Fairfield Connecticut Construction Expert Witness Directory

No Subrogation, Contribution Rights for Carrier Defending Construction Defect Claim

December 23, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The Court held that the insurer defending the additional insured general contractor had no right to equitable subrogation or equitable contribution from a separate carrier who also insured the general contractor as an additional insured. Old Republic Gen. Ins. Co. v. Amerisure Ins. Co., 2023 U.S. Dist. LEXIS 170293 (N.D. Ill. Sept. 25, 2023). Tanger Grand Rapids, LLC hired Rockford Construction Company to build the Tanger Outlet Center. Rockford subcontracted with Kamminga & Roodvoeis, Inc. (K&R) to work on the pavement for the outlet mall. Under the subcontract, K&R agreed to maintain primary commercial general liability insurance for itself, with Rockford as an additionial insured. K&R obtained a policy from Amerisure. For additional paving work, Rockford subcontracted with Michigan Paving & Materials, CP. The subcontract also required Michigan Paving to maintain primary coverage, with Rockford as an additional insured. Michigan Paving obtained a policy from Liberty Mutual. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

A New Lawsuit Might Change the Real Estate Industry Forever

December 23, 2023 — Tracy Alloway, Joe Weisenthal, and Aashna Shah - Bloomberg
Last month, a Missouri jury found that real estate brokers colluded to artificially inflate and fix their own commissions, and as a result, ordered the National Association of Realtors to pay $1.8 billion in damages. While the ruling will be appealed, with highly uncertain damages and remedies, the case is shining a light on how participants in the real estate industry get paid, and raising the question of whether homebuyers are paying too much to their brokers. So how do brokers get paid? What are their incentives? And why haven't fees for brokers gone down, even as online platforms that compete with them have proliferated. On this episode of the podcast, we speak with Andra Ghent, a finance professor at the University of Utah and a specialist in real estate who explains how the structure works currently, and how the lawsuit could ultimately change the entire business model of buying and selling homes. This transcript has been lightly edited for clarity. Reprinted courtesy of Tracy Alloway, Bloomberg, Joe Weisenthal, Bloomberg and Aashna Shah, Bloomberg Read the full story...

Leftover Equipment and Materials When a Contractor Is Abruptly Terminated

November 06, 2023 — Brian Perlberg - ConsensusDocs
Termination for cause is costly and adversarial and has been covered in this article. But can a terminating party use equipment and tools left behind on the worksite (i.e., a crane)? The answer depends on what is in your contract. Under ConsensusDocs, a constructor must give its permission to use any equipment or supplies left at the worksite, such as a crane.[i] Moreover, the owner must indemnify the constructor for using their equipment. This makes sense because even if a constructor were appropriately terminated for cause, using their equipment and materials they no longer possess or control unfairly creates additional liability exposure. At a minimum, the owner should take on the risk of using the equipment and materials since they benefit from such use. Read the full story...
Reprinted courtesy of Brian Perlberg, ConsensusDocs Coalition
Mr. Perlberg may be contacted at bperlberg@ConsensusDocs.org

Sweat the Small Stuff – Don’t Overlook These Three (3) Clauses When Negotiating Your Construction Contract

April 08, 2024 — Bill Shaughnessy - ConsensusDocs
Reviewing and understanding the terms of your construction contract before signing on the dotted line (ideally with counsel involved) is an obvious best practice – whether you are owner, general contractor, design-professional or down-tier subcontractor or supplier. Typically, during this review process, parties pay closest attention to terms relating to price, scope, schedule, insurance, indemnification, and damages. And rightfully so, as these are just some of the most fundamental and important clauses of any construction contract. But during this review and understanding process, parties often overlook and fail to fully review and understand several notably important contract provisions (other than the examples above) which can have just as significant an impact on the project and even unintended consequences once construction starts. This article discusses three (3) of these often-overlooked provisions which should also be carefully reviewed to ensure the project runs smoothly and to avoid unintended consequences or even disputes (and litigation) during construction:

Incorporation by reference clause;
Order of precedence or higher standard clause; and
Choice of law clause.

