FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Arbitration Denied: Third Appellate District Holds Arbitration Clause Procedurally and Substantively Unconscionable

February 15, 2021 — Stephen M. Tye & Lawrence S. Zucker II - Haight Brown & Bonesteel
In Cabatit v Sunnova Energy Corporation, the Third Appellate District held that an arbitration clause in a solar power lease agreement was unenforceable because it was procedurally and substantively unconscionable. In Cabatit, Mr. and Ms. Cabitat entered into a solar power lease agreement (the “Agreement”) with Sunnova Energy Corporation (“Sunnova”). Ms. Cabitat, who signed the agreement, speaks English but does not understand complicated or technical terms. The salesperson scrolled through the agreement language and Ms. Cabatit initialed where the salesperson indicated, even though she did not understand most of what he was saying. The salesperson did not explain anything about the arbitration clause nor did he provide Ms. Cabatit with a copy of the Agreement. Reprinted courtesy of Stephen M. Tye, Haight Brown & Bonesteel and Lawrence S. Zucker II, Haight Brown & Bonesteel Mr. Tye may be contacted at stye@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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What You Need to Know About “Ipso Facto” Clauses and Their Impact on Termination of a Contractor or Subcontractor in a Bankruptcy

September 12, 2022 — Martha B. Chovanes & Laurie A. Stanziale - ConsensusDocs
While contractor bankruptcies have long been an issue in the construction industry, in the aftermath of COVID-19 and the resultant labor, material and supply-chain delays, contractor bankruptcies are of even greater concern. Many construction contracts attempt to protect the upstream party from a bankruptcy filing of its contractor or subcontractor by providing for an automatic right to terminate a contract, referred to as “ipso facto” clauses. However, such clauses are generally unenforceable as bankruptcy laws, specifically Section 365(e) of Title 11 of the United States Code, protect the party filing for bankruptcy (the “Debtor”) from unilateral termination of the contract by the non-Debtor party. What is an “Ipso Facto” clause? An ipso facto clause is a provision in an agreement which permits its termination by one party due to the bankruptcy, insolvency or financial condition of the other party. Reprinted courtesy of Martha B. Chovanes, Fox Rothschild LLP (ConsensusDocs) and Laurie A. Stanziale, Fox Rothschild LLP (ConsensusDocs) Ms. Chovanes may be contacted at mchovanes@foxrothschild.com Ms. Stanziale may be contacted at lstanziale@foxrothschild.com Read the court decision
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The Texas Supreme Court Limits the Use of the Economic Loss Rule

September 03, 2014 — Beverley BevenFlorez-CDJ STAFF
According to David Fisk of Kane Russell Coleman & Logan PC, in an article published by JD Supra Business Advisor, “[T]he Texas Supreme Court issued a per curium opinion limiting the application of the economic loss doctrine or rule, as it is referred to in Texas, in the context of residential construction defect claims.” In Chapman Custom Homes, Inc. v Dallas Plumbing Co., the court “ruled that a plumbing subcontractor assumes an implied duty not to flood or otherwise damage a home while performing its contract with a builder” and that “the economic loss rule does not apply in this context.” Read the court decision
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Will Maryland Beltway Developer's Exit Doom $7.6B P3 Project?

March 13, 2023 — Jim Parsons - Engineering News-Record
Maryland’s controversial $7.6-billion plan to build tolled express lanes along two Washington, DC-area interstates has suffered a potentially fatal blow with the departure of the private development consortium from the project. Reprinted courtesy of Jim Parsons, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Dispute between City and Construction Company Over Unsightly Arches

April 01, 2014 — Beverley BevenFlorez-CDJ STAFF
The city of Swartz Creek, Michigan alleged that Slagter Construction’s work on “Texas-style arches along a new bridge” was “terrible” and doesn’t “match up to what the company promised when it took the job to build the $20,000 walkways that include the arches,” reported M Live. However, Slagter Construction “maintains its repairs were adequate and claims in a letter to the state that the issue shouldn't resolved by local officials who have ‘no formal training or education on these matters.’” According to M Live, “[t]he two sides are set to meet on May 5 with MDOT officials on May 5 in Bay City for arbitration.” Read the court decision
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Are “Green” Building Designations and Certifications Truly Necessary?

January 28, 2019 — Christopher G. Hill - Construction Law Musings
As anyone who reads this construction blog on a regular basis knows, I believe that the move to newer sustainable building practices (while bringing about a new or different set of potential risks) is both necessary and laudable. Because of this fact, you may be asking why the headline for today’s post. After all, I am a LEED AP and assisted in the drafting of the LEED/Green Building addendum to the ConsensusDOCS so I must be pro LEED (or any other) certification of buildings. To the extent that such certification encourages best practices and more sustainable building stock, I am pro certification. However, certification is not a necessary carrot to bring builders around to such practices. As a recent article in EcoHome Magazine (thanks to Todd Hawkins at BuilderFish for alerting me to the article) points out, companies are already moving toward these practices with or without certification and it’s added layer of expense. Economic, air quality, and moral (“its the right thing to do”) factors are pushing executives to such practices. According to EcoHome Magazine, while LEED retains the lions share of green certifications, more and more companies are either using internal standards or trying out other certification programs, including Energy Star. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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No Coverage Under Property Policy With Other Insurance and Loss Payment Provisions

September 17, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The court determined that the other insurance and loss payment provisions relieved the insurer of coverage obligations. Moroney Body Works, Inc. v. Central Ins. Co., 2015 Mass. App. LEXIS 97 (Aug. 6, 2015). A fire destroyed Moroney's custom-built bookmobile that had just been completed. Moroney had two policies: a commercial property policy issued by Central, and a garage insurance policy issued by Pilgrim Insurance Company. Central denied liability for the bookmobile. Pilgrim covered the cost of repairing the bookmobile. It paid $12,449.82 based on the appraiser's estimate of the repair costs. Moroney thought this amount was inadequate given its own estimate of the repair costs. Moroney sued both insurers. Pilgrim settled by paying Moroney an additional amount which, when added to Pilgrim's earlier payment, resulted in Moroney receiving more than the repair cost. Moroney and Central both moved for summary judgment. The trial court granted Moroney's motion. 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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Quick Note: Insurer Must Comply with Florida’s Claims Administration Act

September 14, 2017 — David Adelstein - Florida Construction Legal Updates
As an insured, know YOUR rights under Florida’s Claims Administration Act (Florida Statute s. 627.426). I wrote an article on this exact topic. If a third-party claim is asserted, or in the process of being asserted, against you, do yourself a favor and consult a lawyer that can assist you with preserving your insurance coverage rights. You pay liability insurance premiums for a reason so make sure you are not doing anything that could jeopardize rights under applicable insurance policies. A liability insurer must comply with the Claims Administration Act if it wants to deny coverage based on a coverage defense (e.g., the insured’s failure to cooperate with the insurer). Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

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