FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Encinitas Office Obtains Complete Defense Verdict Including Attorney Fees and Costs After Ten Day Construction Arbitration

May 23, 2022 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Partner Vik Nagpal and Associate Attorney Tim McNulty of the Encinitas office recently obtained a substantial victory on behalf of BWB&O’s client after a 10-day binding construction arbitration before a three-arbitrator panel of the American Arbitration Association. BWB&O’s client was sued by the Owner of a commercial office building related to a multimillion-dollar tenant improvement project in San Diego. The Owner asserted construction defect damages, delay damages, architectural negligence, fraudulent billing practices and consequential damages of $3.6 million dollars. BWB&O’s client claimed breach of contract damages against the owner for failure to pay invoices. The Owner who had substantial financial resources and a personal spite against the general contractor, unreasonably pursued the case with an extensive team of lawyers and experts. At an earlier full-day mediation, the owner rejected a reasonable settlement offer which included a settlement payment to the Owner and the client’s agreement to dismiss their affirmative claim for damages. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Motion to Dismiss Denied Regarding Insureds' Claim For Collapse

October 29, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The federal district court denied the insurer's motion to dismiss claims for loss due to the imminent collapse of the insureds' basement walls. Belz v. Peerless Ins. Co., 2014 WL 4364914 (D. Conn. Sept. 2, 2014). The insureds noticed cracks throughout their basement walls. It was discovered that the condition was the result of a chemical compound used in the concrete of certain basement walls in the late 1980s and early 1990s. The insureds contended that due to the cracking, the basement walls suffered a substantial impairment to their structural integrity making it only a matter of time until the walls collapsed. The insureds notified their insurer, Peerless. An engineer hired by Peerless determined the walls' condition was caused by poor workmanship and defective materials. On this basis, Peerless 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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Fraud, the VCPA and Construction Contracts

November 26, 2014 — Christopher G. Hill – Construction Law Musings
I’ve discussed the economic loss rule here at Musings on several occasions. The economic loss rule basically states that where one party assumes a duty based in contract or agreement, the Virginia courts will not allow a claim for breach of that duty to go forward as anything but a contract claim. This doctrine makes fraud claims nearly, though not absolutely, impossible to maintain in a construction context. In a majority of instances, fraud and construction contracts are very much like oil and water, leaving parties to fight it out over the terms of a particular contract despite actions by one party or the other that non-lawyers would clearly see as fraud. However, a recent case decided by the Virginia Supreme Court gives at least some hope to those who are seemingly fooled into entering a contract that they would not other wise have entered into. In Philip Abi-Najm, et. al, v Concord Condominium, LLC, several condominium purchasers sued Concord under for breach of contract, breach of the Virginia Consumer Protection Act (VCPA) and for fraud in the inducement based upon flooring that Concord installed that was far from the quality stated in the purchase contract. Based upon these facts, the Court looked at two questions: 1. Did a statement in the contract between Concord and the condo buyers create a situation in which the merger doctrine barred the breach of contract claim, and 2. Did the economic loss rule bar the VCPA and fraud claims? Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Is Solar the Next Focus of Construction Defect Suits?

June 28, 2013 — CDJ STAFF
There’s been a rapid growth in the sale of solar panels, and that’s lead some industry observers to wonder if manufacturers have been cutting back on quality. Current use of solar is six times what it was in 2008, with more than forty percent of that in the last year. The growth shows no sign of stopping, either. The Solar Energy Industry Association expects the amount of power generated by solar to increase by more than two-thirds in 2013. With the oversupply, some fear that companies are relaxing their quality control. The New York Times found that there were widespread problems of defective units in solar cells, chiefly those manufactured in China. The Times article noted that at two solar plants in Spain, defect rates reached 34.5 percent. Some industry observers disagree. The Insurance Journal quoted Andy Klump, the CEO of Clean Energy Associates, a Shanghai firm that provides quality assurance in the solar industry, who said that if a business had a 34 percent failure rate, “they would be out of business in a heartbeat.” Mr. Klump described the Times article as “not realistic.” If the Times is right, Scott Turner, a construction insurance attorney, feels that the industry should ready itself for “a wave of large lawsuits.” Turner feels that “this litigation wave could make the battles over liability and insurance coverage for Chinese drywall seem like a small claims dispute.” Read the court decision
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Despite Misapplying California Law, Federal Court Acknowledges Virus May Cause Physical Alteration to Property

