Fairfield Connecticut Building Expert Directory

Do Not Pass Go! Duty to Defend in a Professional Services Agreement (law note)

April 03, 2019 — Melissa Dewey Brumback - Construction Law in North Carolina
Recently a client asked me to review a contract for his Firm. The Owner, who had prepared the draft, had inserted a rather stringent “duty to defend” clause. As I told my client, a duty to defend clause is not a good idea for a couple of reasons. First, if you agree to provide a defense, what that means is that you are footing the bill for the Owner if the Owner is sued by another party. Think about that for a minute. You are paying legal fees for someone else’s legal defense. You may or may not be able to direct the litigation or have a say in who is hired. Can you say open check book? Secondly, and more importantly, the duty to defend is almost never insurable. What that means is that your professional liability carrier will not be footing the bill—your Firm will be doing it. This is not a case of adding the Owner as an additional insured, so do not confuse the two. Agreeing to a duty to defend is an extremely burdensome, and potentially costly, mistake. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett PLLC
Ms. Brumback may be contacted at mbrumback@rl-law.com

Be Careful With Construction Fraud Allegations

April 06, 2016 — Christopher G. Hill – Construction Law Musings
Here at Construction Law Musings we have discussed the intersection of contracts, construction and fraud on several occasions. We’ve even discussed how such fraud can bleed over from the civil to the criminal. Recently, the Virginia Supreme Court weighed in again on the question of construction fraud and criminal allegations. In O’Connor v. Tice, the Court discussed a malicious prosecution action brought by a contractor against owners of a commercial building. In O’Connor, the owners and the contractor got into a disagreement over alleged damage to the roof of the owners’ building and who was responsible. In response to this disagreement, the owners contacted the local sheriff’s office, accusing the contractor of construction fraud, and then wrote a “15 day letter” to the contractor outlining the criminal consequences should he fail to pay the damages sought in the owners civil lawsuit. Subsequently, a criminal warrant was issued against the contractor based solely upon the word of the owners. This last occurred at the insistence of the owners (who did not inform the sheriff’s deputy or the Commonwealth Attorney that they’d had this conversation or that the contractor had partially performed) after they discussed the matter with the contractor’s attorney and were informed that any claim that they may have had was civil in nature. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Construction Law Musings
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Housing Starts Surge 23% in Comeback for Canadian Builders

July 15, 2019 — Theophilos Argitis - Bloomberg
Canadian housing starts unexpectedly surged in April, in another sign of recovery for the nation’s battered real estate market. Builders started work on an annualized 235,460 units last month, the highest level in 10 months and up 23 percent from 191,981 units in March, the Canada Mortgage and Housing Corp. reported Wednesday. The gain was driven by new multi-unit construction in Toronto and Vancouver. Read the court decision
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Reprinted courtesy of Theophilos Argitis, Bloomberg

KF-103 v. American Family Mutual Insurance: An Exception to the Four Corners Rule

October 29, 2014 — Zach McLeroy – Colorado Construction Litigation
In Colorado, the “complaint rule,” also known as the “four corners rule,” requires an insurer to provide a defense when an underlying complaint alleges any set of facts that may fall within an insurance policy. This can result in a situation where an insurer has a duty to defend although the underlying facts ultimately do not fall within the policy. In KF-103 v. American Family Mutual Insurance, 2014 WL 4409876, District Court Judge Richard P. Matsch recognized an exception to the complaint rule. In doing so, Judge Matsch determined that a court may look beyond the complaint to judicial orders preceding the filing of the complaint to determine whether an insurer has a duty to defend. Therefore, a party may not be able to assert unsupported facts in a complaint for the sole purpose of triggering an insurance policy. KF 103 v. American Family arose out of an underlying easement dispute. In the underlying case, KF 103-CV, LLC (“KF 103”) purchased a piece of property from the Infinity Group. As a condition of the purchase agreement, Infinity Group was required to complete improvements to boundary streets and the intersection of Ski Lane and Sorpresa Lane. Several adjoining property owners (the “neighbors”) objected to the modification of the intersection because it violated an express easement (the “easement”) that provided access to their properties. Read the court decision
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Reprinted courtesy of Zach McLeroy, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLeroy may be contacted at McLeroy@hhmrlaw.com

Kentucky Supreme Court Creates New “Goldilocks Zone” to Limit Opinions of Biomechanical Experts

July 24, 2023 — Aimee E. Muller - Lewis Brisbois
Lexington, Ky. (June 26, 2023) – In a recent decision, the Kentucky Supreme Court placed stricter limitations on the opinions that biomechanical engineers may offer at trials in Kentucky courts. Specifically, the published opinion issued in Renot v. Securea, Supreme Ins. Co., 2023 Ky. LEXIS 163, recognizes a new space for the testimony of biomechanics experts – “The Goldilocks Zone.” Where is the Goldilocks Zone? The Goldilocks Zone is a perfect place in which the proffered testimony is neither too specific such that it wanders into the realm of medical causation, nor too general such that it fails to help a lay jury. Specifically, a biomechanical engineer’s expert testimony must be limited to the forces generated by the subject collision, the generally anticipated responses of a hypothetical person’s body to those forces, and the range of typical injuries resulting from such forces. Moreover, following Renot, a biomechanical engineer’s proffered opinions no longer may enter into the realm of diagnosing a specific medical condition associated with a traumatic injury. Instead, the question of whether a trauma actually caused or exacerbated a plaintiff’s injuries falls solely within the purview of a medical doctor. Read the court decision
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Reprinted courtesy of Aimee E. Muller, Lewis Brisbois
Ms. Muller may be contacted at Aimee.Muller@lewisbrisbois.com

South Carolina School District Investigated by IRS and FBI

March 12, 2014 — Beverley BevenFlorez-CDJ STAFF
The IRS and FBI are investigating operations of the Jasper County School District in South Carolina. According to The Post and Courier, “Assistant U.S. Attorney James May sent a letter to district officials asking them to keep financial documents, the minutes of school board meetings, employment files for top officials and all letters and emails between district employees.” Some of the problems the school district has dealt with are “legal challenges.” One of the disputes, involved a “multi-million dollar” construction defect claim for “facilities built in 2007.” The Post and Courier reported that this made up twenty percent of the more than half a million dollars paid in legal fees by the district. South Carolina “lawmakers are considering the Parent Empowerment Act, a bill that would allow the state's Education Department to take over districts that are mismanaged or need improvement if a majority of parents call for it,” according to The Post and Courier. Read the court decision
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Failure to Allege Property Damage Within Policy Period Defeats Insured's Claim

October 03, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The insured's inability to determine when water damage occurred meant it could not pursue claims of property damage against the insurers. Creek v. State Farm Fire & Cas. Co., 2022 U.S. Dist. LEXIS 116939 (W.D. Wash. July 1, 2022). Gold Creek Condominium complex experienced water damage. The complex was completed in 1982. The owners sued State Farm and Travelers under all-risk policies when tenders for the damage were denied. In 2017, Creek hired an expert to investigate deterioration due to water intrusion. The expert noted that "water intrusion had been evident in the exterior walls, soffits, terraces, handrails and elevated entry walkways for some time." Thereafter, Creek tendered claims for property damage to State Farm and to Travelers. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Construction and Contract Issues Blamed for Problems at Anchorage Port

August 27, 2013 — CDJ STAFF
A third-party audit of the construction at the Port of Anchorage has found fault with the design provided by the engineers. In response, PND, the engineering firm involved, has claimed that it was not their design, but faulty construction of it that lead to an interruption in the construction project. Separately, the Office of the Inspector General has called into question how MARAD, the agency which oversaw the port construction, handled the planning and contracts for the project. Control of the project has been taken over by the Municipality of Anchorage, and they have called into question PND’s open cell sheet pile design and PND’s design of the dock infrastructure. Simpson, Gumpertz and Heger reviewed the design, comparing it to a design provided by CH2M Hill, and found that the PND design was inadequate. A contract was subsequently awarded to CH2M Hill. Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES