Fairfield Connecticut Building Expert Directory

Court Rejects Anti-SLAPP Motion in Construction Defect Suit

September 01, 2011 — CDJ STAFF

The California Court of Appeals has upheld the denial of an anti-SLAPP motion in Claredon American Insurance Company v. Bishop, Barry, Howe, Haney & Ryder. This case was triggered by a water intrusion problem at a condominium complex, the Terraces at Emerystation, built and sold by Wareham Development Corporation. The insurer, Claredon, retained Risk Enterprise Management as the third party claims administrator. REM retained the law firm Bishop, Barry, Howe, Haney & Ryder. The construction defect case was settled in 2007 and the condo owners moved back by early 2008.

Due to issues with the claims settlement, Claredon filed against REM for “professional negligence, indemnity, apportionment and contribution,” with a cross-complaint that the cross-defendants negligently defended the developer, Wareham.

In response, the cross-defendants filed a motion to strike the cross-complaint under the anti-SLAPP statute. The trial court denied this motion and now this has been upheld by the appeals court.

The court noted that “The fundamental thrust of the cross-complaint is not protected litigation-related speech and petitioning activity undertaken on another’s behalf in a judicial proceeding.”

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Small Airport to Grow with Tower

October 25, 2013 — CDJ STAFF
The city Hammond, Louisiana is finding that their airport just keeps getting busier. Mayson Foster, the mayor of Hammond noted that the city now has “various types of aircraft ranging from blimps, regional jets, smaller private planes, helicopters and other aircraft using the airport.” Spartan Construction Company has made a successful $1.6 million bid to build the tower. Funding will come from the sale of 17 acres of land near the airport. Air traffic at the Northshore Regional Airport is expected to increase after the tower becomes operational. Read the court decision
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Rise in Single-Family Construction Anticipated in Michigan

December 04, 2013 — CDJ STAFF
Things are looking up for Michigan home builders. Rovert Filka, the chief executive officer of the Home Builders Association of Michigan said that “home values are starting to rise as a result of so little production over the last five years.” The group anticipates that about 14,000 new homes will be built in Michigan over the next year. Jason Burton, owner of Price Right Builders, noted that the increase in building has been slow. “Locally we are seeing the climb, but it’s a slow climb,” he said. “We’ve got a long way to go to get back to where we were.” Read the court decision
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The Expansion of Potential Liability of Construction Managers and Consultants

November 18, 2019 — Scott D. Cessar - Construction Executive
Over the last decade or so, there has been far more judicial willingness to adopt legal theories that result in an increased risk of exposure to construction managers and consultants working on construction projects. This has resulted in a greater likelihood of lawsuits being filed that name construction managers and consultants as defendants and a greater likelihood of those lawsuits surviving efforts to have the lawsuits dismissed prior to trial. The consequence of more claims has led to increased costs for legal expenses, settlements and uncompensated personnel time devoted to the defense of the claims. This expansion of potential liability may be broken into two sets:

claims for pure economic loss not arising from property damage or personal injury by parties not in a contractual relationship with a construction manager or consultant; and
claims for property damage or personal injury by a party not in a contractual relationship with a construction manager or consultant.

The first set concerns claims by a contractor against a construction manager or consultant that its breach of duties owed to the owner on a project and/or its provision of incomplete or inaccurate information on a project, which it knew, or should have reasonably anticipated, would be relied on by the contractor, resulted in damages to the contractor. Reprinted courtesy of Scott D. Cessar, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Cessar may be contacted at scessar@eckertseamans.com

Quick Note: Notice of Contest of Claim Against Payment Bond

January 31, 2018 — David Adelstein - Florida Construction Legal Updates
On private jobs where the general contractor has an unconditional payment bond, subcontractors, sub-subcontractors and suppliers need to serve a notice of nonpayment to preserve payment bond rights. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

Two Worthy Insurance Topics: (1) Bad Faith, And (2) Settling Without Insurer’s Consent

