Fairfield Connecticut Building Expert Directory

Risk Transfer: The Souffle of Construction Litigation

December 13, 2022 — Alexa Stephenson & Ivette Kincaid - Kahana Feld
Who does not love a good souffle?! Enthusiasts will know that a great souffle is not something you can obtain quickly. Rather, it is common in restaurants to order the souffle as dessert at the beginning of the meal because it takes an hour to bake. Risk transfer – like a good souffle – also requires planning, preparation, and the right ingredients. In construction litigation, attorneys are often not retained until after the project has been completed for several years as the dispute between the homeowner and the general contractor or developer took time to escalate to formal litigation. A significant part of defense counsel’s legal analysis involves assessing and evaluating risk transfer opportunities. For example, in the case of a general contractor or developer who did not self-perform the construction work but instead retained subcontractors to do so, counsel will assess if risk can be transferred from the general contractor or developer to the subcontractors who performed the work which the homeowners allege is defective. In other words, a developer or general contractor can reduce their risk (i.e. liability and money owed) by transferring said risk (i.e. pointing the finger at) to a third party. Sounds easy, right? Unfortunately, just like the souffle making process, it is easier said than done. This task can be exceedingly difficult in the absence of contracts that contain strong indemnity and insurance provisions – the essential ingredients to effect risk transfer. Worry not! We have provided “baking” instructions for you below to help you get a great risk transfer souffle time and again. Reprinted courtesy of Alexa Stephenson, Kahana Feld and Ivette Kincaid, Kahana Feld Ms. Stephenson may be contacted at astephenson@kahanafeld.com Ms. Kincaid may be contacted at ikincaid@kahanafeld.com Read the court decision
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Insured's Lack of Knowledge of Tenant's Growing Marijuana Means Coverage Afforded for Fire Loss

August 17, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The California Court of Appeals reversed the trial court's grant of summary judgment to the insurer regarding a claim for fire loss. Mosley v. Pacific Sec. Ins, Co., 2020 Cal. App LEXIS (Cal. Ct. App, May 26, 2020). The Mosleys rented their property to Pedro Lopez. Six months later, the property was damaged by fire. Lopez had tapped a main power line into the attic to power his energy-intensive marijuana growing operation. The illegal power line caused the fire. Pacific Specialty Insurance Company (PSIC) insured the property under an HO-3 Standard Homeowners policy. Paragraph E of the policy provided,

The growing of plants; or
The manufacture, production, operation or processing of chemical, biological, animal or plant materials.

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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Fourth Circuit Holds that a Municipal Stormwater Management Assessment is a Fee and Not a Prohibited Railroad Tax

April 22, 2019 — Anthony B. Cavender - Gravel2Gavel
On February 15, the U.S. Court of Appeals for the Fourth Circuit decided Norfolk Southern Railway Co. v. City of Roanoke, et al.; the Chesapeake Bay Foundation was an Intervenor-Defendant. The Fourth Circuit held that a large stormwater management fee (stated to be $417,000.00 for the year 2017) levied by the City of Roanoke against the railroad to assist in the financing of the City’s permitted municipal stormwater management system was a permissible fee and not a discriminatory tax placed on the railroad. The Railroad Revitalization and Regulatory Reform Act of 1976 specifically provides that states and localities may not impose any tax that discriminates against a rail carrier, 49 U.S.C. § 11501. Accordingly, the issue confronting the Fourth Circuit was whether the assessment was fee and not a tax. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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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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

Going Digital in 2019: The Latest Technology for a Bright Future in Construction

February 18, 2019 — Jim Romeo - Construction Executive
The spectrum of technology available to today’s contractors is wide and deep. This techno-ecosystem will change just about every operational tick and tock needed to build world-class projects—from where and how people work to what equipment they use and how they record payments. “Generally speaking, the use of technology in construction is surging, particularly in the past three to five years,” says Chris Amato, principal and national advisory leader for the Chicago-based management consultancy Grant Thornton. “It’s becoming the cost of doing business; every player, at some point or another, is going to need to embrace it to some degree. The key questions are where to start, where to invest and how to minimize risk.” Reprinted courtesy of Jim Romeo, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Judge Sentences Roofing Contractor Owner in Florida PPP Fraud Case

July 25, 2021 — Richard Korman - Engineering News-Record
A federal judge in Fort Myers, Fla., sentenced Casey David Crowther, 35, the owner of a successful Florida roofing contracting company, to 37 months in prison for using fictitious employee lists to obtain a $2.7-million federal pandemic-aid loan and then purchasing a $689,000 boat with the funds. Reprinted courtesy of Richard Korman, Engineering News-Record Mr. Korman may be contacted at kormanr@enr.com Read the full story... Read the court decision
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New York City Council’s Carbon Emissions Regulation Opposed by Real Estate Board

July 01, 2019 — Kristen E. Andreoli - White and William's Taking Care of Business Blog
On April 10, 2019, the New York City Council adopted Intro No. 1253 – the largest effort in a series of bills known as the Climate Mobilization Act. Intro No. 1253 enacts new regulations to reduce the city’s current largest source of carbon emissions – the operation of buildings. Jared Brey, in his April 25, 2019 article in U.S. News and World Report, “How an Evolving Movement Pushed NYC to Address the Climate Crisis,” states that “[i]n the city, around 70% of carbon emissions are produced by buildings, and around half of all building emissions are produced by just 2% of structures larger than 25,000 square feet that are covered by the bill.” The level of development, population density and relative economic power of a city such as New York have made this bill particularly interesting to other jurisdictions around the globe which may be considering their own similar legislation. In his article, Brey cites David Miller, a former mayor of Toronto and the North American regional director for C40, a group of cities coordinating strategies to meet the goals of the Paris Agreement:

“I think what New York has done is globally significant … It’s really a huge step forward, using the city’s powers and influence to directly address a huge source of greenhouse gas emissions without waiting for the national government or the international community to act.”

Several other jurisdictions have already begun to approach this issue, generally either by passing bills or creating task forces to further investigate how to meet stated emissions reduction goals. In 2018, Governor Jerry Brown of California signed an executive order with a stated goal of net-zero carbon emissions within the state by the year 2045. The California State Assembly subsequently passed a bill creating a task force to investigate the potential to reduce the emission of greenhouse gasses by both commercial and residential buildings by 2030, although their plan is not due until January 1, 2021. The city of San Jose has implemented new building standards for all new residential buildings to be net-carbon neutral by 2020, and all new commercial buildings must be so by 2030. Read the court decision
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Reprinted courtesy of Kristen E. Andreoli, White and Williams LLP
Ms. Andreoli may be contacted at andreolik@whiteandwilliams.com

FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES