FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Third Circuit Holds That Duty to Indemnify "Follows" Duty to Defend

December 27, 2021 — Jeffrey J. Vita - Saxe Doernberger & Vita, P.C.
In a win for policyholders, the Third Circuit Court of Appeals recently affirmed a District Court’s 2018 ruling, which held that the duty to indemnify follows the duty to defend where a settlement precludes a determination on the facts of the case relative to liability and apportionment. In Liberty Mutual Insurance Co. v. Penn National Mutual Casualty Insurance Co.,1 a large concrete panel collapsed and killed a construction worker at a construction site in New Kensington, Pennsylvania. Cost Company (“Cost”), Liberty Mutual’s insured, was a masonry subcontractor on the project and had further subcontracted with Pittsburgh Flexicore Co. (“Flexicore”), Penn National’s insured, for the concrete panels. Cost’s subcontract agreement required Flexicore to name Cost as an additional insured under its general liability policy issued by Penn National. When the construction worker’s widow filed a wrongful death lawsuit against Cost and Flexicore, Cost demanded that Penn National defend and indemnify it as an additional insured under the policy. Penn National refused, arguing that any additional insured status had terminated at the conclusion of Flexicore’s work for Cost. As a result, Liberty Mutual defended Cost in the lawsuit, which was ultimately settled. Read the court decision
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Reprinted courtesy of Jeffrey J. Vita, Saxe Doernberger & Vita, P.C.
Mr. Vita may be contacted at JVita@sdvlaw.com

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Federal Courts Reject Insurers’ Attempts to Recoup Defense Costs Expended Under Reservation of Rights

April 11, 2022 — Anthony L. Miscioscia & Margo Meta - White and Williams
In situations where there is a dispute over a duty to defend, an insurer may provide a defense to its insured, subject to a reservation of rights, to not only deny coverage for a defense, but also to file a declaratory judgment action and recoup defense costs in the event it is determined there is no duty to defend. But are defense costs recoupable? Last week, federal trial courts in Georgia and Pennsylvania answered this question with a resounding “no”. In Chemical Equipment Labs, Inc. v. Travelers Property Casualty Company of America, Case No. 19-3441, 2022 U.S. Dist. LEXIS 61298 (E.D.Pa. Mar. 31, 2022), the United States District Court for the Eastern District of Pennsylvania was called to determine whether Travelers Property Casualty Company of America (Travelers) was entitled to reimbursement of defense costs after it was determined that it had no duty to defend its insured in an arbitration for breach of a charter agreement. The Travelers’ policies did not contain an express reimbursement provision. The court found that Travelers was not entitled to reimbursement because under Pennsylvania law, “[r]eimbursement of defense costs requires an express provision in the written insurance contract.” Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Margo Meta, White and Williams Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Ms. Meta may be contacted at metam@whiteandwilliams.com Read the court decision
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The Credibility of Your Expert (Including Your Delay Expert) Matters in Construction Disputes

October 03, 2022 — David Adelstein - Florida Construction Legal Updates
Here is a quote from a judge in an order after the bench trial of a complex construction dispute between a prime contractor and subcontractor on a federal project:

The evidence received in this case demonstrates the dynamic nature of complicated construction projects. At every step, the details matter, and coordination and cooperation among the companies tasked with performing the job is essential. Thankfully, as even this case shows, most disagreements that arise as projects evolve are handled during construction, far away from a courthouse, by the professionals who know best how to achieve the ultimate goal of a completed project.

U.S. f/u/b/o McKenney’s, Inc. v. Leebcor Services, LLC, 2022 WL 3549980, *1 (E.D. Va. 2022).

This is a true statement. A statement that parties should remember as they navigate the nuances of a complicated construction project and dispute. The facts of the case, however, would hardly be construed as a win for either party. Something else for parties to consider as they navigate the nuances of a complicated construction project and dispute. 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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Ohio Supreme Court Case to Decide Whether or Not to Expand Insurance Coverage Under GC’s CGL Insurance Policies

August 14, 2018 — David Suggs – Bert L. Howe & Associates, Inc.
According to W. Matthew Bryant of Saul Ewing Arnstein & Lehr LLP, the Ohio Supreme Court will be deciding whether or not a general contractor's commercial general liability ("CGL") insurance policy may provide coverage for damage caused by a subcontractor's defective construction work. Bryant explained the status quo in Ohio: “Since 2012, Ohio has followed the rule that a CGL policy would not cover damage caused by a contractor to the contractor's own work.” That could change depending on how the Ohio Supreme Court rules in an upcoming case: “The Ohio Supreme Court will decide whether to affirm or overturn Ohio Northern University v. Charles Construction Services, Inc., 77 N.E.3d 538 (Ohio Ct. App. 2017) ("ONU"), an Ohio Court of Appeals decision holding that CGL coverage may exist for property damage caused by faulty work performed by the subcontractor of an insured general contractor.” Read the court decision
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Floating Cities May Be One Answer to Rising Sea Levels

