FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Legal Implications of 3D Printing in Construction Loom

July 10, 2018 — Aldo E. Ibarra - Engineering News-Record
Imagine a printer in the middle of a construction site programmed with a designer’s plans and specifications to build an entire home from scratch. As concrete is fed into the printing device, a technician hits enter on her computer and a 3D printer starts fabricating the structure’s walls and roof. Read the court decision
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Reprinted courtesy of Aldo E. Ibarra, ENR
ENR staff may be contacted at ENR.com@bnpmedia.com

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Ninth Circuit Rules Supreme Court’s Two-Part Test of Implied Certification under the False Claims Act Mandatory

May 13, 2019 — Meredith Thielbahr - Gordon & Rees Construction Law Blog
For those contractors in the government arena, read on. The False Claims Act (“FCA”) was enacted to deter knowingly fraudulent actions by contractors which resulted in a loss of property to the Government. Intent to defraud with resulting financial hardship was required. Contrary to popular misconception, the statute was not designed to punish all false submissions to the Government simply because those submissions, or claims, are later found to be false. The statute’s inclusion of the requisite element of knowledge is consistent with this notion:

1. A defendant must submit a claim for payment to the Government;
2. the claim must be false or fraudulent;
3. the defendant must have known the claim was fraudulent when it was submitted (also known as scienter); and
4. the claim must have caused the Government to pay out money.

See 31 U.S.C. § 3729(a). Despite these explicit elements (in addition to common law elements of fraud), over the last two decades, contractors have seen ever-expanding theories of FCA recovery presented by qui tam plaintiffs and the Government. For example, under the FCA, the false “claim” evolved over time: the claim no longer needs to be an express false claim (i.e. the truthfulness of the claim is a direct condition of payment); the claim can be “implied” misrepresentation or “half-truth”. Read the court decision
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Reprinted courtesy of Meredith Thielbahr, Gordon & Rees Scully Mansukhani
Ms. Thielbahr may be contacted at mthielbahr@grsm.com

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Liability Coverage for Claims of Publishing Secret Data Does Not Require Access by Others

April 20, 2016 — Sean Mahoney and Laura Schmidt – White and Williams LLP
On April 11, 2016, the United States Court of Appeals for the Fourth Circuit concluded that general liability insurance covered claims alleging that an insured was negligent in securing private medical records, even where there was no evidence that any third parties had actually viewed the underlying plaintiffs’ medical records. This “unpublished” decision was issued in Travelers Indemnity Company of America v. Portal Healthcare Solutions, LLC less than three weeks after the court heard oral argument. Portal Healthcare accordingly stands for the proposition that “publication” within the meaning of the standard commercial general liability coverage for “personal and advertising injury” only requires that claims against an insured allege that confidential information was made available to the public, without allegations that any third party actually accessed it, to trigger the insurer’s duty to defend. Reprinted courtesy of Sean Mahoney, White & Williams LLP and Laura Schmidt, White & Williams LLP Mr. Mahoney may be contacted at mahoneys@whiteandwilliams.com Ms. Schmidt may be contacted at schmidtl@whiteandwilliams.com Read the court decision
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PSA: Performing Construction Work in Virginia Requires a Contractor’s License

March 04, 2019 — Christopher G. Hill - Construction Law Musings
As a Virginia construction attorney, I often get calls for assistance in dealing with payment disputes. Frequently, these calls come from out of state contractors and subcontractors that have performed work in Virginia. One of the first questions that I ask is whether these contractors and subcontractors hold a contractor license from the Commonwealth of Virginia. While most do, some do not, likely because they are unaware of the requirement in Virginia that all contractors be licensed when performing work in the Commonwealth. While I haven’t done an exhaustive survey of the statutes and regulations of every state of the union on this point, the confused silence leads me to believe that such is not a requirement in every state. The most common reaction after “I had no idea I needed one” is that the general contractor holds a license so they did not think they needed to hold one. As I stated above, this is incorrect. 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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Official Tried to Influence Judge against Shortchanged Subcontractor

