Fairfield Connecticut Building Expert Directory

When “Substantially Similar” Means “Fundamentally Identical”: Delaware Court Enforces Related Claim Provision to Deny D&O Coverage for Securities Class Action

August 10, 2021 — Geoffrey B. Fehling, Lawrence J. Bracken II & Lorelie S. Masters - Hunton Andrews Kurth
A company faces two class action lawsuits—filed by different plaintiffs, complaining of different allegedly wrongful conduct, asserting different causes of action subject to different burdens of proof, and seeking different relief based on different time periods for the alleged harm. Those facts suggest the suits are not “fundamentally identical,” but that is what a Delaware Superior Court recently concluded in barring coverage for a policyholder seeking to recover for a suit the court deemed “related” to an earlier lawsuit first made outside the policy’s coverage period. First Solar Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., No. N20C-10-156 MMJ CCLD (Del. Super. Ct. June 23, 2021). The decision, which is not on all fours with some of the authority upon which it relies, underscores the inherent unpredictability of “related” claim disputes and need for careful analysis of the policy language against the factual and legal bases of the underlying claims. Underlying Shareholder Class Actions and D&O Claims Shareholders of solar panel manufacturer First Solar sued the company and its directors and officers in a class action lawsuit (the “Smilovits Action”) for the class period April 2008 to February 2012. The Smilovits Action asserted federal securities violations arising from First Solar’s alleged misrepresentations about the company’s business strategies, product design, financial strength, and ability to offer solar electricity at comparable rates to conventional energy producers (i.e., achieving “grid parity”), artificially inflated stock price, insider trading, manipulation of solar power metrics, and violations of GAAP accounting standards. First Solar submitted a claim to its D&O insurer, National Union, which provided coverage for the Smilovits Action and exhausted the policy. Reprinted courtesy of Geoffrey B. Fehling, Hunton Andrews Kurth, Lawrence J. Bracken II, Hunton Andrews Kurth and Lorelie S. Masters, Hunton Andrews Kurth Mr. Fehling may be contacted at gfehling@HuntonAK.com Mr. Bracken may be contacted at lbracken@HuntonAK.com Ms. Masters may be contacted at lmasters@HuntonAK.com Read the court decision
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Insurer Not Entitled to Summary Judgment on Water Damage Claims

January 22, 2014 — Tred R. Eyerly – Insurance Law Hawaii
Issues of fact surrounding the applicability of various exclusions prevented the insurer from securing summary judgment on claims for water damage. Babai v. Allstate Ins. Co., 2013 U.S. Dist. LEXIS 175336 (W.D. Wash. Dec. 13, 2013). The insured noticed water damage to various areas of her home during remodeling. Allstate denied the claim because the loss was "not sudden and accidental," but rather progressive. Allstate cited the policy provision for "wear and tear, aging, . . . deterioration," etc., to exclude coverage. Plaintiff filed suit and Allstate moved for summary judgment. First, Allstate argued that construction defects were excluded from coverage based upon the exclusion for "latent defects." "Latent defects" were those that would not be discovered by a reasonable person. There was no evidence that the water damage was readily discoverable, so Allstate's argument failed. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

U.S. Department of Justice Settles against Days Inn

February 18, 2015 — Beverley BevenFlorez-CDJ STAFF
According to a press release on the Pacific ADA Center website, the Department of Justice (DOJ) reached a settlement with Sairam Enterprises, Inc., the owner of the Tulsa, Oklahoma Days Inn. The DOJ alleged that Sairam violated the Americans with Disabilities Act (ADA) when it denied a room to a veteran and his family because of the veteran’s service dog. Under the settlement, “Sairam will pay $5,000 to the family and will provide its employees with training regarding the ADA and the protections it provides to guests with service animals; it will also post signs and other announcements at its hotel stating its willingness to lodge travelers with service animals.” Read the court decision
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Don MacGregor of Bert L. Howe & Associates Awarded Silver Star Award at WCC Construction Defect Seminar

