court of Appeals remanded the case to the Corps, directing it to determine if there was a significant nexus, as required. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury Winthrop Shaw Pittman LLP
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Federal Court Sets High Bar for Pleading Products Liability Cases in New Jersey

November 11, 2024 — Lian Skaf - The Subrogation Strategist
Products liability is an area of law that both sides of the aisle vigorously litigate. Like in most litigation, products liability claims provide subrogation attorneys with an important means of prosecuting cases against manufacturers, sellers, and other entities in the stream of commerce. Of course, these claims also come with numerous “buyer beware” requirements. New Jersey allows products liability claims and the United States District Court for the District of New Jersey (District Court) clarified how such claims should be plead in Cambridge Mut. Fire Ins. Co. a/s/o David Krug vs. Stihl, Inc., No. 22-05893, 2024 U.S. Dist. LEXIS 178804 (D. N.J.). After becoming subrogated to the rights of its insured, Cambridge Mutual Fire Insurance Company (Cambridge) filed suit against Stihl, Inc. (Stihl) in the Superior Court of New Jersey, Morris County, Law Division. Stihl then removed the case to federal court. Once in federal court, Stihl filed a motion to dismiss the action. The District Court granted the motion, doing so in part with prejudice and in part without prejudice. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

Trial Victory in San Mateo County!

February 24, 2020 — Wilke Fleury
Wilke Fleury attorneys Adriana Cervantes and Matt Powell recently prevailed at trial in a case involving a real property dispute in San Mateo County. Wilke Fleury represented the owner of an apartment building in an action against an individual who recently acquired the duplex on the adjoining property. As set forth in the pleadings, the Apartment’s owner, tenants, and invitees, used the property in many ways including access, parking, and recreational purposes for over five years, and the new owner had actual notice of that use before the purchase. Nonetheless, the new owner insisted the Apartment had no right to use the property, and filed an action to quiet title. Wilke Fleury filed a cross-complaint on behalf of the Apartment alleging that it had a prescriptive easement over the property. Read the court decision
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Reprinted courtesy of Wilke Fleury

Timely Legal Trends and Developments for Construction

February 18, 2019 — Matt Viator - Construction Executive
The construction industry is broad and the legal concerns of industry members can be far-reaching. What seems like tomorrow’s problem often jumps to the forefront and becomes a high priority today. 2018 was full of moments like these – and it’s important to keep track of legal developments for a glimpse at what may be waiting around the corner. With that in mind, here are some of the most important legal developments for the construction industry from the second half of 2018. Sureties and Litigation – a Broad Topic Sureties play a vital role on construction projects. On federal jobs and state, county or municipal jobs, surety bonds are typically required. That means it’s important to stay on top of how the courts are treating surety agreements. Reprinted courtesy of Matt Viator, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Denver’s Proposed Solution to the Affordable Housing Crisis

March 06, 2022 — Taylor Ostrowski - Colorado Construction Litigation Blog
Over the past ten years, Colorado has seen a population growth of almost 15 percent, with many residing in Denver. In fact, in 2020, Denver ranked among the top five cities for inbound growth in the United States. At the same time, from 2010 through 2020, the state’s production of new housing decreased by 40 percent. The decrease in supply, coupled with the increase in demand has exasperated the already rising cost of housing in the state. This, along with other external factors such as job loss due to the COVID pandemic, has resulted in a statewide housing crisis. The City of Denver is proposing a revision to the municipal code that would expand affordable housing through three main tools: (1) increasing “linkage fees,” (2) requiring new multi-family development to designate a percentage of units to be affordable, and (3) offering zoning and financial incentives. The proposal addresses both rental housing and ownership opportunities. Although it is essential to combat the housing crisis and increased homelessness in the region, it is equally important to understand the impacts the proposed affordable housing ordinance would have on developers, if and when enacted. Read the court decision
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Reprinted courtesy of Taylor Ostrowski, Higgins, Hopkins, McLain & Roswell, LLC
Ms. Ostrowski may be contacted at ostrowski@hhmrlaw.com

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