FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Motion to Strike Insurer's Expert Opinion Granted

August 13, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The court granted the insured's motion to strike the testimony of the insurer's expert because the opinion lacked sufficient explanation or analysis. Affinity Mut. Ins. v. Thacker Air Conditioning Refrigeration Heating, 2019 U.S. Dist. LEXIS 84713 (N.D. Ind. May 20, 2019). The insured owned a market that needed renovations. The roof over an addition to the market extended from the wall of the extension to the top of the existing roof. The area between the old and new roofs was filled with blown-in insulation, so that the structural support from the new overbuilt roof was not visible. The weight of the overbuilt roof rested on top of the existing roof at the point where they met. This added additional weight on the trusses supporting the main roof. In 2014, the market upgraded the building with heating and insulation. Thacker was a subcontractor for work on the hearing system. Six gas furnaces, spaced about 35 feet apart along the length of the building, were placed by Thacker. The total weight of each unit was estimated at 280 pounds. 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

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Toronto Contractor Bondfield Wins Court Protection as Project Woes Mount

May 27, 2019 — Scott Van Voorhis - Engineering News-Record
A Toronto area contractor at the center of a series of delays to major projects in Ontario, including a $139-million hospital expansion, has won court protection from its creditors. The Ontario Superior Court earlier this month granted Bondfield Construction Co.’s application for protection, court records show. Read the court decision
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Reprinted courtesy of Scott Van Voorhis, ENR

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Counter the Rising Number of Occupational Fatalities in Construction

April 19, 2021 — Joshua Jacobsen - Construction Executive
Prior to the pandemic, the construction industry was experiencing mental and behavioral health stressors and increasing fatalities. The pandemic is contributing to these underlying conditions threatening the safety and wellbeing of the construction workforce:

• Workers in construction occupations experienced 1,066 fatalities, a 6.3% increase and the highest total since 2007. Across all industries slips, trips and falls resulted in 880 deaths, a 11.3% increase from the previous year;
• Increasing mental health challenges as evidenced by growing percentage of Americans starting therapy; and
• Rising risk of relapse to substance use disorders and especially opioid overdoses. Deaths from unintentional overdoses of non-medical drug or alcohol use while at work climbed slightly to 313, marking the seventh straight annual increase in this category.

Reprinted courtesy of Joshua Jacobsen, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Jacobsen may be contacted at jjacobsen@holmesmurphy.com

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California to Build ‘Total Disaster City’ for Training

July 30, 2014 — Beverley BevenFlorez-CDJ STAFF
California is building a “world-class $56 million training facility in eastern Sacramento County that would pit fire crews against a variety of realistic, pressure-packed simulated disasters,” according to the Sacramento Bee. Construction has begun on the Emergency Response Training Center in Mather Field in Rancho Cordova. “The project is a joint effort between Henke’s fire department, the Governor’s Office of Emergency Services and the Sacramento Fire Department,” reported the Sacramento Bee. Read the court decision
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Mitigating FCRA Risk Through Insurance

November 30, 2020 — Sergio F. Oehninger, Geoffrey B. Fehling & Matt Revis - Hunton Insurance Recovery Blog
As reported in a recent Hunton Andrews Kurth client alert, Mitigating FCRA Risks in the COVID-19 World (Oct. 23, 2020), consumer litigation claims related to the Fair Credit Reporting Act (FCRA) doubled in the years leading up to the COVID-19 pandemic. After a slight decrease in FCRA filings due to court closures and other COVID-19 restrictions, claims will likely resume their previous upward trajectory. In fact, the Consumer Financial Protection Bureau (CFPB) has already seen an uptick in consumer complaints, many of which mention COVID-19 specific keywords. Given the anticipated rise in FCRA complaints, the alert highlights the need for financial institutions and financial services companies to develop FCRA-compliant policies and procedures, including training on those policies and procedures, to mitigate the risk of FCRA-related enforcement actions and litigation claims, particularly in light of the regulatory changes relating to the COVID-19 pandemic. Another important risk mitigation tool to consider is insurance, which can offer protection when even the most robust preventative measures fail to prevent an FCRA claim. Coverage for FCRA-related claims—often from directors’ and officers’ (D&O) or errors and omissions (E&O) policies—might be broader than one would initially expect. Policies may cover defense costs involving legal fees, as well as indemnification for damages. Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth, Geoffrey B. Fehling, Hunton Andrews Kurth and Matt Revis, Hunton Andrews Kurth Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Read the court decision
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Industry Groups Decry Jan. 6 Riot; DOT Chief Chao Steps Down in Protest

January 11, 2021 — Aileen Cho & Pam Radtke Russell - Engineering News-Record
Industry and business groups and labor unions universally denounced the actions of rioters who broke into the U.S. Capitol on Jan. 6, with statements going as far as calling for President Donald Trump to step down but others taking a more measured response. Reprinted courtesy of Aileen Cho, Engineering News-Record and Pam Radtke Russell, Engineering News-Record Ms. Cho may be contacted at choa@enr.com Ms. Russell may be contacted at Russellp@bnpmedia.com Read the full story... Read the court decision
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IRMI Expert Commentary: Managing Insurance Coverage from Multiple Insurers

May 11, 2020 — Gregory D. Podolak, Philip B. Wilusz & Ashley McWilliams - Saxe Doernberger & Vita
What do you do when less is more? In many loss scenarios, triggering coverage under multiple policies can be a critical and effective strategy. However, doing so has the potential to complicate the insurance recovery proceedings immensely, and possibly even undermine those overall goals. The relation of "other insurance" clauses, allocation schemes, and the practical impacts of interacting with multiple insurers can all leave the insured with some difficult questions. We present here several scenarios that illustrate how these concerns can arise and how they should be addressed to avoid running into what The Notorious B.I.G.—had he been a coverage lawyer—would have called "The More Coverage We Come Across, the More Problems We See." The "Other Insurance" Issue This first scenario is where a single-year loss implicates multiple lines of coverage. Consider the following: a general contractor (GC) faces a property damage liability claim from an owner. As a prudent insured, the GC notifies its customary first line of defense, its commercial general liability (CGL) insurer, to provide a defense. As knowledge of the claim evolves, it appears an element of pollution may be involved. The GC also places its pollution insurer on notice. Later, it's determined that the GC may have a professional liability exposure, so it tenders a claim to its professional liability insurer. Now assume that each insurer accepts coverage. Reprinted courtesy of Saxe Doernberger & Vita attorneys Gregory D. Podolak, Philip B. Wilusz and Ashley McWilliams Mr. Podolak may be contacted at gdp@sdvlaw.com Mr. Wilusz may be contacted at pbw@sdvlaw.com Ms. McWilliams may be contacted at amw@sdvlaw.com Read the court decision
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Express Warranty Trumping Spearin’s Implied Warranty

March 06, 2022 — David Adelstein - Florida Construction Legal Updates
Be mindful of that express warranty provision in your contract. It could result in an outcome that you did not consider or factor when submitting your proposal or agreeing to your contract amount. An express warranty could have the effect of eviscerating the argument that you performed your scope of work pursuant to the plans and specifications. In other words, the applicability of the Spearin doctrine could be rendered moot based on express warranty language in your contract that is fully within your control because you do not have to agree to that language. Under the Spearin doctrine:

[W]hen a ‘contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specification.’ Spearin and its progeny set forth a default rule of fundamental fairness that when a general contractor requires a subcontractor to follow certain plans and specifications, the general contractor impliedly warrants that those plans and specifications are ‘free from design defects.’ Put simply, Spearin protects subcontractors from liability for simply following the general contractor’s direction and requirements. However, the implied warranty set forth in Spearin and its progeny may be overcome by express agreement. Where a general contractor and subcontractor expressly agree to allocate the risk of a defective product to the subcontractor, that express agreement must prevail over Spearin’s implied warranty. Lighting Retrofit International, LLC v. Consellation NewEnergy, Inc., 2022 WL 541156 (D. Md. 2022) (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

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