May 24, 2018 — CDJ STAFF
The staff of the Construction Defect Journal would like to extend their congratulations to Don MacGregor of Bert L. Howe & Associates, Inc., in recognition of his receipt of the Silver Star Award as “Best Expert” at the 25th Anniversary of the West Coast Casualty Construction Defect Seminar, hosted at the Disneyland Resort Hotel, in Anaheim CA. Recipients of the Silver Star Awards were nominated and voted on by their peers, colleagues, and the Construction Defect Community at large, as represented by the 25,000 members who received emails on the subject. Along with “Best Expert,” recognition was also given to the best judge, mediator, plaintiff attorney, developer attorney, subcontractor attorney, coverage counsel, and insurance claims professional. Awards were handed out last Thursday during a special ceremony at this year’s Seminar. To Don, and all the worthy awardees, congratulations again! Read the court decision
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BHA Attending the Construction Law Conference in San Antonio, Texas

February 24, 2016 — CDJ STAFF
Bert L. Howe & Associates, Inc. (BHA), will once again be joining with the State Bar of Texas, Construction Law Section as a sponsor and exhibit at the event on March 3 & 4, 2016, and is excited to announce that they will be sponsoring a raffle for a $100 Outdoor World gift card to be given away at the conference. Just stop by the BHA booth, and drop your card in the bowl for a chance to win. With offices in San Antonio and Houston, BHA offers the experience of over 20 years of service to carriers, defense counsel, and insurance professionals as designated experts in over 5,500 cases. BHA’s staff encompasses a broad range of licensed and credentialed experts in the areas of general contracting and specialty trades, as well as architects, civil and structural engineers, and has provided services on behalf of developers, general contractors and subcontractors across the state of Texas. BHA’s experience covers the full range of construction defect litigation, including single and multi-family residential properties (including high-rise), institutional buildings (schools, hospitals and government), commercial, and industrial claims. BHA also specializes in coverage, exposure, and delay claim analysis. Download the seminar brochure and register... Read the court decision
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Here's Proof Homebuilders are Betting on a Pickup in the Housing Market

April 15, 2015 — Victoria Stilwell – Bloomberg
Homebuilders have caught spring fever. Confidence among U.S. builders, measured by the National Association of Home Builders/Wells Fargo sentiment gauge, increased in April for the first time in five months. The group's measure of the sales outlook for the next six months climbed to the highest level since December, while a gauge of prospective buyer traffic also rose. With the housing market posting only middling progress in recent months, the fact that construction companies are optimistic is a good sign, especially heading into the crucial spring-selling season. The period usually starts in mid-February, with deals picking up the following months as the weather warms. What's more encouraging, though, is that builders seem to be putting money where their mouths are. Read the court decision
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Reprinted courtesy of Victoria Stilwell, Bloomberg

Key Legal Considerations for Modular Construction Contracts

April 19, 2021 — Frederick E. Hedberg - Construction Executive
Modular construction is literally on the rise. It is rapidly displacing traditional stick-built construction for new commercial, industrial and residential buildings. Over the past decade, an increasing number of health care, education facilities and apartment buildings have been built using modular construction. As the need for housing, and especially affordable housing, has grown as a result of the COVID-19 pandemic, modular construction is becoming increasingly popular. Recently, the Canadian government, through the Canadian Mortgage Housing Corporation, launched a “Rapid Housing Initiative,” a $1 billion program utilizing only modular construction to rapidly construct affordable housing for its citizens. Similarly, the city of Toronto (which last year approved a plan to build 250 modular homes in response to homelessness) plans to build 1,000 modular homes by 2030. The pandemic also has resulted in an urgent demand for modules for medical facilities and schools. Modular construction allows contractors to build “leaner” and “greener” buildings while increasing quality control and improving site safety and potentially saving valuable time and money. Reprinted courtesy of Frederick E. Hedberg, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Hedberg may be contacted at fhedberg@rc.com

Is Arbitration Always the Answer?

April 20, 2016 — Christopher G. Hill – Construction Law Musings
After a long (for me) hiatus due to Spring Break with my wonderful family followed by a crazy last two weeks for both personal and business reasons, I’m back and ready to muse again. This week’s “musings” concern a topic that arises often in construction contracts and construction dispute resolution. The topic? Arbitration. Why does this come up often? Because in many form contracts such as the AIA documents, as well as in many construction contracts that are more specifically tailored, mandatory arbitration is at least a choice if not the only method of dispute resolution. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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