October 26, 2020 — Scott P. DeVries, Michael S. Levine & Michael L. Huggins - Hunton Insurance Recovery Blog
On August 28, Judge Stephen V. Wilson of the Central District of California, entered the latest ruling in the ongoing saga of the COVID-19 business interruption coverage dispute between celebrity plaintiff’s attorney Mark Geragos and Insurer Travelers. The case, 10E, LLC v. The Travelers Indemnity Co. of Connecticut, was filed in state court. Travelers removed to federal court, where Geragos sought remand and Travelers moved to dismiss. Judge Wilson denied remand and granted the Motion to Dismiss, finding plaintiff did not satisfactorily allege the actual presence of COVID-19 on insured property or physical damage to its property. This holding is inconsistent with long standing principles of California insurance law and appears to improperly enhance the minimal pleading threshold under Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (To survive a motion to dismiss, a complaint need only allege a claim “that is plausible on its face.”). After rejecting Geragos’ attempt to have the case remanded based on a finding that Geragos had fraudulently joined a defendant to avoid removal, the Judge proceeded to the Motion to Dismiss which raised three issues: (1) the effect of the Virus Exclusion in the Travelers’ Policy, (2) whether plaintiff failed to allege that the governmental orders prohibited access to its property, and (3) whether plaintiff could “‘plausibly allege that it suffered ‘direct physical loss or damage to property’ as required for civil authority coverage.’” Rather than address the effect of the exclusion, which would be the narrowest issue (this exclusion is not present in all policies), the Court proceeded directly to the third issue, which has the broadest potential application. Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth, Michael S. Levine, Hunton Andrews Kurth and Michael L. Huggins, Hunton Andrews Kurth Mr. DeVries may be contacted at sdevries@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Huggins may be contacted at mhuggins@HuntonAK.com Read the court decision
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Mortenson Subcontractor Fires Worker Over Meta Data Center Noose

April 19, 2022 — James Leggate - Engineering News-Record
A worker on a data center project for Facebook parent company Meta in Utah was fired after admitting to tying a noose at the worksite where racist graffiti had also been found months earlier. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Second Circuit Denies Petitions for Review of EPA’s Final Regulations to Establish Requirements for Cooling Water Intake Structures

August 20, 2018 — Anthony B. Cavender - Gravel2Gavel
On July 23, 2018, the U.S. Court of Appeals for the Second Circuit decided the case of Cooling Water Intake Structure Coalition v. EPA. Environmental conservation groups and industry associations petitioned for review of a final rule promulgated by the U.S. Environmental Protection Agency (EPA) pursuant to section 316(b) of the Clean Water Act (CWA), establishing requirements for cooling water intake structures at existing facilities. Denying the petitions for review, the Court of Appeals summarized:

“Because we conclude, among other things, that both the Rule and the biological opinion are based on reasonable interpretations of the applicable statutes and sufficiently supported by the factual record, and because the EPA 3 gave adequate notice of its rulemaking, we DENY the petitions for review.”

This is a significant CWA and Endangered Species Act (ESA) decision involving the operation of major industrial facilities requiring the daily use of large amounts of water taken from adjacent bodies of water. 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

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Application Of Two Construction Contract Provisions: No-Damages-For-Delay And Liquidated Damages

February 14, 2022 — David Adelstein - Florida Construction Legal Updates
A recent Florida opinion between a prime contractor and a Florida public body touches upon two important issues: (1) the application of a no-damage-for-delay provision; and (2) the application of a liquidated damages provision. Both provisions find there way into many construction contracts. Unfortunately, the opinion is sparse on facts. Nevertheless, the application of these provisions is worthy of consideration. In this opinion, Sarasota County v. Southern Underground Industries, Inc., 2022 WL 162977 (Fla. 2d DCA 2022), a county hired a contractor to install sanitary and water piping underneath a waterway. During construction, a nearby homeowner complained that vibration from the drilling caused damage to his home. As a result, the county stopped the contractor’s work to address a potential safety issue, as it was contractually entitled to do. The contractor hired a structural engineer to inspect the house and the engineer issued a report determining that any alleged damage was cosmetic and that there was sufficient monitoring of the vibrations to prevent future damage. The contractor also had an insurance policy to cover any homeowner claim for damage. However, upon receipt of the engineer’s report, the county did not lift its stop work order. Rather, the stop work order remained in place for an additional 71 days. 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

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