FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Court of Federal Claims: Upstream Hurricane Harvey Case Will Proceed to Trial

July 02, 2018 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog
On May 24, the U.S. Court of Federal Claims decided one of what may be many cases involving the terrible flooding wrought by Hurricane Harvey in the Houston, TX region. The Court of Federal Claims has divided thousands of pending claims into “upstream” and “downstream” categories, depending on whether the flooded properties were located upstream or downstream of two U.S. Army Corps of Engineers (Corps) flood control reservoirs that were constructed in the 1940s and 1950s. The case is In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs; however, the Court of Federal Claims’ order in this case applies to “all upstream cases.” 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

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The End of Eroding Limits Policies in Nevada is Just the Beginning

August 28, 2023 — Payne & Fears LLP
On June 3, 2023, Nevada Gov. Joe Lombardo signed into law AB 398 (the Act) which modifies the Nevada insurance code by restricting the types of liability policies that can be offered in the state. The End of Eroding Limits Policies in Nevada First, the Act prohibits liability insurers from issuing “eroding limits” or “burning limits” policies. These are insurance policies under which defense costs decrease policy limits. Most professional liability policies are eroding limits policies. As of Oct. 1, 2023, insurers in Nevada may no longer issue or renew any policy where policy limits are eroded by defense costs. This change may result in higher premiums on these types of policies to compensate for the higher payouts they will now have to provide in Nevada. Read the court decision
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Reprinted courtesy of Payne & Fears LLP

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Texas covered versus uncovered allocation and “legally obligated to pay.”

April 27, 2011 — CDCoverage.com

In Markel American Ins. Co. v. Lennar Corp., No. 14-10-00008-CV (Tex. Ct. App. April 19, 2011), insured homebuilder Lennar filed suit against its insurer Markel seeking recovery of costs incurred by Lennar to repair water damage to homes resulting from defective EIFS siding. Following a jury trial, judgment was entered in favor of Lennar and against Markel. On appeal, the intermediate appellate court reversed. Applying Texas law, the court first held that Lennar failed to satisfy its burden of allocating damages between covered and uncovered. In a prior decision, the court had held that, while the costs incurred by Lennar for the repair of the resulting water damage



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Reprinted courtesy of CDCoverage.com

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Insurers Get “Floored” by Court of Appeals Regarding the Presumptive Measure of Damages in Consent Judgments

May 13, 2014 — Mark Scheer and Brent Williams-Ruth – Scheer & Zehnder LLP
CASE: Miller v. Kenny, 68594-5-I, 2014 WL 1672946 (Wash. Ct. App. Apr. 28, 2014). Snapshot Synopsis: $21 million bad faith consent judgment verdict upheld. $4.15 million underlying stipulated consent judgment was the “floor,” and additional damages allowed. ISSUES: 1. Can a jury award damages for an insurer’s bad faith in excess of the amount of the stipulated covenant judgment? YES 2. Can a trial court admit evidence of insurance liability reserves in a bad faith action? YES 3. *Note: Other evidentiary and procedural issues were addressed by the court in its decision but not analyzed in this summary* FACTS: This appeal arose out of an automobile accident on August 23, 2000. Patrick Kenny was driving a 1994 Volkswagen Passat owned by one of the passengers, when he rear-ended a cement truck. The accident severely injured his three passengers: Ryan Miller, Ashley Bethards, and Cassandra Peterson. Kenny was covered for liability under the insurance policy issued to Peterson's parents by Safeco Insurance Company. Safeco defended Kenny without a reservation of rights. Reprinted courtesy of Mark Scheer, Scheer & Zehnder LLP and Brent Williams-Ruth, Scheer & Zehnder LLP Mr. Scheer may be contacted at mscheer@scheerlaw.com; Mr. Williams-Ruth may be contacted at bwilliamsruth@scheerlaw.com Read the court decision
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Colorado Court of Appeals Defines “Substantial Completion” for Subcontractors’ Work so as to Shorten the Period of Time in Which They Can Be Sued

October 20, 2016 — David M. McLain – Colorado Construction Litigation Blog
Over the past few years, there has been a battle raging on in district courts and arbitration hearing rooms throughout Colorado regarding when a subcontractor’s work is to be deemed “substantially complete,” for purposes of triggering Colorado’s six-year statute of repose. C.R.S. § 13-80-104 states, in pertinent part:

Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section. * * * (2) In case any such cause of action arises during the fifth or sixth year after substantial completion of the improvement to real property, said action shall be brought within two years after the date upon which said cause of action arises.

C.R.S. § 13-80-104 (emphasis added). As the battle raged on at the trial court level, subcontractors and design professionals argued that their work should be deemed “substantially complete” when they finished their discrete scope of work within a project. Developers and general contractors, seeking to maintain third-party claims against the subcontractors and design professionals, typically argued either that the subcontractors’ and design professionals’ work should be deemed “substantially complete” upon the issuance of the final certificate of occupancy on the project, or upon the issuance of the final certificate of occupancy for the last building within a project on which the subcontractor or design professional worked. Trial court judges and arbitrators have been split on this issue, with perhaps a slight majority favoring one or the other approaches advocated by developers and general contractors, that the subcontractors’ and design professionals’ work is “substantially complete” upon the issuance of the last certificate of occupancy in a project (the minority view) or upon the issuance of the last certificate of occupancy for the last building within a project on which the subcontractor of design professional worked (the majority view). Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

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Insurance Measures Passed by 2015 Hawaii Legislature

June 10, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The 2015 Hawaii legislative session passed three insurance-related bills which have all been signed by the governor. Bills that have been enacted are the following: SB0589 - We previously devoted this post to the legislation. The bill provides relief for residents in lava zones on the Big Island. The bill limits the number of property policies that an insurer can refuse to renew in a lava zone. Further, a moratorium on the issuance of policies can be lifted in a state of emergency due to the threat of imminent disaster from a lava flow. SB0736 - Provisions relating to reimbursement for accident and health or sickness insurance benefits are amended. Further, the bill provides that prior to initiating any recoupment or offset demand efforts, an entity must send a written notice to the health care provider at least 30 days prior to engaging in recoupment or offset efforts. An entity may not initiate recoupment or offset efforts more than 18 months after the initial claim payment was received by the health care provider or health care entity. 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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Homebuyers Get Break as Loan Rates Defy Fed Tapering: Mortgages

February 14, 2014 — Kathleen M. Howley – Bloomberg
Ashley Underwood is taking advantage of the unexpected drop in mortgage rates by rushing to buy her first home before they go up again. “I’m ready to cancel plans at a moment’s notice to go look at a house,” said Underwood, 27, who lives in Indianapolis, Indiana. “I didn’t expect to see rates falling again, and I want to lock in something before I lose out.” The drop in the last month proved forecasters wrong, said Douglas Duncan, chief economist of Fannie Mae in Washington. After the Federal Reserve announced in December that it would begin tapering purchases of mortgage-backed securities, all the major housing forecasters said rates would jump this quarter. Economists didn’t foresee that investors would react to the Fed’s retreat by moving money from emerging markets into U.S. Treasuries, driving down home-loan rates. Read the court decision
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Reprinted courtesy of Kathleen M. Howley, Bloomberg
Ms. Howley may be contacted at kmhowley@bloomberg.net

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Floating Crane on Job in NYC's East River Has a Storied Past of Cold War Intrigue

March 22, 2017 — Nadine M. Post – Engineering News-Record
The complex maneuver of lifting heavy prefabricated modules out of New York City's East River to build a university laboratory took careful planning and the work of one particular floating crane with a complicated past. Read the court decision
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Reprinted courtesy of Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com

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