FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Comply with your Insurance Policy's Conditions Precedent (Post-Loss Obligations)

May 31, 2021 — David Adelstein - Florida Construction Legal Updates
I am of the opinion that if your property insurer requests a sworn proof of loss, furnish one with the assistance of counsel (preferably). Ignoring the insurer’s request or refusing to comply with insurer’s request is NOT value-added; it is simply placing you at a disadvantage based on the insurer’s argument that you, as the insured, materially breached the policy. I generally find no value having to confront this expected argument. Instead, I find value making an effort to comply with post-loss obligations including the insurer’s request to submit a sworn proof of loss. Working with counsel can help you comply with post-loss obligations (conditions precedent) while not weakening the value or merits of your claim. By way of example, in Edwards v. Safepoint Ins. Co., 46 Fla. L. Weekly D1086a (Fla. 4th DCA 2021), the insured did not provide its property insurer with the requested sworn proof of loss. The insurer moved for summary judgment that the insured’s failure to submit the sworn proof of loss was a material breach of the policy that rendered the policy ineffective. The trial court agreed and granted summary judgment. The Fourth District Court of Appeal affirmed explaining “[a] total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.” Edwards, supra, quoting Haiman v. Federal Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001). Read the court decision
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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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Construction Defect Specialist Joins Kansas City Firm

January 13, 2014 — CDJ STAFF
David Schatz, whose practice specializes in construction disputes and defects, has joined the Kansas City, Missouri firm Spencer Fane Britt & Brown LLP in their litigation practice group. Mr. Schatz’s expertise also includes banking and finance, banking litigation, commercial disputes, insurance, surety, employment, contract claims, and personal injury. Pat Whalen, Chairman of Spencer Fane Britt & Brown, said that Schatz “brings great experience across a range of industries, but many of us in Kansas City are particularly pleased by his construction and general litigation credentials, which will fit will with the resources we’re building in those areas.” Read the court decision
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Miller Law Firm Helped HOA Recover for Construction Defects without Filing a Lawsuit

July 16, 2014 — Beverley BevenFlorez-CDJ STAFF
According to a press release published on the PR Newswire, The Miller Law Firm “recovered $910,000 for the 1635 California Owners' Association for construction defects without ever filing a complaint.” William Nagle, Special Master & Mediator, facilitated the settlement “a year after putting the builder on notice under SB 800, California’s Right to Repair Law.” “Independent forensic expert inspections revealed building standard violations ranging from improperly installed gutters resulting in water intrusion in the units project wide, active leaks, standing water and inadequate gutters resulting in staining and efflorescence on the garage walls, balcony, and tile grout, discoloration and extensive cracking in the stucco project wide, inadequate weather stripping with evidence of condensation staining at windows, window frames and adjacent paint, inadequate ventilation, and ADA violations including loose glass guardrails and in regards to accessible rooftop common areas,” according to the press release. “This case settled prior to any formal mediation and I credit the diligence of both the Association and builder counsel,” Nagle stated. “Tom Miller is one of the most knowledgeable and respected plaintiffs' lawyers in the construction defect area. And I compliment both counsel on their preparation and cost-effective handling of the case in reaching a fair and reasonable result for their respective clients." Read the court decision
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Illinois Court Determines Duty to Defend Construction Defect Claims

March 22, 2021 — Tred R. Eyerly - Insurance Law Hawaii
Given the underlying allegations of damage to personal property, the court determined the insurer had a duty to defend. Certain Underwriters at Lloyd's London v. Metropolitan Builders, Inc., 2019 Ill. App. LEXIS 979 (Ill. Ct. App. Dec. 18, 2019). Metropolitan was hired as the general contractor for construction, renovation and demolition at contiguous properties - the 1907 Property, 1909 Property, and 1911 Property. During construction activities, the structures on the 1907 Property and 1909 Property collapsed. The existing structures on the properties were later deemed unsafe and were demolished by the city of Chicago. AIG insured the owner of the buildings and paid over $1.8 million for repairs and associated expenses arising from the collapse. AIG then invoked its rights of subrogation against Metropolitan by filing suit. Metropolitan tendered the suit to its insurer, Lloyd's, who denied coverage and filed for a declaratory judgment. The trial court found the underlying complaint alleged property damage, but not an occurrence. Summary judgment was awarded to Lloyd's. 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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Benefits and Pitfalls of Partnerships Between Companies

