Fairfield Connecticut Building Expert Directory

Ongoing Operations Exclusion Bars Coverage

December 09, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The insurer denied the insured contractor's claim seeking a defense for faulty workmanship based upon the ongoing operations exclusion. PJR Constr. of N.J. v. Valley Forge Ins. Co., 2019 U.S. Dist. LEXIS 127973 (D. N. J. July 31, 2019). PJR Construction was the general contractor to build a swim club and pavilion building for Cambridge Real Property, LLC. PJR began construction on May 29, 2012, and was to complete the construction by March 1, 2013. The project took much longer than anticipated. PJR was denied access to the site on November 13, 2014. Cambridge contended PJR tolerated shoddy workmanship and breached the terms of the contract documents. Cambridge estimated that the project was between 55% and 74.3% complete. PJR and Cambridge went to arbitration. PJR sought a defense from the insurers. Coverage was denied based upon exclusions j (5) and j (6). Exclusion j (5), which the court referred to as the "Ongoing Operations Exclusion," provided the policy did not apply to,

Property Damage to . . . [t]hat particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the property damage arises out of those operations.

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

They Say Nothing Lasts Forever, but What If Decommissioning Does?

June 10, 2019 — Stella Pulman - Gravel2Gavel Construction & Real Estate Law Blog
The looming decommissioning liabilities of offshore energy producers have been a focus of the federal government in recent years. One recent case out of the U.S. Court of Federal Claims, Taylor Energy v. United States, highlights the tension between the federal government’s desire to maintain financial security for decommissioning activities, and that of an operator whose security is tied up indefinitely while the government awaits technological advances to allow for safe decommissioning. The case relates to a trust agreement between Taylor Energy and the United States, established to secure Taylor’s decommissioning liabilities for 28 wells in the Gulf of Mexico. Taylor completed certain decommissioning work for which it was reimbursed by the trust. However, with over $400 million remaining in the trust, Taylor and the Bureau of Safety and Environmental Enforcement (BSEE) concluded that the ecological benefits of further decommissioning would be outweighed by the ecological risks. But despite recognizing that the limitations of current technology made the environmental impacts of further decommissioning work unjustifiable, the BSEE declined to release Taylor from its decommissioning obligations and instead decided to await “changes in technology and a better understanding of the undersea environment.” Because Taylor’s decommissioning obligations remained in place, the U.S. refused to release the remaining funds in the trust. Taylor claimed that the United States should release the remaining funds in the trust because “decommissioning the remaining wells is not ‘currently technologically feasible.’” Taylor asserted that Louisiana law applied to the trust agreement, and that under Louisiana law every contract must be completed within an ascertainable term. By holding the trust funds until decommissioning was complete, Taylor argued that the government was essentially holding the funds in perpetuity given the technological infeasibility of completing decommissioning. Taylor also asserted that the agreement was premised on an impossibility (the full decommissioning of the wells), and/or a mutual mistake of the parties (that the wells could be decommissioned). Read the court decision
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Reprinted courtesy of Stella Pulman, Pillsbury
Ms. Pulman may be contacted at stella.pulman@pillsburylaw.com

US Civil Rights Tools Are Failing the Most Polluted Black Communities

February 05, 2024 — Manann Donoghoe & Andre Perry - Bloomberg
In 2022, the United Nations declared that access to a safe and healthy environment, free of pollutants and toxic waste, is a universal human right. The resolution provides a legal foundation for international challenges to environmental injustice; it should also provide an impetus for nations like the US to enforce their own environmental protections. Without more clearly defined rights, some of the greatest environmental injustices may continue to be mired in politics. Take the case of “Cancer Alley,” an 85-mile stretch along the Mississippi River in Louisiana where Black residents have long faced higher rates of death and morbidity due to polluted and toxic environments. For people of color living in the region, fresh air is certainly not a right; it is a privilege for others to experience. Reprinted courtesy of Manann Donoghoe, Bloomberg and Andre Perry, Bloomberg Read the court decision
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How Many New Home Starts are from Teardowns?

April 15, 2015 — Beverley BevenFlorez-CDJ STAFF
In a NAHB/Wells Fargo Housing Market Index survey, builders were asked “Of the homes you started in 2014, approximately what share were on a site where a previous structure, or evidence of a previous structure, was present before you started?” According to the NAHB, the surveyors reported that “[o]n average, weighted by starts, […] just under five percent of their starts were teardowns according to the survey’s criterion.” When compared to census data, it equates to 31,800 single-family teardown starts in 2014. Read the court decision
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Pennsylvania Considers Changes to Construction Code Review