February 20, 2023 — David Adelstein - Florida Construction Legal Updates
The recent Eleventh Circuit Court of Appeals’ decision, American Builders Insurance Company v. Southern-Owners Insurance Company, 56 F.4th 938 (11th Cir. 2023), is an insurer versus insurer case that touches on two important insurance topics: (1) common law bad faith against an insurance company, and (2) an insurer’s affirmative defense that an insured settled a claim without its consent. The Eleventh Circuit provides invaluable legal discussion on these topics that any insured (and an insured’s counsel) need to know and appreciate. While this article won’t go into the granular facts as referenced in the opinion, it will go into the law because it is the law the facts of a case MUST cater to and address. In this case, a person performing subcontracting work fell from a roof without fall protection and became paralyzed from the waist down. The general contractor had a primary liability policy and an excess policy. The general contractor’s primary liability insurer investigated the accident and assessed the claim. The subcontractor’s liability insurer, which was the primary insurance policy (the general contractor was an additional insured for work the subcontractor performed for the general contractor), did little to investigate and assess the claim and then refused to pay any amount to settle the underlying claim or honor its defense and indemnity obligation to the general contractor. 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

Critical Updates in Builders Risk Claim Recovery: Staying Ahead of the "Satisfactory State" Argument and Getting the Most Out of LEG 3

December 11, 2023 — Gregory D. Podolak & Cheryl L. Kozdrey - Saxe Doernberger & Vita, P.C.
Builders risk claims routinely involve complicated and aggressive debate about the interplay between covered physical loss and uncovered faulty work. However, denials on this front have recently experienced a noticeable uptick in frequency, creativity, and aggressiveness. The insurer arguments concentrate in two key areas with a common theme – that any damage associated with a construction defect is not covered:

Defective construction does not qualify as a “physical” loss to trigger the insuring agreement; and
Any natural results of defective construction are excluded as faulty workmanship, even with favorable LEG 3 or similar language.

Neither of these arguments should impede access to coverage in the majority of scenarios. To ensure as much, it is incumbent on the savvy policyholder to understand the insurer tactics, be prepared to spot them early, and have thoughtful counter positions at the ready to address them decisively. Reprinted courtesy of Gregory D. Podolak, Saxe Doernberger & Vita, P.C. and Cheryl L. Kozdrey, Saxe Doernberger & Vita, P.C. Mr. Podolak may be contacted at GPodolak@sdvlaw.com Ms. Kozdrey may be contacted at CKozdrey@sdvlaw.com Read the court decision
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Look Up And Look Out: Increased Antitrust Enforcement Of Horizontal No-Poach Agreements Signals Heightened Scrutiny Of Vertical Agreements May Be Next

November 28, 2022 — John F. Finnegan, III & Dominick Weinkam - ConsensusDocs
In the current regulatory environment, it is important for contractors to remain vigilant of heightened anti-competitive enforcement in the construction and procurement spheres by the United States Department of Justice (DOJ). Such vigilance should include, among other things, regular review of applicable laws and implementation of related updates to compliance policies, as well as careful evaluation of joint venture (JV), subcontractor, and teaming agreements. Recent DOJ Activity Opens The Door To Broader Antitrust Exposure For Contractors Many contractors include exclusivity and non-compete clauses in their vertical agreements, including subcontractor agreements and certain types of JV and teaming agreements. In fact, many widely available “checklists” for drafting these agreements recommend including such provisions; however, under U.S. antitrust law, particularly as enforced by the DOJ in the last 1-2 years, exclusivity and non-compete clauses may be construed as unduly competition-restricting. Although no court has yet held that exclusivity and non-compete clauses in vertical agreements violate antitrust laws, recent aggressive enforcement activity by the DOJ with regard to horizontal no-poach agreements suggests that the investigatory headwinds may be blowing in that direction. Reprinted courtesy of John F. Finnegan, III, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) and Dominick Weinkam, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs) Mr. Finnegan may be contacted at jfinnegan@watttieder.com Mr. Weinkam may be contacted at dweinkam@watttieder.com Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES