Fairfield Connecticut Building Expert Directory

Is a Text a Writing?

June 10, 2024 — Michael Yelle - Ahlers Cressman & Sleight PLLC
Is a text message a writing? Project communication is constantly evolving, and text messages are an increasingly common way teams share pictures, video, and provide project updates. When texting is part of the communication flow on a project, contractors and owners might text approvals for extra work, notices of changed conditions, or other information that could be a basis for a change order. In a text exchange about a compensable event, the notice, reply, and approval are all saved on the phone. But contracts often contain specific requirements for a contractor or subcontractor to request changes and authorization to proceed may be specifically required in writing. For example, the Associated General Contractors of Washington – 2018 Standard Subcontract says the “Subcontractor shall make no claims for extras unless the same shall be agreed upon in writing by Contractor prior to performance of any such extra work.” (emphasis added). The AGC subcontract doesn’t define “writing,” so the subcontractor and contractor might wonder if a text message exchange about a potentially compensable event was an “agreement in writing.” Read the court decision
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Reprinted courtesy of Michael Yelle, Ahlers Cressman & Sleight PLLC
Mr. Yelle may be contacted at michael.yelle@acslawyers.com

Construction Defect Reform Dies in Nevada Senate

May 10, 2013 — CDJ STAFF
Nevada’s SB161 has failed to move out of the Senate Judiciary Committee. The bill would have reduced the time in which homeowners could file suits and also would have forbidden the inclusion of attorney’s fees as damages. A similar bill remains active in the Nevada House. Read the court decision
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An Expert’s Qualifications are Important

January 28, 2019 — David Adelstein - Florida Construction Legal Updates
An expert’s qualifications are important. Please remember this the next time you retain an expert to analyze documents or data and render an opinion based on that information. An expert must be qualified to render an opinion. Otherwise the expert will not be allowed to render the opinion you may be looking for or need for purposes of trial, as discussed below. A recent personal injury case, White v. Ring Power Corp., 43 Fla.L.Weekly D2729a (Fla. 3d 2018), involved a crane operator that became severely injured when operating a leased crane. The case proceeded to trial against only the equipment lessor of the crane based on the plaintiff’s contention that there were deficiencies with the crane. The plaintiff intended on using expert witnesses to interpret the crane’s load movement indicator (referred to as LMI) and render opinions that the LMI data showed prior overloads of the crane which resulted in the injury to the operator of the crane. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Missouri Legislature Passes Bill to Drastically Change Missouri’s “Consent Judgment” Statute

August 10, 2021 — Jason Taylor - Traub Lieberman Insurance Law Blog
On June 29, 2021, Missouri Governor Mike Parson signed SB-HB 345 into law, which will drastically change Section 537.065 of the Missouri Revised Statutes. Section 537.065 provides an insured who has been denied insurance coverage a statutory mechanism to settle certain tort claims through an agreement akin to a consent judgment. Typically referred to as a “065 Agreement,” the statute allows a plaintiff and insured-tortfeasor to settle a claim for damages and specify which assets are available to satisfy the claim, typically the tortfeasor’s available insurance policy. In the past, such agreements were often accomplished without the insurer’s participation or even its knowledge. Under such agreements, the insured-tortfeasor assigns all rights to the insurance policy to the plaintiff and agrees not to contest the issues of liability or damages. In exchange the plaintiff agrees not to execute any judgment against the insured. The parties conduct what amounts to an uncontested and often “sham” trial resulting in a judgment far in excess of any actual damages or applicable policy limits had the case been contested. In a subsequent proceeding to collect on the judgment, the tortfeasor’s insurer is bound by the determinations of liability and damages made in the underlying action. This statutory framework presented plenty of opportunities for abuse. In 2017, the statute was amended in order to address some of those issues, including a requirement that the insured provide notice of a settlement demand under Section 065 and providing insurers a limited right to intervene in the tort action before liability and damages have been determined. Ostensibly, the intent of the 2017 amendments was to reduce the number of large and uncontested judgments and allow the insurance carrier an opportunity to continue litigating the injured party’s claim where the insured has no incentive or is contractually prohibited from doing so. Yet, creative plaintiff’s attorneys found several “loopholes” around these changes, most prominently, by moving their disputes from state court to binding arbitration and dispensing with notice to the insurer altogether, or at least until after the arbitration has concluded. Read the court decision
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Reprinted courtesy of Jason Taylor, Traub Lieberman
Mr. Taylor may be contacted at jtaylor@tlsslaw.com

Conflicting Exclusions Result in Duty to Defend

October 21, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Seventh Circuit affirmed the district court's finding that the insurer had a duty to defend in light of conflicting endorsements in the policy. Panfil v. Nautilus Ins. Co., 2015 U.S. App. LEXIS 14621 (7th Cir. Aug. 20, 2015). JRJ Ada, LLC was a contractor. JRJ's two members, Joe Panfil and Renee Michelon, had a CGL policy with Nautilus. The employee of JRJ's subcontractor, Astro Insulation, fell through a hole while performing insulation work, injuring himself. The employee sued JRJ, who sought a defense from Nautilus. Nautilus refused to defend because JRJ was not an insured under the policy. Further, Nautilus relied upon the policy's Contractor-Subcontrated Work Endorsement and Employee Exclusion to deny coverage. Panfil and Michelon sued Nautilus. Cross-motions for summary judgment were filed and the court granted plaitniffs' motion while denying Nautilus' motion. The district court first found that the policy should be reformed to inlcude JRJ as an insured. Nautilus did not appeal this determination. The court also found that Nautilus breached its duty to defend and was therefore estopped from asserting policy defenses to coverage. 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

EEOC Builds on Best Practice Guidance Regarding Harassment Within the Construction Industry

August 12, 2024 — Abby M. Warren & Christohper A. Costain - Construction Law Zone
In June 2024, the Equal Employment Opportunity Commission (EEOC) issued guidance tailored to the construction industry concerning harassment in the workplace or at the jobsite. The guidance is important for construction industry leaders and employers to understand how to prevent and remedy harassment in the workplace — more than a third of all EEOC discrimination charges filed between 2019 and 2023 asserted harassment. The guidance represents the EEOC’s latest effort in executing its Strategic Enforcement Plan for Fiscal Years 2024 to 2028, which, in part, focuses on combatting systemic harassment and eliminating barriers in recruitment and hiring, particularly for underrepresented groups in certain industries, including women in construction, through the EEOC’s enforcement efforts. In this article, we highlight key principles and practices from this guidance Leadership and Accountability The guidance reiterates that consistent and demonstrated leadership is critical to creating and maintaining a workplace culture where harassment is unacceptable and strictly prohibited. Worksite leaders, including project owners, crew supervisors, and union stewards, are each expected to regularly communicate that harassment is intolerable through several suggested efforts. Reprinted courtesy of Abby M. Warren, Robinson+Cole and Christohper A. Costain, Robinson+Cole Ms. Warren may be contacted at awarren@rc.com Mr. Costain may be contacted at ccostain@rc.com Read the court decision
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Giving Insurance Carrier Prompt Notice of Claim to Avoid “Untimely Notice” Defense

June 12, 2023 — David Adelstein - Florida Construction Legal Updates
When it comes to giving your insurance carrier notice of claim, I am an advocate of providing that notice as soon as possible, i.e., prompt notice. The reason is to take away the carrier’s argument to deny coverage because you, as the insured, failed to provide it with prompt notice—the “untimely notice” defense. It doesn’t matter whether it is a first party property insurance claim or third-party liability policy claim, provide notice as soon as reasonably possible to take away that “untimely notice” defense. The “untimely notice” defense was the issue in Benson v. Privilege Underwriters Reciprocal Exchange, 48 Fla.L.Weekly D1085a (Fla. 6th DCA 2023) dealing with a first party property insurance policy. In this case, eighteen months after Hurricane Irma, the plaintiff noticed a smell and observed brown stains on walls and ceiling in his home. The plaintiff called roofing companies to inspect the damage and perform certain repairs. However, the plaintiff still noticed the smell so he called a company to test and remediate mold. The plaintiff, then, contacted his property insurer with numerous claims relative to the leaks and damage. Although there was an initial property insurance payment made, the carrier ultimately denied coverage for subsequent claims stating that “the late notice of the claim and the prior repairs to the roof substantially prejudiced its ability to complete an inspection of [plaintiff’s] property to evaluate the claim.” Benson, supra. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Lost Rental Income not a Construction Defect

November 27, 2013 — CDJ STAFF
A judge in Colorado has ruled that although the homeowner’s policy excluded construction defects from coverage, lost rental income and the cost of deck repair involved in fixing a defective drainage system were. Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES