FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

New Jersey’s Proposed Construction Defect Law May Not Cover Everything

December 11, 2013 — CDJ STAFF
New Jersey is considering a new law that would make explicit that construction defects are accidents under a commercial general liability policy. But the site GreenBuildingConstructionLaw points out that it wouldn’t necessarily be the last word on things. The bill “does not obligate insurers to provide coverage for construction defects.” Exclusions could still come from “the various ‘business risk’ exclusions commonly found in commercial general liability policies, such as the ‘your work’ or ‘insured product’ exclusions.” The writer concludes that “contractors seeking coverage under the policies (and their insurers seeking to disclaim coverage), however, will still need to litigate the issue of whether the alleged property damage is covered by the insuring clause, and if it is, whether the various exclusions apply.” Read the court decision
Read the full story...
Reprinted courtesy of

---

Application of Efficient Proximate Cause Doctrine Supports Coverage

January 06, 2012 — Tred R. Eyerly - Insurance Law Hawaii

Relying on the efficient proximate cause doctrine, the court determined coverage potentially existed for damage caused by water. Union Sav. Bank v. Allstate Indem. Co., 2011 U.S. Dist. LEXIS 134398 (S.D. Ind. Nov. 21, 2011).

The Tods purchased property that was mortgaged by Union Savings. The Tods obtained a Landlords Policy for the property from Allstate. When the Tods were in default on their loan, Union Savings notified them that foreclosure proceedings would commence. Union Savings sent an appraiser to the property who discovered water in the basement. Water and electricity to the building were off. Union Savings notified Allstate and later filed a formal claim under the mortgagee clause in the Landlords Policy. This clause stated, "A covered loss will be payable to the mortgagees named on the policy declaration. . . ."

Allstate denied coverage, citing exclusions for water damage.

Read the full story…

Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

Read the court decision
Read the full story...
Reprinted courtesy of

---

Massive Fire Destroys Building, Firefighters Rescue Construction Worker

March 26, 2014 — Beverley BevenFlorez-CDJ STAFF
A “5-alarm fire burned down a residential building under construction in the Montrose area” of Houston, Texas, reported Click 2 Houston. Almost 200 emergency personnel were on the scene. Captain Ruy Lozano told Click 2 Houston that “firefighters worked to contain the blaze, before the imminent collapse because the fire suppression systems were not yet in place for the under-construction building.” ABC News reported that fire fighters rescued Curtis Reissig, a construction worker from the fire. “It’s burning my eyes, my throat. I can’t breathe and I can’t hardly see anything,” Reissig told ABC News. “I could see a window. I went to that window. Trying to open that window in a panic. I couldn’t get the thing open. Smoke was getting heavier, just trying to get some air.” ABC News reported that Reissig jumped down from a fifth story balcony to a ledge below, where “firefighters pulled him to safety.” Read the full story at Click 2 Houston... Read the full story at ABC News... Read the court decision
Read the full story...
Reprinted courtesy of

---

How is Negotiating a Construction Contract Like Buying a Car?

March 01, 2017 — Christopher G. Hill – Construction Law Musings
I know, you’re probably looking for a punchline, and likely thinking something along the lines of “only a construction attorney would be sitting in his office and come up with such an analogy,” but I really do think it’s a good one. When you are buying a car, you look for priorities. Is the color what you want? Is the motor a hybrid or a v-6? Does it have Android Auto? What is the fuel mileage? All of these things may be more or less important to you. If you can get your priorities for a price that is attractive, you will likely let some other less important items, e. g. trunk space or rear seat leg room, slide and purchase the car anyway. Furthermore, you may use these minor items as negotiating points to either get one of the priorities or a lower price. Of course the dealership will want to get its priorities, likely a sale and a profit, when negotiating and will have certain items that it won’t move on just as you have terms that you won’t move on. Much like when you walk onto the car lot, and particularly as a subcontractor looking at a contract from a general contractor, or a GC looking at the contract from the owner of a project, a construction contract presented to you is the starting point. When looking at the contract, be sure to have some non-negotiable items in mind when taking a critical eye to the terms of that contract. Some of these terms may be more or less negotiable depending on your experience with the other party to the construction contract. For instance, striking a pay if paid clause may be less important with a paying party with whom you have a 10 year history without payment problems. On the other hand, if it is your first contract with the other party, a stricter list may be required. So, much like a dealer that you know will stand behind its cars, you may be more willing to take more “risk” in entering a construction contract with a trusted/known owner or GC. Read the court decision
Read the full story...
Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.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
Read the full story...
Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