November 06, 2013 — CDJ STAFF
Pennsylvania may soon change how it adopts changes to its implementation of the Uniform Construction Code, but it’s not clear which method will be adopted, as the Pennsylvania House and Senate have competing bills. In the Senate bill (SB1023), the only change would be that any changes to the Uniform Building Code made by the International Code Council would automatically become part of the Pennsylvania building code, unless rejected by a two-thirds vote of the Pennsylvania UCC Review and Advisory Council. Under current Pennsylvania law, changes are adopted only with a two-thirds approval of the RAC. The House bill (HB1209), separates the commercial code from the residential code. Under the House proposal, the RAC would reject changes to the commercial building code on a two-thirds vote, otherwise they would be adopted, but in the residential building code, changes would be rejected unless the RAC approved them by a two-thirds vote. Read the court decision
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A Court-Side Seat: Butterflies, Salt Marshes and Methane All Around

November 16, 2020 — Anthony B. Cavender - Gravel2Gavel
Our latest summary of some recent developments in the courts and the federal agencies includes a unique case involving salt marshes adjacent to San Francisco Bay. THE FEDERAL COURTS A Wolf Among the Butterflies On October 13, 2020, the U.S. Court of Appeals for the District of Columbia Circuit decided the case of North American Butterfly Association v. Chad Wolf, Acting Secretary of the Department of Homeland Security. The National Butterfly Center is a 100-acre wildlife sanctuary located in Texas along the border between the United States and Mexico, and in 2017, the DHS exerted control over a segment of the sanctuary to construct facilities to impede unauthorized entry into the United States. It was alleged that the government failed to provide advance notice to the sanctuary before it entered the sanctuary to build its facilities. The Association filed a lawsuit to halt these actions for several reasons, including constitutional claims and two federal environmental laws (NEPA and the Endangered Species Act), but the lower court dismissed the lawsuit because of the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). That law forecloses the applicability of these laws if the Secretary of DHS issues appropriate declaration. On appeal, the DC Circuit held, in a 2 to 1 decision, that the lawsuit should not have been dismissed. The plaintiffs had standing to file this lawsuit, but the jurisdiction stripping provisions of the IIRIRA, when invoked, required that the statutory claims be dismissed as well as a constitutional Fourth Amendment search and seizure claim. However, the plaintiff’s Fifth Amendment claim that the government’s actions violated their right to procedural due process must be reviewed. The Center was given no notice of the government’s claims and no opportunity to be heard before these actions were taken. The dissenting judge argued that the court was being asked to review a non-final decision, which it should not do. 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

Arizona Supreme Court Upholds Constitutionality of Provision Relating to Statutory Authority for Constructing and Operating Sports and Tourism Complexes

June 18, 2019 — Amanda Z. Weaver - Snell & Wilmer
In an opinion published February 25, 2019, the Arizona Supreme Court held that Maricopa County’s surcharge on car rental agencies to fund a stadium and other sports- and tourism-related projects did not violate either the dormant Commerce Clause of the United States Constitution or the anti-diversion provision of the Arizona Constitution, art. 9, § 14. Saban Rent-a-Car LLC v. Ariz. Dep’t of Revenue. In 2000, the Arizona Legislature created the Arizona Tourism and Sports Authority (the Authority) to build and/or operate a variety of sports-related facilities, including Major League Baseball spring training facilities, and youth and amateur sports and recreation centers. Taxes and surcharges, approved by voters, are the sole funding for the Authority’s construction projects, including the challenged surcharge in Maricopa County. This surcharge is based on the income from car rental companies leasing vehicles to customers for less than one year, and is the greater of $2.50 per rental or 3.25% of the company’s gross proceeds or income. A.R.S. § 5-839. The state treasurer deposits $2.50 per rental transaction into the Maricopa County Stadium District, as it has since 1991, and the remaining amount of the difference between $2.50 per transaction and 3.25% of the company’s gross income or proceeds is distributed to the Authority. Rental car companies often pass this surcharge on to their customers. Read the court decision
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Reprinted courtesy of Amanda Z. Weaver, Snell & Wilmer
Ms. Weaver may be contacted at aweaver@swlaw.com

Verdict In Favor Of Insured Homeowner Reversed For Improper Jury Instructions

October 23, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The appellate court reversed the jury verdict in favor of the homeowners based upon improper instructions purporting to impose a duty to adjust the claim and how to construe a contract. Citizens Prop. Ins. Corp. v Mendoza, 2018 Fla. App. LEXIS 9497 (Fla. Ct. App. July 5, 2018). The insureds incurred water damage to their home caused by a water heater leak. After a claim was filed, the insurer sent an adjuster to investigate the claim. The insurer denied the claim due to an exclusion for constant or repeated seepage or leakage. At trial, the insurer offered testimony that the leak was a continued and repeated seepage of water over a long period of time, which was excluded under the policy, and not a sudden and accidental discharge of water, which would have been covered. 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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