FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Homeowner Sues Brick Manufacturer for Spalling Bricks

October 22, 2013 — CDJ STAFF
A Columbia, South Carolina homeowner has sued Kinney Brick Co., alleging that the bricks used in his home were defective and are now crumbling. The lawsuit alleges that the manufacturer and the distributor were both aware that the bricks would retain moisture and crumble. Read the court decision
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Reprinted courtesy of

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Big Policyholder Win in Michigan

January 05, 2017 — Jeremiah M. Welch – Saxe Doernberger & Vita, P.C.
Jeremiah Welch and Michael Barrese recently had a big win in front of the Michigan Court of Appeals. The case (Skanska-Schweitzer v. Farm Bureau General Insurance Company of Michigan) involved Skanska’s claim for defense and indemnity from Farm Bureau Ins. Co. of Michigan for an injury to an elementary school student arising out of the removal of playground equipment by a landscaping company, Horrocks. Farm Bureau denied coverage because it claimed that the work was not part of Horrocks’ contract with the project owner and therefore Skanska, the construction manager, did not qualify as an additional insured on the policy. SDV argued that the AI endorsement did not specify that Horrocks’ work be performed as part of its contract with the owner; it only required that the work be performed “for Skanska.” Read the court decision
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Reprinted courtesy of Jeremiah M. Welch, Saxe Doernberger & Vita, P.C.
Mr. Welch may be contacted at jmw@sdvlaw.com

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Wisconsin Supreme Court Holds that Subrogation Waiver Does Not Violate Statute Prohibiting Limitation on Tort Liability in Construction Contracts

October 21, 2019 — Gus Sara - The Subrogation Strategist
In Rural Mut. Ins. Co. v. Lester Bldgs., LLC 2019 WI 70, 2019 Wisc. LEXIS 272, the Supreme Court of Wisconsin considered whether a subrogation waiver clause in a construction contract between the defendant and the plaintiff’s insured violated Wisconsin statute § 895.447, which prohibits limitations of tort liability in construction contracts. The Supreme Court affirmed the lower court’s decision that the waiver clause did not violate the statute because it merely shifted the responsibility for the payment of damages to the defendant’s insurance company. The waiver clause did not limit or eliminate the defendant’s tort liability. This case establishes that while § 895.447 prohibits construction contracts from limiting tort liability, a subrogation waiver clause that merely shifts responsibility for the payment of damages from a tortfeasor to an insurer does not violate the statute and, thus, is enforceable. In Rural Mutual, the plaintiff’s insured, Jim Herman, Inc. (Herman), entered into a contract with Lester Buildings, LLC (Lester) to design and construct a barn on Herman’s property. The contract included a provision that stated the following: Both parties waive all rights against each other and any of their respective contractors, subcontractors and suppliers of any tier and any design professional engaged with respect to the Project, for recovery of any damages caused by casualty of other perils to the extent covered by property insurance applicable to the Work or the Project, except such rights as they have to the proceeds of such property insurance and to the extent necessary to recover amounts relating to deductibles of self-insured retentions applicable to insured losses. . . . This waiver of subrogation shall be effective notwithstanding allegations of fault, negligence, or indemnity obligation of any party seeking the benefit or production [sic] of such waiver. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Homeowner Protection Act of 2007 Not Just for Individual Homeowners Anymore?

March 22, 2017 — Maggie Stewart - Colorado Construction Litigation
On March 9, 2017, the Colorado Court of Appeals announced its decision in Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Company, No. 16CA0101, 2017 COA 31 (Colo. App. Mar. 9, 2017). As a matter of first impression, the Court evaluated whether a senior living facility constitutes “residential property” protected by the Homeowner Protection Act of 2007 ("HPA") provision of the Construction Defect Reform Act (CDARA). In 2007, Plaintiff Broomfield entered into a contract with Defendant Brinkmann for construction of a senior assisted and independent living facility. The contract contained warranty provisions related to the quality of construction and cautioned that Plaintiff’s failure to provide Defendant with prompt notice of any defects would result in waiver of any claim for breach. The contract also limited Defendant Brinkmann’s liability by identifying three separate accrual provisions that would determine the time period in which Plaintiff could bring a claim. The project was completed in 2009. Read the court decision
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Reprinted courtesy of Maggie Stewart, Higgins, Hopkins, McLain & Roswell, LLC
Ms. Stewart may be contacted at stewart@hhmrlaw.com

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Failure to Comply with Contract Leaves No Additional Insured Coverage

January 07, 2015 — Tred R. Eyerly – Insurance Law Hawaii
Indemnity obligations and additional insured coverage were at issue in Strauss Painting, Inc. v. Mt. Hawley Ins. Co., 2014 N.Y. LEXIS 3347 (N.Y. Nov. 24, 2014). Strauss Painting, Inc. (Strauss) contracted with the Metropolitan Opera Association, Inc. (the Met) to strip and repaint the rooftop steel carriage track for the opera house's automated window-washing equipment. The contract provided that Strauss would indemnify and hold the Met harmless. Exhibit D to the contract set forth three types of insurance that Strauss was to procure: (1) workers' compensation; (2) owners and contractors protective liability (OCP); and (3) comprehensive general liability. The OCP policy was to add the Met as an additional insured. Strauss failed to obtain the OCP policy. At the time it contracted with the Met, Strauss had a CGL policy issued by Mt. Hawley. The policy's additional insured endorsement (ICO form CG 20 33 07 04) stated that "an insured" included "any organization for whom Strauss is performing operations when Strauss and such organization have agreed in writing that such organization be added as an additional insured." 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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Kahana Feld Partner Noelle Natoli Named President of Women Lawyers Association of Los Angeles

October 07, 2024 — Linda Carter - Kahana Feld
LOS ANGELES – Sep. 16, 2024 – Kahana Feld is pleased to announce that partner Noelle Natoli was recently installed as the 2024-25 president of the Women Lawyers Association of Los Angeles (WLALA). The mission of WLALA is to promote the full participation in the legal profession of women lawyers and judges from diverse perspectives and backgrounds, maintain the integrity of our legal system by advocating principles of fairness and equality, and improve the status of women by supporting their exercise of equal rights. Natoli is a partner based in Kahana Feld’s Los Angeles office and focuses her civil trial practice on the defense of both insurers and insureds primarily in the areas of elder abuse, transportation defense, and general liability. Her clients include individuals, family-owned businesses, and national corporations. Natoli also chairs the Diversity & Inclusion Committee for the Trucking Industry Defense Association and serves as a board member of the National Conference of Women’s Bar Associations. Read the court decision
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Reprinted courtesy of Linda Carter, Kahana Feld
Ms. Carter may be contacted at lcarter@kahanafeld.com

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Do You Have the Receipt? Pennsylvania Court Finds Insufficient Evidence That Defendant Sold the Product

December 23, 2024 — Gus Sara - The Subrogation Strategist
In State Farm Fire & Cas. Co. v. Coway USA, Inc., No. 22-cv-3516, 2024 U.S. Dist. LEXIS 192849, the United States District Court for the Eastern District of Pennsylvania (District Court) considered whether the plaintiff produced sufficient evidence to establish that the defendant sold and/or marketed a product and, thus, could be held liable for an alleged defect in the product. The plaintiff, a subrogating insurance carrier, brought strict product liability and breach of warranty claims against the defendant—the installer of a bidet in its insured’s home—claiming that the defendant also marketed and sold the bidet. The sole evidence to support a finding that the defendant sold the bidet was the homeowner’s testimony that she bought the product from the installer. The court found that the insured’s testimony, without any documentation or other corroborating evidence, was insufficient to establish that the defendant sold the product. Since proof of a sale is a required element for strict product liability and breach of warranty claims, the District Court granted the defendant’s motion for summary judgment, dismissing the case. This case involved a water loss to the Pennsylvania residence of Mikyung Kim and her husband Adrian Kim (collectively, the Kims) that was discovered in April 2021. An investigation revealed that the water loss originated from the failure of a bidet for a toilet in the second-floor bathroom. The Kims alleged that defendant, Coway USA, Inc. (Coway), sold the bidet and installed it around 2010. An employee of the plaintiff’s liability expert, a materials engineer, opined that a T-connector—a plastic valve that regulates the flow of water to and through the bidet—failed due to overtightening of the connector during the manufacturing process. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

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Construction Litigation Roundup: “D’Oh!”

August 12, 2024 — Daniel Lund III - Lexology
The U.S. DOL found itself on June 24 on the wrong end of a preliminary injunction concerning recent changes to the Davis-Bacon Act. The lawsuit, initiated in Texas federal court by the Associated General Contractors of America and other concerned citizens, sought a preliminary injunction barring implementation and enforcement of “specified portions of § 5.2 and § 5.5(e) of the DOL’s ‘Updating the Davis-Bacon and Related Acts Regulations’” – the “Final Rule,” published August 23, 2023. After determining the appropriateness of the “standing” of the plaintiffs based upon the plaintiffs being “adversely affected” by the Final Rule, the federal court preliminarily enjoined enforcement of the Final Rule. In noting its disagreement with the Final Rule, the court stated:

“… the Final Rule amends the DBA [the Davis-Bacon Act] by imposing a stealth selfimplementing DBA requirement in the contract by an operation-of-law provision that contradicts the express statutory language of the Act [the court bristling at the idea that contracts might exclude with impunity the otherwise mandated DBA clauses]. Further, the Final Rule amends the Act to extend the DBA to apply to workers who are not mechanics and laborers, and to extend the scope of the work covered by DBA to include work is not performed ‘directly on the site of the work.’

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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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