Fairfield Connecticut Building Expert Directory

Tennessee High Court Excludes Labor Costs from Insurer’s Actual Cash Value Depreciation Calculations

May 27, 2019 — Michael S. Levine & Geoffrey B. Fehling - Hunton Andrews Kurth
The Tennessee Supreme Court has refused to construe an ambiguous definition of actual cash value to allow for deduction of labor costs as part of depreciation calculations where that subset of repair costs are not clearly addressed in the policy. Despite the split of authority nationwide, the Tennessee case presents a straightforward application of policy interpretation principles to a common valuation issue in first-party property claims. In Lammert v. Auto-Owners (Mutual) Insurance Co., No. M2017-2546-SC-R23-CV (Tenn. Apr. 15, 2019), insureds brought a class-action lawsuit against their property insurer, Auto-Owners, alleging breach of contract. The plaintiffs each owned buildings damaged by a hail storm and had each submitted claims to Auto-Owners. Auto-Owners accepted the claims and determined that the losses would be determined on an actual cash value basis. In performing those valuations, Auto-Owners depreciated both the building materials and the labor costs associated with repairing the properties. The insureds challenged the labor cost depreciation. Auto-Owners moved to dismiss the lawsuit. In response, the insureds requested that the district court certify to the Tennessee Supreme Court whether, “[u]nder Tennessee law, may an insurer in making an actual cash value payment withhold a portion of repair labor as depreciation when the policy (1) defines actual cash value as ‘the cost to replace damaged property with new property of similar quality and features reduced by the amount of depreciation applicable to the damaged property immediately prior to the loss,’ or (2) states that ‘actual cash value includes a deduction for depreciation?”’ Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Geoffrey B. Fehling, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Read the court decision
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Tenth Circuit Finds Appraisal Can Decide Causation of Loss Under Colorado Law

November 29, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The Tenth Circuit determined that the Colorado Supreme Court would agree with other state courts that appraisers can decide the causation of a loss. Bonbeck Parker, LLC v. The Travelers Indem. Co. of Am., 2021 U.S. App. LEXIS 29607 (10th Cir. Oct. 1, 2021). A hailstorm damaged three buildings owned by BonBeck. A claim was submitted to Travelers under BonBeck's commercial property policy. Travelers acknowledged that some hail damage occurred to all the buildings except for the roofs. Travelers paid $34,200 for damage to the buildings. Coverage for the roof damage was denied because it resulted not from the hail damage but from uncovered events like wear and tear, deterioration, and improperly installation. BonBeck requested an appraisal. Travelers insisted that the appraisal would only determine the amount of loss of covered claims. BonBeck rejected these conditions and Travelers filed suit. 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

When is a “Willful” Violation Willful (or Not) Under California’s Contractor Enforcement Statutes?

April 17, 2019 — Garret Murai - California Construction Law Blog
The enforcement statutes applicable to the California Contractors’ State License Board aren’t exactly models in clarity. A few examples: 1. Business and Professions Code Section 7107: Abandonment without legal excuse of any construction project or operation engaged in or undertaken by the license as a contractor constitutes a cause for disciplinary action. 2. Business and Professions Code Section 7109: A willful departure in any material respect from accepted trade standards for good and workmanlike construction constitutes a cause for disciplinary action, unless the departure was in accordance with plans and specifications prepared by or under the direct supervision of an architect. 3. Business and Professions Code Section 7110: Willful or deliberate disregard and violation of the building laws of the state, or any political subdivision thereof, . . . or of the safety or labor laws or compensation insurance laws or Unemployment Insurance Code of the State, or of the Subletting and Subcontracting Fair Practice Act, or violation by any licensee of any provision of the Health and Safety Code or Water Code, relating to the digging, boring, or drilling of water wells, constitutes a cause for disciplinary action. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen
Mr. Murai may be contacted at gmurai@wendel.com

Lessons from the Sept. 19 Mexico Earthquake

October 19, 2017 — Nadine M. Post - Engineering News-Record
On the 32nd anniversary of the magnitude-8.1 earthquake that devastated Mexico City on Sept. 19, 1985, 41 U.S. seismic experts were in a workshop near Los Angeles, polishing a new tool to identify “killer” buildings: non-ductile concrete structures that often perform poorly in quakes. Suddenly, the attendees started getting pager alerts from the U.S. Geological Survey: A magnitude-7.1 quake had struck about 120 kilometers from Mexico City. Read the court decision
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Reprinted courtesy of Nadine M. Post, ENR
Ms. Post may be contacted at postn@enr.com

Hunton Insurance Partner Syed Ahmad Named to Benchmark Litigation’s 2019 40 & Under Hot List

October 14, 2019 — Michael S. Levine & David M. Costello - Hunton Insurance Recovery Blog
Benchmark Litigation has named Syed Ahmad, a partner in Hunton Andrews Kurth’s Insurance Coverage practice, to the publication’s 40 & Under Hot List. Benchmark Litigation is the definitive guide to America’s leading litigation firms and attorneys. The 40 & Under Hot List honors the most notable up-and-coming litigation attorneys in the United States. Those named to the list have proven their eligibility as individuals at the partner level of their respective firms who are 40 years of age or younger. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and David Costello, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Read the court decision
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Proving Impacts to Critical Path to Defeat Liquidated Damages Assessment

December 16, 2019 — David Adelstein - Florida Construction Legal Updates
When a contractor is staring down the barrel of an owner’s assessment of liquidated damages, the burden will fall on the contractor to establish that the delay was attributable to the owner and the owner’s agents. The contractor will want to do this not only to defeat the assessment of liquidated damages, but because it will want to establish that the delay caused it to incur extended field overhead (general conditions) for which the owner is responsible. A contractor supports its burden by proving the impacts to its critical path. “In general, proving an allegation of government-caused delays without a means of showing the critical path is a steep prospect.” James Talcott Construction v. U.S., 2019 WL 1040383, *8 (Fed. Cl. 2019) (unreported opinion) (finding that because contractor did NOT present a critical path analysis it could not support its claim for delay caused by the government). Avoiding the assessment of liquidated damages means the contractor needs to support that it encountered excusable delay and it is/was entitled to an extension of time to complete the project. 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

Superintendent’s On-Site Supervision Compensable as Labor Under Miller Act

March 13, 2023 — David Adelstein - Florida Construction Legal Updates
A recent Miller Act payment bond decision out of the District of Columbia Circuit Court of Appeals, U.S. f/u/b/o Civil Construction, LLC v. Hirani Engineering & Land Surveying, PC, 58 F.4th 1250 (D.C. Circ. 2023), dealt with the issue of whether a subcontractor’s superintendent constitutes recoverable “labor” within the meaning of the Miller Act and compensable as a cost under the Miller Act that typically views labor as on-site physical labor. The issue is that the Miller Act covers “[e]very person that has furnished labor or material in carrying out work provided for in a contract.” Civil Construction, supra, at 1253 quoting 40 U.S.C. s. 3133(b)(1). The Miller Act does not define labor. The subcontractor claimed labor includes actual superintending at the job site. The surety disagreed that a superintendent’s presence on a job site constitutes labor as the superintendent has to actually perform physical labor on the job site to constitute compensable labor under the Miller Act. The subcontractor argued its subcontract and the government’s quality control standards required detailed daily reports that verified manpower, equipment, and work performed at the job site. It further claimed its superintendent had to continuously supervise and inspect construction activities on-site: “[the] superintendent had to be on-site to account for, among other things, hours worked by crew members, usage and standby hours for each piece of equipment, materials delivered, weather throughout the day, and all work performed. These on-site responsibilities reflected the government’s quality control standards, under which the superintendent as ‘the most senior site manager at the project, is responsible for the overall construction activities at the site…includ[ing] all quality, workmanship, and production of crews and equipment.” Civil Construction, supra, at 1253-54. 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

You Have Choices (Litigation Versus Mediation)

December 14, 2020 — Christopher G. Hill - Construction Law Musings
As I sit here thinking about an impending trial in the Goochland County General District Court, it hit me that I also serve as a mediator in that court from time to time. Coincidentally, I will be “wearing both hats” (litigator and mediator) this week on back to back days. It will be interesting to have to switch roles so quickly on back to back days. While I don’t have the results of this thought experiment as I sit here typing this post, the timeline does bring into focus the two possible avenues to resolve a dispute. Neither is perfect and either works in the proper situation. Both lend a final “result” and closure to the dispute, they just each do so in a different manner and with a different role for me, the construction attorney/construction mediator. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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