FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

CGL Coverage Dispute Regarding the (J)(6) And (J)(7) Property Damage Exclusions

April 18, 2023 — David Adelstein - Florida Construction Legal Updates
A new insurance coverage opinion dealing with a commercial general liability’s (CGL) duty to defend involved exclusions commonly known as the (j)(6) and (j)(7) property damage exclusions (and in certain policies known as the (j)(5) and (j)(6) exclusions). These are the exclusions that apply during ongoing operations. Exclusion (l), or the “your work” exclusion, applies post-completion, i.e., it is an exclusion for “property damage” to “your work” included in the “products-completed operations hazard.” Exclusions (j)(6) and (j)(7) in the policy at-issue exclude coverage for property damage to:

(j)(6) That particular part of real property on which any insured or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; (j)(7) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.

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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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Disaster Remediation Contracts: Understanding the Law to Avoid a Second Disaster

August 30, 2017 — Todd Colvard – Peckar & Abramson, P.C.
In the aftermath of Hurricane Harvey, consumers and contractors should be aware of protections prescribed by the Texas Legislature for Disaster Remediation Contracts. Chapter 58 of the Texas Business and Commerce Code includes several important consumer protections. Consumers should be aware of these protections, and contractors should take care to avoid inadvertent violations. This statute applies to a contractor engaged in “disaster remediation,” in a county subject to a disaster declaration. Those contracts are subject to certain notice provisions and limitations. A violation of Chapter 58 is considered a Deceptive Trade Practice and could subject a violator to both public and private remedies. The full text of Chapter 58 is found here: http://www.statutes.legis.state.tx.us/Docs/BC/htm/BC.58.htm. Read the court decision
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Reprinted courtesy of Todd Colvard, Peckar & Abramson, P.C.
Mr. Colvard may be contacted at tcolvard@pecklaw.com

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Waive Your Claim Goodbye: Louisiana Court Holds That AIA Subrogation Waiver Did Not Violate Anti-Indemnification Statute and Applied to Subcontractors

May 23, 2022 — Gus Sara - The Subrogation Strategist
In 2700 Bohn Motor, LLC v. F.H. Myers Constr. Corp., No. 2021-CA-0671, 2022 La. App. LEXIS 651 (Bohn Motor), the Court of Appeals of Louisiana for the Fourth Circuit (Court of Appeals) considered whether a subrogation waiver in an AIA construction contract was enforceable and, if so, whether the waiver also protected subcontractors that were not signatories to the contract. The lower court granted the defendants’ motion for summary judgment based on the subrogation waiver in the construction contract. The plaintiffs appealed the decision, arguing that the subrogation waiver violated Louisiana’s anti-indemnification statute. The plaintiffs also argued that even if enforceable, the subrogation waiver did not apply to the defendant subcontractors since they were not parties to the contract. The Court of Appeals ultimately held that the subrogation waiver did not violate the anti-indemnification statute because the waiver did not shift liability, which the statute was intended to prevent. In addition, the Court of Appeals found that the contract sufficiently satisfied the required elements for the defendant subcontractors to qualify as third-party beneficiaries of the contract. 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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Arctic Roads and Runways Face the Prospect of Rapid Decline

July 19, 2021 — Tony Frangie Mawad - Bloomberg
Melting permafrost across Arctic regions has already caused highways to buckle and homes to sink. A new study conducted in the north of Alaska helps explain why rising temperatures are hitting roads, airports and other infrastructure particularly hard. Researchers who monitored temperatures and melting near Prudhoe Bay on Alaska’s North Slope documented how the thawing of frozen ground beneath a highway tended to spread laterally to the side of the road, with the melting process accelerated by snow accumulations and puddling. Those interactions led to more rapid thawing than in areas of undisturbed permafrost. Researchers also found that melting in their test area, alongside a highway that runs atop permafrost, followed a two-phase process — a gradual initial thaw, followed by an accelerated process once warming exceeded a critical point. Read the court decision
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Reprinted courtesy of Tony Frangie Mawad, Bloomberg

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Franchisors Should Consider Signing a Conditional Lease Assignment Rather Than a Franchisee’s Lease

November 17, 2016 — Richard H. Herold – Real Estate Litigation Blog
In Franchise & High Properties, LLC v. Happy’s Franchise, LLC, a 2015 decision issued by the Court of Appeals in Michigan, the franchisor, Happy’s Pizza Franchise, LLC, signed a five-year lease for the commercial space to be occupied by its franchisee, Happy’s Pizza #19, Inc. The franchisor did so to secure a right of first refusal to purchase the property and to enforce the franchise agreement to have the lease assigned to the franchisor if the franchisee defaulted. The issue in the case was whether the term “tenant” referred solely to Happy’s Pizza #19 or whether it also included Happy’s Franchise as a co-tenant. “Tenant” was defined as follows: “Happy’s Pizza #19, Inc., 29102 Telegraph Road, Suite 607, Southfield, MI 48034, the lessee, and Happy’s Pizza Franchise, LLC, a Michigan limited liability company (hereinafter referred to as `Franchisor’), hereinafter designated as the Tenant.” Read the court decision
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Reprinted courtesy of Richard H. Herold, Real Estate Litigation Blog
Mr. Herold may be contacted at rherold@swlaw.com

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Interior Designer Licensure

October 11, 2017 — David Adelstein - Florida Construction Legal Updates
An interior designer that provides residential interior design services does NOT need to be registered or licensed with the state. On this point, Florida Statute s. 481.229(6)(a) specifies: (6) This part shall not apply to: (a) A person who performs interior design services or interior decorator services for any residential application, provided that such person does not advertise as, or represent himself or herself as, an interior designer. For purposes of this paragraph, “residential applications” includes all types of residences, including, but not limited to, residence buildings, single-family homes, multifamily homes, townhouses, apartments, condominiums, and domestic outbuildings appurtenant to one-family or two-family residences. However, “residential applications” does not include common areas associated with instances of multiple-unit dwelling applications. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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Potential Extension of the Statutes of Limitation and Repose for Colorado Construction Defect Claims

April 27, 2020 — David M. McLain – Colorado Construction Litigation
On January 27th, Senator Robert Rodriguez introduced SB 20-138 into the Colorado Legislature. The bill has been assigned to the Senate Judiciary Committee and has not yet been scheduled for its first hearing in that committee. In short, Senate Bill 20-138, if enacted, would:

1. Extend Colorado’s statute of repose for construction defects from 6+2 years to 10+2 years;
2. Require tolling of the statute of repose until the claimant discovers not only the physical manifestation of a construction defect, but also its cause; and
3. Permit statutory and equitable tolling of the statute of repose.

Colorado’s statute of repose for construction defect claims are codified at C.R.S. § 13-80-104. In 1986, the Colorado Legislature set the statute of repose period at 6+2 years. For the last 34 years, Colorado’s statute of repose for owners’ claims against construction professionals has been substantially the same, to wit:

(1) (a) Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.

(2) In case any such cause of action arises during the fifth or sixth year after substantial completion of the improvement to real property, said action shall be brought within two years after the date upon which said cause of action arises.

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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

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A New Hope - You Now May Have Coverage for Punitive Damages in Connecticut

February 15, 2018 — Stella Szantova Giordano – SDV Blog

On December 19, 2017, the Connecticut Supreme Court released its decision in Nationwide Mutual Ins. Co. v. Pasiak. The decision is significant for two reasons: 1) it clarifies the amount of proof an insurer needs to determine whether an exclusion to coverage applies; and 2) it found that where an insurance policy expressly provides coverage for an intentional act such as false imprisonment, common-law punitive damages are also covered.

Underlying action

The underlying action proves that real life is often stranger than fiction. Ms. S worked as an office help for a construction company owned by Mr. P, which operated out of his home. Ms. S was working alone in the home office, when an armed, masked intruder entered the office, tied her hands, gagged and blindfolded her and, pointing a gun to her head, threatened to kill her family if she did not give him the combination to a safe in the home. As this was happening, Mr. P entered the office, unmasked the intruder, and discovered it was his lifelong friend. After Ms. S was untied, she asked to leave, but Mr. P told her to stay. She was not allowed to leave for several hours as Mr. P made her accompany him to an errand. Ms. S sued Mr. P for false imprisonment, among other things. The trial court awarded her compensatory and punitive damages. Insurance coverage for the underlying judgment is at the heart of the Pasiak case.

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Reprinted courtesy of Stella Szantova Giordano, Saxe Doernberger & Vita, P.C.
Ms. Szantova Giordano may be contacted at ssg@sdvlaw.com

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