February 10, 2012 — CDJ STAFF

A contractor testified in the trial of former Cuyahoga County Commissioner Jimmy Dimora. According to Fox 8 in Cleveland, Ohio, Sean Newman, the president of Letter Perfect testified that his company was a subcontractor on the reconstruction of the locker rooms at the Cleveland Browns Stadium. Newman said his company was paid only $400,000 of their $650,000 bid. When Letter Perfect sued the contractor, D.A.S. Construction, Dimora called the judge to influence her to rule in favor of D.A.S.



The judge in the earlier case, Bridgett McCafferty, has been found guilty of lying to the FBI during their investigation and is serving a 14-month prison sentence.

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South Carolina Legislature Redefining Occurrences to Include Construction Defects in CGL Policies

April 01, 2011 — Beverley BevenFlorez CDJ STAFF

The question of what circumstances must be in place for construction defects to be covered in a general commercial liability (CGL) policies is being raised by the courts and the legislature in South Carolina. The Insurance Journal reports that the American Insurance Association as well as the Property and Casualty Insurers Association of America are speaking out on the issue.

The problem seems to be centered on what defines an “occurrence.” CGL policies were not meant to cover faulty workmanship, according to the filing by the South Carolina Supreme Court. In January of this year, the South Carolina Supreme Court reversed the ruling in Crossmann Communities v Harleysville Mutual declaring that “Respondents cannot show the damage here was the result of an occurrence. Rather, the damage was a direct result and the natural and expected consequence of faulty workmanship; faulty workmanship did not cause an occurrence resulting in damage.” They focused their attention on the word “accident,” stating that there is a fortuity element that is not diminished.



The South Carolina legislature reacted by producing a bill that would add new language directly negating the ruling by the Supreme Court. The South Carolina bill S-431 would change the definition of an occurrence in regards to construction defects as follows: “For a liability insurance policy issued to a construction professional, an ‘occurrence’ means, at a minimum: (1) an accident; or (2) continuous or repeated exposure to substantially the same general harmful condition or substance. No additional requirement of a fortuitous event is needed to constitute an ‘occurrence.’”



S-431 is currently residing in the House Committee on Labor, Commerce and Industry.



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Construction Firm Settles Suit Over 2012 Calif. Wildfire

January 15, 2019 — Associated Press - Engineering News-Record
SACRAMENTO, Calif. (AP) — Officials say a construction company and a logging firm have collectively agreed to pay $9 million for damages resulting from a 2012 wildfire that burned more than 1,600 acres of national forest land in Northern California. The U.S. Attorney's office in Sacramento says Monday that the agreement settles a lawsuit brought by the federal government against Kernen Construction and Bundy & Sons Logging. Read the court decision
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Reprinted courtesy of Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com

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Occurrence Found, Business Risk Exclusions Do Not Bar Coverage for Construction Defects

May 13, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The court determined that the supplier of cement for the construction of pools had coverage for alleged construction defects in the finished pools. Harleysville Worcester Ins. Co. v. Paramount Concrete, Inc., 2014 U.S. Dist. LEXIS 43889 (D. Conn. March 31, 2014). R.I. Pools sued Paramount, a manufacturer and supplier of shotcrete, after cracking appeared in nineteen pools built by R.I. Pools using Paramount's shotcrete. The jury awarded R.I. Pools compensatory damages of $2,760,000. Paramount's insurer, Harleysville, defended under a reservation of rights. After the verdict, Harleysville filed for a declaratory judgment that there was no coverage under the CGL policy. Paramount filed for partial summary judgment. Harleysville first argued there was no occurrence. The policy's definition of occurrence included the phrase, "continuous exposure." This broadened the term "occurrence" beyond the word accident to include a situation where damage occurred over a period of time, rather than suddenly or instantaneously. 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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