Read the full story...
Reprinted courtesy of Bill Shaughnessy, Jones Walker LLP (ConsensusDocs)
Mr. Shaughnessy may be contacted at bshaughnessy@joneswalker.com

Hawaii Supreme Court Says Aloha to Insurers Trying to Recoup Defense Costs From Policyholders

January 02, 2024 — Lara Degenhart Cassidy & Yosef Itkin - Hunton Insurance Recovery Blog
The Hawaii Supreme Court emphatically rejected insurer efforts to seek reimbursement of defense costs absent a provision in the policy providing for such reimbursement in St. Paul Fire & Marine Insurance Company v. Bodell Construction Company, No. SCCQ-22-0000658, 2023 WL 7517083, (Haw. Nov. 14, 2023). The state high court’s well-reasoned decision rests on bedrock law regarding insurance policy construction and application, follows the nationwide trend of courts compelling insurers to satisfy their contractual obligations in full, and should carry great weight as other jurisdictions continue to debate the same issue. In Bodell, the Hawaii Supreme Court joined the swelling ranks of courts recognizing that an insurer may not use a reservation of rights to create the extra-contractual “right” to recoup already paid defense costs for a claim on which the insurer ultimately owes no coverage. See, e.g., Am. & Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526 (Pa. 2010). Other jurisdictions, such as California, will permit an insurer to seek reimbursement from a policyholder for defense costs incurred in defending claims later determined to be uncovered. See Buss v. Superior Court, 16 Cal.4th 35 (1997) (holding insurers have a right to reimbursement of defense costs incurred for noncovered claims). Reprinted courtesy of Lara Degenhart Cassidy, Hunton Andrews Kurth and Yosef Itkin, Hunton Andrews Kurth Ms. Cassidy may be contacted at lcassidy@HuntonAK.com Mr. Itkin may be contacted at yitkin@HuntonAK.com Read the full story...

Washington Court Denies Subcontractor’s Claim Based on Contractual Change and Notice Provisions

January 29, 2024 — Wendy Rosenstein - Ahlers Cressman & Sleight PLLC
The recent unpublished case, Cascade Civil Construction, LLC v. Jackson Dean Construction, Inc., et al.,[1] provides a legal justification for contractors to require a directive or change order in advance of performing changed work—thereby preventing the party who requested the changed work from later arguing that notice provisions were not complied with. In the case, Jackson Dean, the prime contractor, hired Cascade to perform excavation work on a project to build a new Costco Corporate headquarters. Due to the Covid-19 pandemic and other issues, Jackson Dean directed resequencing, which required Cascade to perform excavation concurrent to dewatering. Jackson Dean also required deeper-than-planned excavation under one of the buildings. Read the full story...
Reprinted courtesy of Wendy Rosenstein, Ahlers Cressman & Sleight PLLC
Ms. Rosenstein may be contacted at wendy.rosenstein@acslawyers.com

Top 10 OSHA Violations For The Construction Industry In 2023

February 26, 2024 — Dominic Donato & Jeff Miragliotta - Kahana Feld
Every year, the Occupational Safety and Health Administration (OSHA) publishes their top violations in the construction industry. And typically, the most common violations are consistent year after year. What separates 2023 is the number of citations involving Fall Protection, Scaffolding, Ladders, and the failure to use personal protective equipment (PPE) or other life safety equipment (LSE). The following is the list of the Top Ten OSHA violations for 2023: (10) Toxic and Hazardous Substances. There were 382 citations issued for “hazardous communication” and improper warnings issued to construction employees. (9) Excavations. There were 395 citations issued for failure to provide proper and specific excavation requirements and instructions. (8) Scaffolding – Aerial Lifts. There were 481 citations issued for improper lifting equipment and supports for building scaffolding. Reprinted courtesy of Dominic Donato, Kahana Feld and Jeff Miragliotta, Kahana Feld Mr. Donato may be contacted at ddonato@kahanafeld.com Mr. Miragliotta may be contacted at jmiragliotta@kahanafeld.com Read the full story...

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 full story...

FAIRFIELD CONNECTICUT CONSTRUCTION EXPERT WITNESS DIRECTORY AND CAPABILITIES