Fairfield Connecticut Building Expert Directory

No Indemnity Coverage Where Insured Suffers No Loss

November 05, 2014 — Tred R. Eyerly - Insurance Law Hawaii
The insured subcontractor sought coverage under its Builder's Risk policy for loss despite already being paid under contract the amount sought under the policy. MKB Constr. v. Am Zurich Ins. Co., 2014 U.S. Dist. LEXIS 136096 (W.D. Wash. Sept. 24, 2014). MKB contracted with the Lower Yukon School District (LYSD) to place gravel fill for a new building pad upon which a school building would be placed in Emmonak, Alaska. The project site was built on tundra that melted in the summer, becoming marshy and pocketed by pools of standing water. LYSD provided the bidding contractors with information stating that settlements of 3 to 9 inches could be expected in areas with 30 inches of fill. The contract was awarded to MKB, who subsequently realized it had under bid the amount of gravel fill that would be required. The estimated difference in the amount bid and the amount that would be needed was 6,583 cubic yards. LYSD refused to increase the contract price. 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

Hunton Insurance Team Wins Summary Judgment on Firm’s Own Hurricane Harvey Business Income Loss

March 23, 2020 — Michael S. Levine & Michelle M. Spatz - Hunton Insurance Recovery Blog
A Texas judge has ruled that Hunton Andrews Kurth is entitled to coverage from Great Northern Insurance Co., a unit of Chubb, Ltd. (“Chubb”), for losses its predecessor firm suffered when Hurricane Harvey closed its Houston office and disrupted business in 2017. The court agreed with Hunton’s position that the policy, written specifically for a law firm, covered its business income loss until the firm’s operations were restored to their pre-loss levels. The court rejected in its entirety Chubb’s argument that coverage lasted only until the physical damage that closed the building had been repaired. Rather, siding with Hunton, the court found that the policy language affords, in addition to ordinary business income coverage during the damage period, “extended period” coverage that commences after the damaged property is repaired and after the firm’s operations resume. From August 27 to August 31, 2017, the firm was forced to close its Houston office due to flooding and damage caused by Hurricane Harvey. While employees were permitted to return to the office on August 31, income did not return to its pre-loss level until September 14, 2017. The firm submitted a claim to Chubb for the loss sustained from August 27 to September 14, but Chubb paid only for income loss suffered during the 3-day closure period, and refused to cover the loss suffered after the building reopened. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Michelle M. Spatz, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Spatz may be contacted at mspatz@HuntonAK.com Read the court decision
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Developer Pre-Conditions in CC&Rs Limiting Ability of HOA to Make Construction Defect Claims, Found Unenforceable

August 16, 2021 — Garret Murai - California Construction Law Blog
The Davis-Stirling Common Interest Development Act (Civ. Code §4000, et seq.), also known simply as “Davis-Stirling,” is a statute that applies to condominium, cooperative and planned unit development communities in California. The statute, which governs the formation and management of homeowners associations or HOAs, also governs lawsuits filed by HOAs for construction defects. In the next case, Smart Corners Owner Association v. CJUF Smart Corner LLC, Case No. D076775 (May 20, 2021), the 4th District Court of Appeal addressed the pre-litigation voting requirements of Davis-Stirling and the impact of recent amendments to the Act. The Smart Corners Case In 2004, CJUF Smart Corner LLC contracted with Hensel Phelps Construction Company for the construction of the Smart Corner condominium project, a 19-story mixed-use development with 301 residential units and common areas, in San Diego, California. As part of the development an HOA was formed, the Smart Corner Owner Association. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

The Complex Insurance Coverage Reporter – A Year in Review

February 27, 2019 — White and Williams LLP
Welcome to CICR’s annual review of insurance cases. Here, we spotlight five (actually, seven) decisions from the last year that you should know about, and five pending cases—all before state high courts—to keep an eye on. The choices were not always easy. That is because 2018 saw a number of notable insurance coverage developments. Among them was the “Restatement of the Law – Liability Insurance,” a nearly five hundred-page document that the American Law Institute (ALI) adopted after eight years and twenty-nine drafts. Already, much has been written about the ALI Restatement, including by us. There will be more to come. Going forward, we will continue to highlight significant examples where courts address its provisions. Read the court decision
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Reprinted courtesy of White and Williams LLP

North Carolina, Tennessee Prepare to Start Repairing Helene-damaged Interstates

October 07, 2024 — Derek Lacey - Engineering News-Record
Damage from Hurricane Helene to interstates between North Carolina and Tennessee includes washed-out roads and bridges, landslides and extensive flooding—creating a long list of repair work needed for state transportation agencies as they prepare to rebuilding critical highways across the Appalachian Mountains. Reprinted courtesy of Derek Lacey, Engineering News-Record Mr. Lacey may be contacted at laceyd@enr.com Read the full story... Read the court decision
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David M. McLain, Esq. to Speak at the 2014 CLM Claims College

August 13, 2014 — David M. McLain, Esq. – Colorado Construction Litigation
David McLain will be a speaker at the School of Construction. The Claims College will be held from September 7-10 in Philadelphia, Pennsylvania. Mr. McLain is a founding member of Higgins, Hopkins,McLain & Roswell, LLC, a firm which specializes in construction law and construction litigation throughout Colorado. Mr. McLain received his undergraduate degree from Colorado State University, graduating cum laude, and his law degree from the University of Denver, College of Law. Mr. McLain completed the Claims and Litigation Management Alliance Litigation Management Institute, earning the designation from that organization as a Certified Litigation Management Professional. He has a general civil litigation practice with an emphasis on the defense of complex construction lawsuits on behalf of developers and general contractors. As a result of the experience gained by defending some of Colorado’s largest residential construction defect lawsuits, developers, general contractors, and subcontractors seek out Mr. McLain to consult on risk avoidance and risk management strategies. Currently among his clients are several of the state’s largest home builders, regional and custom builders, and numerous insurance carriers. Mr. McLain is an AV® Preeminent™ Peer Review Rated attorney by Martindale-Hubbell and is a regular speaker at local, regional, and national seminars regarding construction defect litigation in Colorado. Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

Miller Act Statute of Limitations and Equitable Tolling

July 11, 2022 — David Adelstein - Florida Construction Legal Updates
When it comes to a Miller Act payment bond claim, there is a one-year statute of limitations—“The Miller Act contains a statute of limitations provision that requires actions to ‘be brought no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the claim.’” U.S. f/u/b/o Techniquex Specialty Flooring, Inc., v. Philadelphia Indemnity Ins. Co., 2022 WL 169070, *3 (M.D.Penn. 2022) (citing the Miller Act). There is an argument, albeit a difficult one, to support an equitable tolling of the one-year statute of limitations. This would be an argument filed when the one-year statute of limitations expires, but there is reason for missing the statute of limitations caused typically by the overt misleading of the defendant (surety/bond-principal):

“Equitable tolling functions to stop the statute of limitations from running where the claim’s accrual date has passed.” “Equitable tolling is appropriate in three situations: (1) when the defendant has actively misled the plaintiff respecting the facts which comprise the plaintiff’s cause of action; (2) when the plaintiff in some extraordinary way has been prevented from asserting his rights; and (3) when the plaintiff has timely asserted his rights in the wrong forum.” The first ground for equitable tolling“appears to be the same, in all important respects” to equitable estoppel, which “excuses late filing where such tardiness results from active deception on the part of the defendant” and “what courts describe as ‘equitable tolling’ is encompassed by the latter two parts of our Circuit’s doctrine.” The extraordinary circumstances standard may be met “where the defendant misleads the plaintiff, allowing the statutory period to lapse; or when the plaintiff has no reasonable way of discovering the wrong perpetrated against her …” Tehniquex, supra, at *5 (internal citations omitted).

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Congratulations to Partner Vik Nagpal on his Nomination for West Coast Casualty’s Jerrold S. Oliver Award of Excellence!

March 27, 2023 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is honored to share that Downtown San Diego and Encinitas Managing Partner Vik Nagpal is nominated for West Coast Casualty’s Jerrold S. Oliver Award of Excellence! Every year, West Coast Casualty recognizes an individual who is committed, trustworthy, and has contributed to the betterment of the construction defect community. The award is named after the late Judge Jerrold S. Oliver who is considered a “founding father” in the alternate resolution process in construction claims and litigation. Each year, members of the construction community are asked to nominate individuals who invoke the same spirit as Judge Oliver. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES