Fairfield Connecticut Building Expert Directory

Mississippi Supreme Court Addresses Earth Movement Exclusion

December 09, 2019 — Anthony Hatzilabrou - Traub Lieberman
Recently, the Mississippi Supreme Court held that structural damages to the foundation of an insured’s home came within the earth movement exclusion in a homeowner’s policy, notwithstanding a provision in the policy which provided coverage for water damage resulting “from accidental discharge or overflow of water … from within … [p]lumbing, heating, air condition or household appliance.” In Mississippi Farm Bureau Cas. Ins. Co. v. Smith, 264 So. 3d 737 (Miss. 2019), the appellee, Smith, filed a lawsuit against her homeowner's insurance company, Mississippi Farm Bureau Casualty Insurance Company (“Farm Bureau”) for its refusal to pay for repairs to the foundation of Smith’s home. Smith alleged that the refusal to pay for repairs amounted to breach of contract and asserted claims for bad faith and tortious breach of contract. In response, Farm Bureau filed a motion for summary judgment on the basis of the policy’s earth-movement exclusion, which provided that Farm Bureau “did not insure for loss caused directly or indirectly by…Earth Movement…[which] means…[a]ny other earth movement including earth sinking, rising or shifting... caused by or resulting from human or animal forces.” Smith filed a cross-motion for partial summary judgment on the basis that the earth-movement exclusion did not preclude coverage because her insurance policy also contained a clause expressly covering water damage. Read the court decision
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Reprinted courtesy of Anthony Hatzilabrou, Traub Lieberman
Mr. Hatzilabrou may be contacted at thatzilabrou@tlsslaw.com

Gut Feeling Does Not Disqualify Expert Opinion

July 06, 2011 — CDJ STAFF

The New Jersey Supreme Court issued a ruling in June on the case of Nevins v. Toll in which they reversed an earlier decision and remanded the case to a lower court for retrial. At issue in the case was the testimony of the plaintiff’s expert, J. Anthony Dowling. In depositions, Mr. Dowling said that his estimates for repair were based on a “gut feeling.” Dowling said he had “very little” experience in cost estimates for single-family homes. The defendants sought to bar Dowling’s testimony which was granted by the judge. Without an expert, Ms. Nevin’s case was dismissed.

Describing Dowling’s report as “far from a model of how an expert’s opinion in a construction case should be presented,” the court noted that Dowling is not a professional expert witness. However, the court did note that Dowling is a professional cost estimator. Despite Mr. Dowling using his “gut feeling” to construct his estimate, the New Jersey Supreme Court felt that whether his estimate is convincing is “a question for the jury.”

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Significant Ruling in PFAS Litigation Could Impact Insurance Coverage

October 10, 2022 — Sara C. Tilitz & Lynndon K. Groff - White and Williams LLP
Per- and poly-fluoroalkyl substances, commonly known as PFAS, have served as a key component in numerous industrial and consumer products for decades. These “forever chemicals,” which have been associated with environmental contamination and adverse health outcomes, have garnered steadily-growing attention from regulatory authorities, the plaintiffs’ bar, and, by extension, the insurance industry. The current “case to watch” regarding PFAS is the multidistrict litigation (“MDL”) in the United States District Court for the District of South Carolina, Judge Gergel presiding. The MDL is comprised of well over 2,000 cases brought by both individual plaintiffs and state and local governments arising out of the manufacturing and/or use of aqueous film forming foam, also known as AFFF. The use of AFFF, which was historically employed in firefighting operations, including those undertaken by the United States military, allegedly causes the release of two types of PFAS into the environment – PFOS and PFOA. On September 16, 2022, Judge Gergel denied a motion for partial summary judgment filed by defendant 3M Company and other AFFF defendant manufacturers on the government contractor immunity defense. Although not an insurance coverage decision, the ruling is significant in the context of PFAS litigation and could have insurance coverage implications. Reprinted courtesy of Sara C. Tilitz, White and Williams LLP and Lynndon K. Groff, White and Williams LLP Ms. Tilitz may be contacted at tilitzs@whiteandwilliams.com Mr. Groff may be contacted at groffl@whiteandwilliams.com Read the court decision
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Formal Request for Time Extension Not Always Required to Support Constructive Acceleration

April 25, 2022 — David Adelstein - Florida Construction Legal Updates
Does a constructive acceleration claim require the contractor to always request an extension of time which is then denied by the owner? While this is certainly the preference and the contractor should be requesting an extension of time as a matter of course for an excusable delay, the answer is NO! in certain circumstances. This is conveyed in the factually detailed case discussed below where a formal request for an extension of time was not required for the contractor to support its constructive acceleration claim. But first, what is constructive acceleration: Constructive acceleration “occurs when the government demands compliance with an original contract deadline, despite excusable delay by the contractor.” The Federal Circuit in Fraser defined the elements of constructive acceleration as follows: (1) that the contractor encountered a delay that is excusable under the contract; (2) that the contractor made a timely and sufficient request for an extension of the contract schedule; (3) that the government denied the contractor’s request for an extension or failed to act on it within a reasonable time; (4) that the government insisted on completion of the contract within a period shorter than the period to which the contractor would be entitled by taking into account the period of excusable delay, after which the contractor notified the government that it regarded the alleged order to accelerate as a constructive change in the contract; and (5) that the contractor was required to expend extra resources to compensate for the lost time and remain on schedule. Nova Group/Tutor-Saliba v. U.S., 2022 WL 815826, *42 (Fed.Cl. 2022) quoting Fraser Constr. Co. v. U.S., 384 F.3d 1354, 1361 (Fed. Cir. 2004) (internal citations omitted). 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

The Brooklyn Condominium That’s Reinventing Outdoor Common Space

October 24, 2022 — Alexandra Lange - Bloomberg
Courtyard apartments have a long history in the US, particularly in temperate climes, where shaded outdoor corridors and centralized playspaces can be year-round amenities. New York City, however, has only selectively embraced this approach, with private yards and public parks taking up the slack. A new 18-unit condominium, 450 Warren — one of four planned Brooklyn collaborations between architects SO-IL and developers Tankhouse — aims to change that relationship, while also twisting the idea of common outdoor space into something that gets used. Rather than creating one large courtyard, with the open space protected from the street by an L-shaped plan, SO-IL chopped up the outdoor amenities, betting that smaller, more carefully shaped and planted terraces would be more popular than a large undifferentiated expanse of grass. The building’s plan reads as three towers connected by curvy concrete walkways. The building sits across the street from the Gowanus Houses, a public housing development, completed in 1949 with towers of up to 14 stories. The area was rezoned for denser mixed-use development in 2021, but when SO-IL and Tankhouse were developing the plans, regulations limited building heights to a maximum of five stories. Read the court decision
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Reprinted courtesy of Alexandra Lange, Bloomberg

The Firm Hits the 9 Year Mark!

July 22, 2019 — Christopher G. Hill - Construction Law Musings
It was 9 years ago today that I announced the formation and start of my solo practice, The Law Office of Christopher G. Hill, PC. Back then, my children were in elementary and middle school. Now I have two college students, one at Appalachian State University (with a budding photography talent that has provided some photos for this blog (including that on this post)) and the other at West Virginia University, and a rising high school junior. In just the past year I began a tenure on the Section Council Virginia Bar Association Construction and Public Contracts Law section and chair of its Legislative Committee where I assisted in the drafting of the change in the mechanic’s lien form that takes effect today.. I was named to both the Virginia Business Magazine Legal Elite in Construction Law and for a 3rd consecutive year to Virginia Super Lawyers in Construction Litigation. I spoke on how to deal with a DPOR complaint this past November at the 39th Annual Construction Law and Public Contracts seminar (one I highly recommend for any lawyer interested in construction). Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Massachusetts SJC Clarifies “Strict Compliance” Standard in Construction Contracts

January 02, 2019 — Jacob Goodelman - Gordon & Rees Construction Law Blog
In Massachusetts, it is well established that a contractor cannot recover damages from a construction contract without first showing that the contractor completely and strictly performed on all of the contract’s terms. Recently, the Massachusetts Supreme Judicial Court narrowed the rule by concluding that complete and strict performance is only required for contract terms relating to the design and construction itself. The high Court explained that non-design / non-construction contract terms are governing by “ordinary contract principles, including the traditional Massachusetts materiality rule.” Read the court decision
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Reprinted courtesy of Jacob Goodelman, Gordon Rees Scully Mansukhani
Mr. Goodelman may be contacted at jgoodelman@grsm.com

Nevada Construction Defect Lawyers Dead in Possible Suicides

March 28, 2012 — CDJ STAFF

A number of news sources have reported on the recent death of Nevada construction defect attorney, Nancy Quon. Ms. Quon was implicated in a recent scandal in which a group conspired to control homeowner associations in order to divert construction defect lawsuits to the members of the conspiracy.

Ms. Quon was found dead in her bathtub. The details are still under investigations. She and her boyfriend were accused of a failed arson/suicide scheme in 2010. Ms. Quon survived an attempt to burn down her home. Subsequently, her boyfriend obtained some gamma-hydroxybutyric acid (GBH) for her, as part of another failed suicide attempt.

Subsequent to Ms. Quon’s death, David Amesbury was found in California dead by hanging. Mr. Amesbury took a plea deal in the case, and he had admitted his role in providing legal and construction contracts to firms in the conspiracy. He was accused of fixing HOA elections.

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