August 07, 2022 — Adam Minter - Bloomberg
Thanks to climate change, sea levels are lapping up against coastal cities and communities. In an ideal world, efforts would have already been made to slow or stop the impact. The reality is that climate mitigation remains difficult, and the 40% of humanity living within 60 miles of a coast will eventually need to adapt. One option is to move inland. A less obvious option is to move offshore, onto a floating city. It sounds like a fantasy, but it could real, later if not sooner. Last year, Busan, South Korea's second-largest city, signed on to host a prototype for the world's first floating city. In April, Oceanix Inc., the company leading the project, unveiled a blueprint. Representatives of SAMOO Architects & Engineers Co., one of the floating city's designers and a subsidiary of the gigantic Samsung Electronics Co., estimate that construction could start in a "year or two," though they concede the schedule might be aggressive. “It's inevitable,” Itai Madamombe, co-founder of Oceanix, told me over tea in Busan. “We will get to a point one day where a lot of people are living on water.” Read the court decision
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Reprinted courtesy of Adam Minter, Bloomberg

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Lewis Brisbois Promotes 35 to Partnership

March 15, 2021 — Lewis Brisbois
Lewis Brisbois is proud to announce the promotion of 35 of its associates to partner. With these promotions, Lewis Brisbois’ total partnership comes to 933 across its 53 offices. The diverse class of newly promoted attorneys includes 15 women, which brings the total percentage of female partners at Lewis Brisbois to 33%. Los Angeles Managing Partner Jana I. Lubert expressed her excitement about the recent promotions, stating, “On behalf of the Management Committee, I congratulate these outstanding attorneys on their achievement. They have demonstrated an exceptional level of dedication to Lewis Brisbois and to our clients, especially during this difficult past year. I am particularly proud of the diversity that exists across this group.” Similarly, San Bernardino and Chief Diversity Partner Rima M. Badawiya shared her enthusiasm over the diversity of the new partners, explaining, “This group of exceptional attorneys, who have been promoted based upon their extraordinary performance, represents the diversity that exists throughout Lewis Brisbois and our commitment to advancing those who achieve at the highest level.” Read the court decision
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Reprinted courtesy of Lewis Brisbois

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Sales Pickup Shows Healing U.S. Real Estate Market

June 26, 2014 — Shobhana Chandra – Bloomberg
Americans snapped up previously owned homes in May in the biggest monthly sales gain in almost three years, a sign the residential real estate market is regaining its footing after a stumble early in the year. Purchases climbed 4.9 percent, the biggest increase since August 2011, to a 4.89 million annualized rate, figures from the National Association of Realtors showed today in Washington. The level was the strongest since October. The report also showed price appreciation is slowing as more homes become available. A more balanced market, including a wider selection of properties, smaller price gains and still-low borrowing costs, may encourage more Americans to buy as employment strengthens. Improving demand will probably spur a pickup in construction, and builders such as Hovnanian Enterprises Inc. (HOV) are optimistic. Read the court decision
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Reprinted courtesy of Shobhana Chandra, Bloomberg
Ms. Chandra may be contacted at schandra1@bloomberg.net

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Deescalating Hyper Escalation

July 05, 2023 — Paul F. Williamson - Construction Executive
Recent years have seen the construction industry get hit by a perfect storm of rising costs, workforce shortages, delivery delays, supply-chain issues, inflation, interest-rate hikes and materials price escalation. The cost of construction has become more expensive, leaving all parties to grapple with the sufficiency of their risk-management strategies and the ramifications of contracts that are ill-equipped to deal with unprecedented cost increases. Of particular concern to industry participants are the volatile price fluctuations that construction materials have undergone and how to appropriately mitigate the risks they present. Although owners, general contractors and subcontractors may seek to mitigate future risks, many who are party to an existing contract all too often must scramble to divine how to absorb significantly more financial risk than they expected pre-pandemic. Contracts that were bid and entered into prior to the pandemic may have seen, in some instances, double- and triple-digit percent increases in prices due to hyper escalation, with little recourse to address such situations. While parties to private contracts are free to mitigate their risk through contract negotiations, parties to federal or state public procurements are somewhat more constrained. Reprinted courtesy of Paul F. Williamson, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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