Fairfield Connecticut Building Expert Directory

Negligence Per Se Claim Based Upon Failure to Pay Benefits Fails

December 21, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Ninth Circuit affirmed the district court's issuance of the insurer's motion for summary judgment, thereby rejecting the insureds' negligence per se claim for failure to pay benefits. Braun-Salinas v. Am Family Ins. Group, 2016 U.S. App. LEXIS 19555 (9th Cir. Oct. 28, 2016). The insureds argued that Oregon recognized a negligence per se claim based on an insurer's failure to pay benefits in violation of the statutory standard under state law. Oregon appellate courts, however, only allowed a negligence per se claim only where a negligence claim otherwise existed. The Oregon courts had previously rejected a statutory theory, holding that a violation of the statute did not give rise to a tort action. 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

CGL Policy Covering Attorney’s Fees in Property Damage Claims

December 11, 2018 — David Adelstein - Florida Construction Legal Updates
Does a CGL policy cover attorney’s fees and costs in property damages claims, to the extent there is a contractual or statutory basis to recover attorney’s fees? Naturally, you need to review the policies and this is not a clear-cut issue, but there is law to argue under. A case I have argued in support of CGL policies providing for coverage for attorney’s fees as a component of property damage claims when there is a contractual or statutory basis is Assurance Co. of America v. Lucas Waterproofing Co., Inc., 581 F.Supp.2d 1201 (S.D.Fla. 2008). In this case, the following applied:

The policy provided coverage for “those sums that the insured becomes legally obligated to pay as damages of… ‘property damage’….
Property damage was defined as “physical injury to tangible property, including all resulting loss of use of that property.”
The term damage, in of itself, was not defined in the policy.

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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

A Court-Side Seat – Case Law Update (February 2022)

March 06, 2022 — Anthony B. Cavender - Gravel2Gavel
It is already early in 2022, but several important environmental cases have already been decided by the federal district and federal appellate courts. THE COURTS OF APPEAL The U.S. Court of Appeals for the Fourth Circuit West Virginia State University Board of Governors v. The Dow Chemical Company, et al. On January 10, 2022, the court decided this case, in which Dow and the other defendants attempted to remove a state groundwater contamination lawsuit to federal court, citing the federal officer removal statute and the presence of a significant federal question. Both the federal district court and the appellate court rejected these arguments and remanded the lawsuit to the state court. For many years, Dow and other parties had been engaged in a RCRA hazardous waste cleanup at an industrial site located in Institute, West Virginia. RCRA permits and corrective action authorizations were issued or supervised by EPA. The plaintiffs complained that the groundwater cleanup, insofar as it affected their property, was deficient, which compelled them to supplement the ongoing federal cleanup with a lawsuit based on West Virginia causes of action and unique to their property. After a careful review of the record, the Fourth Circuit held that the defendants were not acting under the “subjection, guidance or control” of the EPA, and therefore the federal officer removal statute did not apply. Moreover, there was no federal question to resolve as the separate state lawsuit did not challenge a CERCLA cleanup nor did it arise from the RCRA remedial measures that had been taken. 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

Arizona Rooftop Safety: Is it Adequate or Substandard?

October 01, 2014 — Beverley BevenFlorez-CDJ STAFF
The Wall Street Journal reported that the Occupational Safety and Health Administration (OSHA) recently “took the unprecedented step of formally proposing to take over construction workplace safety in Arizona because it said the state doesn't require proper fall protection.” OSHA’s deputy director, Jordan Barab, told the Wall Street Journal, “We told them we did not think their standard…was at least as effective as ours.” However, “[a] spokeswoman for Arizona's state workplace enforcement agency countered that the state's requirements are adequate, adding that it will respond to the federal notice ‘as appropriate.’” Read the court decision
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Illinois Appellate Court Finds That Damages in Excess of Policy Limits Do Not Trigger Right to Independent Counsel

