Fairfield Connecticut Building Expert Directory

Insurer Could Not Rely on Extrinsic Evidence to Circumvent Its Duty to Defend

February 14, 2023 — Lorelie S. Masters & Yaniel Abreu - Hunton Insurance Recovery Blog
In First Mercury Insurance Co. v. First Florida Building Corp., et al., a federal district court ordered that an insurer had a duty to defend its insured against an underlying personal injury lawsuit. 2023 WL 23116, at *1 (M.D. Fla. Jan. 3, 2023). First Mercury is a cautionary tale about how insurers may try to circumvent their obligations by improperly considering extrinsic evidence when determining whether they have a duty to defend their insureds. First Mercury is a coverage dispute over an underlying personal injury lawsuit that was filed against the insured, a construction company, for injuries the claimant allegedly sustained at a construction site. Id. The claimant alleged that he was at the construction site as an invitee who was “working with” the insured. Id. The insurer agreed to defend the insured against the personal injury lawsuit under a reservation of rights. Id. However, the insurer filed a coverage action seeking a declaration that coverage for the personal injury lawsuit was excluded under the policy. Id. Specifically, the insurer, on summary judgment, argued that the claimant was an employee of the insured who was injured in the course of his employment, thus falling within the employer’s liability and workers’ compensation exclusions in the policy. Id. Although the insurer acknowledged that the personal injury complaint against the insured triggered its duty to defend under the policy, the insurer argued that those exclusions relieved its duty to defend or indemnify the insured. Id. Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth and Yaniel Abreu, Hunton Andrews Kurth Ms. Masters may be contacted at lmasters@HuntonAK.com Mr. Abreu may be contacted at yabreu@HuntonAK.com Read the court decision
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Lenders and Post-Foreclosure Purchasers Have Standing to Make Construction Defect Claims for After-Discovered Conditions

October 10, 2013 — W. Berkeley Mann, Jr. — Higgins, Hopkins, McLain & Roswell, LLC
The Colorado Court of Appeals has decided a case which answers a question long in need of an answer: do banks/lenders have standing to assert construction defect claims when they receive title to a newly-constructed home following a foreclosure sale or deed-in-lieu of foreclosure? The decision was released on August 1, 2013, in the case of Mid Valley Real Estate Solutions V, LLC v. Hepworth-Pawlack Geotechnical, Inc., Steve Pawlak, Daniel Hadin, and S K Peightal Engineers, Ltd. (Colorado Court of Appeals No. 13CA0519). The background facts of the case are typical of a Colorado residential construction defect case generally. A developer contracted for an analytical soil engineering report from a geotechnical engineering firm (H-P) which made a foundation recommendation. The developer’s general contractor then retained an engineering firm (SPKE) to provide engineering services, including a foundation design. The general contractor built the foundation in accordance with the H-P and SPKE criteria and plans. The house was not sold by the developer and went into default on the construction loan. These events resulted in a deed-in-lieu of foreclosure to a bank-controlled entity which purchased the house for re-sale. Shortly after receiving the developer’s deed, the bank-related entity discovered defects in the foundation that resulted in a construction defect suit against the two design firms and related individuals. Read the court decision
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Reprinted courtesy of W. Berkeley Mann, Jr.
W. Berkeley Mann, Jr. can be contacted at mann@hhmrlaw.com

Real Estate & Construction News Round-Up (11/03/21)

December 06, 2021 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
Amenity-rich buildings become a key focus in enticing employees back into the office, supply chain links are strained by a lack of storage capacity in warehouses and port areas, green lease signings are on the uptick, and more.

In an effort to draw employees back into the office and retain talent in a tight labor market, businesses are spending more than ever on upscale workspaces, paying high rents for modern, amenity-rich buildings. (Peter Grant, The Wall Street Journal)
As sustainability and ESG factors become increasingly important, net-zero carbon commitments are emerging as the next big “must-have” for commercial real estate owners, as more than 100 businesses and organizations have signed on to the World Green Building Council’s Net Zero Carbon Buildings Commitment, which seeks to decarbonize the buildings sector by 2050 and get halfway there by 2030. (Elsa Wenzel, GreenBiz)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

Alabama Court Upholds Late Notice Disclaimer

August 20, 2018 — Brian Margolies - TLSS Insurance Law Blog
In its recent decision in Evanston Ins. Co. v. Yeager Painting, LLC, 2018 U.S. Dist. LEXIS 130316 (N.D. Ala. Aug. 3, 2018), the United States District Court for the Northern District of Alabama had occasion to consider an insured’s reporting obligations under a general liability policy. Evanston’s insured, Yeager, was hired to sandblast water tanks, and in turn, subcontracted out the work to a third party. On May 19, 2012, an employee of the subcontractor was severely injured in connection with a work-site accident. It is not entirely clear when Yeager provided notice of occurrence to Evanston, although Evanston advised by letter dated January 30, 2013 that it would be further investigating the matter subject to a reservation of rights. Evanston subsequently denied coverage by letter dated April 10, 2013, the disclaimer based on a subcontractor exclusion on the policy. Notably, Evanston’s letter advised that Yeager should immediately contact Evanston if any facts changed or if it had any additional information concerning the matter. Read the court decision
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Reprinted courtesy of Brian Margolies, Traub Lieberman Straus & Shrewsberry LLP
Mr. Margolies may be contacted at bmargolies@tlsslaw.com

An Obligation to Provide Notice and an Opportunity to Cure May not End after Termination, and Why an Early Offer of Settlement Should Be Considered on Public Works Contracts

August 17, 2020 — Jeff Kaatz - Ahlers Cressman & Sleight
In 2015, the City of Puyallup (“City”) and Conway Construction Company (“Conway”) executed a public works contract for road improvements (“Project”). On March 9, 2016, approximately four months after work started on the Project, the City issued Conway a notice of suspension and breach of contract and identified nine defective and uncorrected work and safety concerns. Conway denied any wrongdoing, and on March 25, 2016, the City issued a notice of termination for default and withheld payments due to Conway. Conway subsequently filed suit in Pierce County Superior Court and alleged the City’s termination for default breached the contract and sought a determination that the City’s termination for default was improper and should be deemed a termination for convenience. Conway sought approximately $1.25 million in damages and recovery of its attorney fees and costs. Following a bench trial, the Trial Court found the City breached the contract and awarded Conway damages, attorney fees, and costs. The City appealed.[1] On appeal, after affirming the trial court’s determination that the City improperly terminated Conway, the Court of Appeals considered two other issues raised by the City. First, whether the City was entitled to a set-off for replacing defective work discovered after Conway was terminated. Second, whether Conway is entitled to attorney fees if it did not make the statutorily required offer of settlement per RCW 39.04.240. Read the court decision
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Reprinted courtesy of Jeff Kaatz, Ahlers Cressman & Sleight
Mr. Kaatz may be contacted at Jeff.Kaatz@acslawyers.com

Construction Injuries Under the Privette Doctrine. An Electrifying, but Perhaps Not Particularly Shocking, Story . . .

January 05, 2017 — Garret Murai – California Construction Law Blog
We’ve talked about the Privette doctrine before (see here, here, and here). The Privette doctrine, named after the court case Privette v. Superior Court (1993) 5 Cal.4th 689, provides in general that project owners and contractors are not responsible for worksite injuries suffered by employees of lower-tiered contractors they have hired, the rationale being that such workers should already be covered under their employers’ workers’ compensation insurance policies. In the twenty years since Privette was decided, however, several exceptions have evolved that have narrowed the doctrine. One exception, known as the retained control exception, allows a contractor’s employees to sue the “hirer” of the contractor (that is, the higher-tiered party who “hired” the lower-tiered party whose employee is injured) when the hirer retains control over any part of the work and negligently exercises that control in a manner that affirmatively contributes to the employee’s injury. Hooker v. Department of Transportation (2002) 27 Cal.4th 198. Another exception, known as the nondelegable duty exception, permits an injured worker to recover against a hirer when the hirer has assumed a nondelegable duty, including statutory and regulatory duties, that it breaches in a manner that affirmatively contributes to the injury. Padilla v. Pomona College (2008) 166 Cal.App.4th 661. In a recently decided case, Khosh v. Staples Construction Company, Inc., Case No. B268937 (November 17, 2016), the California Court of Appeals for the Second District examined the application of the Hooker and Padilla exceptions where a general contractor was contractually responsible for overall site safety. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Crane Firm Pulled Off NYC Projects Following Multiple Incidents

October 07, 2019 — Jeff Rubenstone - Engineering News-Record
Following a partial crane collapse at a site on Manhattan’s Lower East Side and a fatality in April on a jobsite in lower Manhattan, the New York City Dept. of Buildings announced on Aug. 12 that it is suspending United Crane & Rigging’s work on 21 construction sites across the city. Jeff Rubenstone, Engineering News-Record Mr. Rubenstone may be contacted at rubenstonej@enr.com Read the court decision
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Dave McLain named Barrister’s Best Construction Defects Lawyer for Defendants for 2019

January 20, 2020 — David M. McLain – Colorado Construction Litigation
The attorneys and staff at Higgins, Hopkins, McLain & Roswell are proud to announce that Law Week Colorado named Founding Member Dave McLain as the 2019 People’s Choice for Best Construction Defects Lawyer for Defendants. According to the publication:

Law Week Colorado asked its readership to weigh in on the best attorneys in just about every practice area we could think of. We received hundreds of responses and sifted through the votes for each category to determine the “People’s Choice” winner – the top attorney in each practice area according to other attorneys. And then we handed it to the “Barrister” (the hive mind of Law Week staff, supplemented by public votes and a healthy dose of additional research) to determine the Barrister’s Choice.

In recognizing Mr. McLain this year, Law Week Colorado stated:

Previously appearing in Law Week’s 2015 Barrister’s Best issue [in which he was recognized as the Barrister’s Choice as Best Construction Defects Lawyer for Defendants], David McLain participates in numerous speaking engagements on construction defects claims and is seen as a leader in the field. His extensive experience over the last two decades of practice speaks for itself.

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

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