CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Loss of Use From Allegedly Improper Drainage System Triggers Defense Under CGL Policy

February 28, 2018 — Katherine E. Miller and Michael S. Levine – Hunton Insurance Recovery Blog
The Eleventh Circuit, in Mid-Continent Casualty Co. v. Adams Homes of Northwest Florida, Inc., No. 17-12660, 2018 WL 834896, at * 3-4 (11th Cir. Feb. 13, 2018) (per curiam), recently held under Florida law that a homebuilder’s alleged failure to implement a proper drainage system that allowed for neighborhood flooding triggered a general liability insurer’s duty to defend because the allegations involved a potentially covered loss of use of covered property. Reprinted courtesy of Katherine E. Miller, Hunton & Williams and Michael S. Levine, Hunton & Williams Ms. Miller may be contacted at kmiller@hunton.com Mr. Levine may be contacted at mlevine@hunton.com Read the court decision
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Brazil World Cup Soccer Crisis Deepens With Eighth Worker Death

May 13, 2014 — Tariq Panja – Bloomberg
Brazil’s troubled World Cup staging efforts suffered another setback today following the electrocution death of a worker at one of the stadiums still under construction. Mohammed Ali, 32, was killed while working in the Arena Pantanal in Cuiaba, said Renata Martins, a spokeswoman for the state of Mato Grosso, where the venue is located. Ali’s death is the eighth construction related fatality at Brazil’s 12 World Cup venues and comes 35 days before the tournament opens on June 12 in Sao Paulo’s Corinthians Arena, another facility where work remains. The Cuiaba stadium, which will host four games starting with Chile playing Australia on June 13, is still missing 5,000 seats. Read the court decision
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Reprinted courtesy of Tariq Panja, Bloomberg
Mr. Panja may be contacted at tpanja@bloomberg.net

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Disaster-Relief Bill Stalls in Senate

April 22, 2019 — Tom Ichniowski - Engineering News-Record
A partisan squabble over funds to help Puerto Rico continue its long recovery and rebuilding from two hurricanes in 2017 has tied up a wide-ranging spending package on Capitol Hill. At stake in the fight are hundreds of millions of dollars for reconstruction and related work around the U.S. Mr. Ichniowski may be contacted at kormanr@enr.com Reprinted courtesy of Tom Ichniowski, ENR Read the court decision
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Florida Federal Court to Examine Issues of Alleged Arbitrator Conflicts of Interests in Panama Canal Case

May 24, 2021 — Sarah B. Biser & Philip Z. Langer - ConsensusDocs
The parties in a $238-million dispute over the construction of the third set of locks for the Panama Canal are raising issues concerning alleged conflicts of interest on the part of the International Chamber of Commerce (“ICC”) arbitrators in the United States District Court for the Southern District of Florida.[2] The case may address rarely litigated issues concerning whether arbitrators who sit on multiple arbitration panels together or who support appointment of each other to lead arbitration panels have disabling conflicts of interest. The case pits Grupo Unidos por el Canal, S.A. (“Grupo”), a consortium of Spanish, Italian, Belgian, and Panamanian construction firms, against Autoridad del Canal de Panama (“ACP”), the Panamanian entity that operates the Panama Canal and that sponsored the multi-billion-dollar, decade-long project to expand the Canal’s capacity by building a new set of locks (the “Project”). The current dispute (the “Panama 1 Arbitration”), which centers on the suitability of the rock coming from the excavations to be used to produce concrete aggregates for the Project, was arbitrated before a three-member ICC Tribunal and resulted in a $238-million award to ACP and against Grupo. The ICC Tribunal reversed a decision of the dispute review board established in the parties’ contract. Reprinted courtesy of Sarah B. Biser, Fox Rothschild LLP and Philip Z. Langer, Fox Rothschild LLP Ms. Biser may be contacted at sbiser@foxrothschild.com Mr. Langer may be contacted at planger@foxrothschild.com Read the court decision
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A New Statute of Limitations on Construction Claims by VA State Agencies?

March 27, 2019 — Christopher G. Hill - Construction Law Musings
I have discussed the Hensel Phelps case and the potential issues caused by both poorly drafted indemnity clauses and the lack of a statute of limitations applicable to the Commonwealth of Virginia and its agencies in 2017. New legislation (supported by various contractor groups including my friends at the AGC of Virginia) has been proposed for the 2019 General Assembly session that seeks to address at least part of this issue. While the indemnity provisions of your construction contracts can be addressed by careful drafting with the help of an experienced construction attorney, the proposed legislation (found in HB1667) seeks to address the statute of limitations issue. The proposed legislation is described as follows:

Provides that no action may be brought by a public body on any construction contract, including construction management and design-build contracts, unless such action is brought within five years after substantial completion of the work on the project and that no action may be brought by a public body on a warranty or guarantee in such construction contract more than one year from the breach of that warranty, but in no event more than one year after the expiration of such warranty or guarantee. The bill also limits the time frame during which a public body, other than the Department of Transportation, may bring an action against a surety on a performance bond to within one year after substantial completion of the work on the project.

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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A Recession Is Coming, But the Housing Market Won't Trigger It

June 12, 2023 — Edward Harrison - Bloomberg
One big reason to continue to believe this is no 2008-style financial crisis in the making is the housing market, which has held up well. That means, we’re more likely to experience a garden-variety recession, and I think it will happen sometime later this year. Why this isn’t another 2008-style crisis Residential property was famously the trigger for a cataclysmic global financial crisis a decade and a half ago. That’s because residential property is one of the principal assets of the middle classes across the globe. And it’s a leveraged investment to boot because of the money borrowed through mortgages. That makes large and pervasive house-price declines toxic for the economy. But not that many people are worrying about house prices today. So I thought I’d take a breather from the doom and gloom surrounding commercial real estate, banks and the debt ceiling to focus on house prices and why they aren’t worrying us this go round. And I’ll use one of the pricier markets, the UK, as a first example. Read the court decision
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Reprinted courtesy of Edward Harrison, Bloomberg

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Title II under ADA Applicable to Public Rights-of-Way, Parks and Other Recreation Areas

June 29, 2017 — Richard E. Morton - Haight Brown & Bonesteel LLP
Plaintiff Ivana Kirola, who suffers from cerebral palsy, sued the City and County of San Francisco, in a class action contending certain public areas, including rights-of-way, pools, parks and other recreation areas, did not meet the mandate of Title II of the American With Disabilities Act (Kirola v. City and County of San Francisco, 9th Circuit Court of Appeals, No. 14-17521, 2017 DJDAR 5982). Title II provides that no qualified individual with a disability “shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Title II’s implementing regulations mandate that each facility constructed after January 26, 1992 be “readily accessible to and usable by individuals with disabilities.” And, for each facility “altered after January 26, 1992,” the altered portion must, “to the maximum extent feasible,” be likewise accessible. The Federal Architectural and Transportation Barriers Compliance Board creates nonbinding Americans With Disabilities Act Accessibility Guidelines (ADAAG) to ensure compliance with Title II, and that the Department of Justice (DOJ) adopt its own binding regulations, consistent with the ADAAG standards. Here, the District Court interpreted ADAAG standards as not applying to public rights-of-way, parks, and playground facilities. The District Court concluded that none of Kirola’s experts were reliable in their interpretation of the standards and how the standards applied to the public rights-of-way, etc. Conversely, the District Court concluded that all of the city’s experts were reliable. It thus disregarded and discarded every ADAAG violation identified by Kirola’s experts, accepting only the small number of violations identified by the city’s experts. Read the court decision
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Reprinted courtesy of Richard E. Morton, Haight Brown & Bonesteel LLP
Mr. Morton may be contacted at rmorton@hbblaw.com

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Mediation in the Zero Sum World of Construction

September 26, 2022 — Christopher G. Hill - Construction Law Musings
Construction is a zero sum game. What do I mean by that? I mean that even where you, a construction professional with a great construction lawyer, have reviewed and edited a subcontract presented to you or provided a well-drafted contract to the other party that contains an attorney fees provision, every dollar that you spend on litigation is a dollar less of profit. Couple the fact that no construction company can or should bid or negotiate work with an eye toward litigation (aside from having a well written contract that will be enforced to the letter here in Virginia). Particularly on “low bid” type projects, contractors and subcontractors cannot “pad” their bids to take into account the possibility of attorney fees, arbitration, or litigation. Furthermore, the loss of productivity when your “back office” personnel are tied up dealing with discovery, phone calls, and other incidents of litigation that do nothing but rehash a bad project and increase the expense sap money from the bottom line. While the possibility of a judgment including attorney fees may soften this blow, you are still out the cash. All of this said, if you are in commercial construction for any significant period of time disputes will arise and I have discussed the process in some detail at other places here at Construction Law Musings. As a construction litigator, I am fully aware of this fact of life. Efficient management of these disputes is key, particularly when they escalate to the point where some form of outside “help” (read arbitrator or judge) is necessary. 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

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