June 22, 2020 — Jason Taylor - Traub Lieberman
Under Illinois law, an insurer’s duty to defend includes the right to control the defense, which allows insurers to protect their financial interest in the outcome of the litigation. However, where a conflict of interest exists, the insured, rather than the insurer, is entitled to assume control of the defense of the underlying action. If this occurs, the insurer satisfies its obligation to defend by reimbursing the insured for the cost of defense provided by independent counsel selected by the insured. What circumstances and situations arise to the level of an actual conflict of interest between the insurer and insured are often grounds for dispute. In Joseph T. Ryerson & Son, Inc. v. Travelers Indemnity Co. of America, 2020 IL App (1st) 182491 (Apr. 7, 2020), the Illinois Appellate Court addressed whether damages awarded by a jury in excess of the policy limits were sufficient to trigger a right to independent counsel for post-trial and appellate proceedings. According to the Illinois Appellate Court, at least under the facts of the Ryerson case, the answer is “no.” In Ryerson, Nancy Hoffman sued Ryerson for injuries sustained in a tractor-trailer accident. Ryerson tendered the suit to its primary insurer, Travelers, and its umbrella insurer, Illinois National. The policy limits were $2 million and $25 million, respectively. A jury found in favor of Hoffman for over $27.6 million in damages, and Ryerson appealed. Read the court decision
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Reprinted courtesy of Jason Taylor, Traub Lieberman
Mr. Taylor may be contacted at jtaylor@tlsslaw.com

Colorado Legislature Kills SB 20-138 – A Bill to Extend Colorado’s Statute of Repose

June 22, 2020 — David M. McLain – Colorado Construction Litigation
As previously reported, SB 20-138, “Concerning Increased Consumer Protection for Homeowners Seeking Relief for Construction Defects,” would have extended the Colorado statute of repose applicable to construction defect claims. Senate Bill 20-138, if enacted, would have:

Extended Colorado’s statute of repose for construction defects from 6+2 years to 10+2 years;
Required tolling of the statute of repose until the claimant discovers not only the physical manifestation of a construction defect, but also its cause; and
Permitted statutory and equitable tolling of the statute of repose.

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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

3D Printing: A New Era in Concrete Construction

April 11, 2022 — Zoey Zhao - Construction Executive
The construction of buildings using concrete has been around since the time of the Romans. In all those centuries, concrete structures have been built using essentially the same method: forms, reinforcement, mixing, pouring, setting, repeat. The process is costly and time-consuming. The construction of the forms alone demands dozens of workers and requires a substantial amount of lumber, keeping labor and materials costs high. Builders might save some time using prefabricated concrete blocks, but such materials are not appropriate for every construction project and carry their own expenses. For the first time in history, builders have an alternative to traditional concrete construction methods that are more cost-effective, less expensive, more environmentally friendly and allow for a wide range of possible construction projects. Three-dimensional concrete printing for construction has emerged in the building field as a viable and efficient alternative. Reprinted courtesy of Zoey Zhao, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Ms. Zhao may be contacted at zoey@aictbuild.com

Most Common OSHA Violations Highlight Ongoing Risks

July 27, 2020 — David M. McLain – Colorado Construction Litigation
In the 12 months from October 2018 through September 2019, the most recent period reported by OSHA,[1] the workplace safety agency cited the following standards[2] more than any other in the 28 states which do not have OSHA-approved state plans, including Colorado:

1926.501 – Duty to have fall protection – included in 459 citations, resulting in $2,475,596 in penalties ($5,393/citation);
1926.451 – General requirements for scaffolds – included in 265 citations, resulting in $834,324 in penalties ($3,148/citation);
1926.1053 – Requirements for ladders including job-made ladders – included in 164 citations, resulting in $354,853 in penalties ($2,163/citation);
1926.503 – Training requirements related to fall protection - included in 114 citations, resulting in $156,076 in penalties ($1,369/citation);
1926.405 - Wiring methods, components, and equipment for general use – included in 93 citations, resulting in $150,821 in penalties ($1,621/citation);
1926.20 - General safety and health provisions – included in 85 citations, resulting in $328,491 in penalties ($3,864/citation);
1926.1052 – Requirements for stairways – included in 79 citations, resulting in $155,651 in penalties ($1,970/citation);
1926.102 – Requirements for eye and face protection - included in 67 citations, resulting in $165,595 in penalties ($2,471/citation);
1926.403 – General requirements for electrical conductors and equipment – included in 63 citations, resulting in $146,050 in penalties ($2,318/citation), and;
1926.100 – Requirements for head protection – included in 55 citations, resulting in $127,274 in penalties ($2,314/citation).