December 21, 2016 — Aarni Heiskanen – AEC Business
To bring innovations to the market, companies almost always need partnerships. Partnerships can offer scalability, productivity, and open up new markets. However, partnerships are not easy to establish and manage. The benefits of partnering Construction companies have always done joint ventures. The reason has been to simply be able to bid for and deliver a project that would be too big for one company at that specific moment. Partnering allows you to become larger than you are and to get work that would otherwise be out of your reach. It also lets you spread the risk in a demanding project among the members. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aarni@aepartners.fi

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Insurer Incorrectly Relies Upon "Your Work" Exclusion to Deny Coverage

June 10, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventh Circuit reversed the district court's determination that there was no coverage based upon the policy's "your work" exclusion. Southern-Owners Ins. Co. v. Mac Contractors of Fla, LLC, 2019 U.S. App. LEXIS 10689 (11th Cir. April 11, 2019). Mac Contractors contracted with the homeowners to custom build their home. After construction began, Mac left the site before completing the project and before the issuance of a certificate of occupancy. The homeowners sued, alleged damage to wood floors and the metal roof. Southern-Owners originally agreed to defend under the CGL policy, but later withdrew the defense and filed this action for declaratory relief. The parties cross-filed motions for summary judgment. Southern-Owners argued that the "your work" exclusion applied to bar coverage. The "your work" exclusion barred coverage for "'property damage' to 'your work' arising out of it or any part of it and included in the 'products' completed operations hazard.'" The "products' completed operations hazard" included all "'property damage' occurring away from premises you own or rent and arising out of . . . 'your work' except . . . (1) products that are still in your physical possession; or (2) work that has not yet been completed or abandoned." 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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“But I didn’t know what I was signing….”

May 30, 2018 — Bobby Kethcart - Snell & Wilmer Real Estate Litigation Blog
In real estate cases—which frequently involve long purchase agreements, loan documents, personal guarantees, deeds of trust, etc.—we’ve likely all had a client or opposing party who trots out the line that they didn’t know what they were signing, or they didn’t read or understand what they were signing, so the document shouldn’t be enforced according to its terms. Most of us instinctively believe the claim is a loser: You signed the document, you’re bound by it. But is this actually right? Well, we did some digging. Here is the Arizona law on the subject: Nationwide Resources Corp. v. Massabni, 134 Ariz. 557, 658 P.2d 210 (App. 1982):

“A mistake of only one of the parties to a contract in the expression of his agreement or as to the subject matter does not affect its binding force and ordinarily affords no ground for its avoidance, or for relief, even in equity.” “A manifestation of acceptance to the offeror or his agent forms a contract regardless of the intent of the acceptor.”

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Reprinted courtesy of Bobby Kethcart, Snell & Wilmer
Mr. Kethcart may be contacted at rkethcart@swlaw.com

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New Case Law Update: Mountain Valleys, Chevron Deference and a Long-Awaited Resolution on the Sacketts’ Small Lot

June 12, 2023 — Anthony B. Cavender - Gravel2Gavel
This is a brief roundup of recent federal court environmental and regulatory law decisions from the federal courts over the past few months, including the much anticipated ruling in Sackett, et ux., v, Environmental Protection Agency. THE U.S. SUPREME COURT Sackett, et ux., v, Environmental Protection Agency Last year, the Supreme Court issued a significant decision curtailing some of the EPA’s regulatory powers in the Clean Air Act in West Virginia v. Environmental Protection Agency. On May 25, 2023, the Court limited EPA’s—and the U.S. Army Corps of Engineers’ authority—under the Clean Water Act. This, too, is a major environmental ruling. The Court held that the EPA could not classify the wetlands located on the Idaho property of Michael and Chantell Sackett as “Waters of the United States” on the basis of the “significant nexus” test devised by Justice Kennedy in his separate opinion in the 2005 case of Rapanos v. United States. Accordingly, the Court unanimously held that their property was not subject to the EPA’s or the U.S. Army Corps of Engineers’ permitting and enforcement power. In 2004, the Sacketts purchased a small lot near Priest Lake in Bonner County, Idaho, on which to build a home. As related by Justice Alito, once they began to fill in their property with dirt and rocks, they were notified by EPA that their backfilling operation violated the Clean Water Act (CWA) because they were affecting protected wetlands. The Sacketts challenged this action, thus beginning a long legal battle with EPA and the federal government. In 2021, the U.S. Court of Appeals for the Ninth Circuit upheld the federal government’s regulatory authority over these wetlands, holding that the CWA covers “adjacent” wetlands having a significant nexus to traditional navigable waters. The Supreme Court decided that this case was suitable for determining whether the Sackett’s wetlands are “waters of the United States” and thus subject to the permitting and regulatory enforcement powers of the EPA and the Corps of Engineers. 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

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