---

Include Contract Clauses for Protection Against Ever-Evolving Construction Challenges

May 30, 2022 — Michael Henry & Kevin J. Riexinger - Construction Executive
The first quarter of 2022 provided a valuable glimpse into some of the major issues the construction industry can expect to continue impacting jobsites for the rest of the year. Early in the pandemic, construction was not immune from the shut-downs that swept across market sectors. Workers were staying home to shield themselves and their families from the COVID-19 virus (and variants). This caused delays with construction projects and failures to meet negotiated benchmarks or deadlines. Contractors were left to wonder whether they remained obligated to perform under their contracts, or whether COVID-19 allowed them to invoke force majeure clauses. Over the past two years, there has been much debate about whether force majeure clauses encompass COVID-19 risks. Traditionally, force majeure is only invoked for significant weather events or natural disasters. Unsurprisingly, outcomes of legal actions regarding COVID-19 and force majeure varied by state and by contract. It didn’t take long for contractors to seek a more predictable and certain solution. Reprinted courtesy of Michael Henry & Kevin J. Riexinger, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Riexinger may be contacted at kriexinger@gllawgroup.com Mr. Henry may be contacted at MbHenry@tcco.com Read the court decision
Read the full story...
Reprinted courtesy of

---

#9 CDJ Topic: Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc., et al.

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
David M. McClain of Higgins, Hopkins, McLain & Roswell, LLC reported on the Colorado Court of Appeals ruling in the above mentioned case regarding the Vallagio condominiums developed by Metro Inverness, LLC. McClain concluded, “As a builder, the moral of the story here is that you need not rely on the Colorado Legislature to protect your ability to arbitrate construction defect claims asserted against you by homeowners associations. All you need to do is to include within your declaration a valid and enforceable declarant consent provision requiring your consent to amend out of the declaration the arbitration requirement for construction defect claims.” Read the full story... Read the court decision
Read the full story...
Reprinted courtesy of

---

Virginia Families Hope to Sue over Chinese Drywall

October 10, 2013 — CDJ STAFF
Although Virginia isn't in the Fifth Circuit of the U.S. Court of Appeals, some Virginia homeowners ended up with a case there. And now the court has to decide whether Taishan Gypsum Co. Ltd. can be sued in American courts for defects in its products. The case made its way to Louisiana after the courts consolidated cases from across the country. If the court decides that the homeowners can’t sue, they could appeal to the Supreme Court, although that’s likely a longshot. Or, the homeowners could sue in the Chinese courts, also not likely. More than 300 homes in Virginia are affected by fumes from the Chinese-made drywall, but only seven residents in the town of Hampton Roads are at the heart of the current case. They were chosen as representative of the entire group. Those seven have been collectively awarded $2.6 million, but the drywall manufacturer is appealing the judgement. If Taishan is victorious, then the damages already awarded will be overturned and there won’t be an option for the others. The drywall emitted gases which corroded metals in the homes. One couple, Steve and Liz Heischober went through seven air conditioning coils in three years, along with problems with corrosion of appliances and electrical systems. If the current suit succeeds, the Heischobers, and the other, will be compensated for their damages, including the costs of repair and relocation. If Taishan loses, they could be responsible for about $1 billion. Read the court decision
Read the full story...
Reprinted courtesy of

---