Cambridge Massachusetts Building Expert Directory

Pennsylvania Supreme Court Reaffirms Validity of Statutory Employer Defense

March 31, 2014 — Michelle Coburn and Michael Jervis – White and Williams LLP
In Patton v. Worthington Associates, Inc., the Pennsylvania Supreme Court reaffirmed the continuing validity of the longstanding statutory employer doctrine and related five-part test of McDonald v. Levinson Steel Co. In doing so, the court overruled the Superior Court and held that Worthington was immune from tort liability as the statutory employer of plaintiff Earl Patton. Worthington was the general contractor for a project to construct an addition to a church. Worthington subcontracted with Patton Construction, Inc. to perform carpentry work. Earl Patton was an employee and the sole owner of Patton Construction, Inc. He was injured in a scissor lift accident while performing work on the church. Patton sued Worthington alleging failure to maintain safe conditions at the worksite. After a trial, a jury awarded Patton and his wife a little more than $1.5 million in damages. Before trial, Worthington had moved for summary judgment arguing that it was Patton’s statutory employer and thus immune from tort liability under Pennsylvania’s Workers’ Compensation Act. Under that law, general contractors are secondarily liable for payment of workers’ compensation benefits to employees of subcontractors. Like traditional employers, statutory employers are immune from tort liability for work-related injuries in situations where they are secondarily liable for workers’ compensation payments. Reprinted courtesy of Michelle Coburn, White and Williams LLP and Michael Jervis, White and Williams LLP Ms. Coburn may be contacted at coburnm@whiteandwilliams.com; Mr. Jervis may be contacted at jervism@whiteandwilliams.com Read the court decision
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Fifth Circuit Finds Duty to Defend Construction Defect Case

March 14, 2022 — Tred R. Eyerly - Insurance Law Hawaii
Reversing the judgment of the district court, the Fifth Circuit found the insurer owed a defense in a construction defect case. Siplast, Inc. v. Emplrs Mut. Cas. Co., 2022 U.S. App. LEXIS 795 (5th Cir. Jan. 11, 2022). The Archdiocese of New York sued various parties for a roofing project at a high school in the Bronx. Siplast, the roofing manufacturer, was included as a defendant. The underlying lawsuit arose from the Archdiocese purchase of a roof membrane system from Siplast. Siplast guaranteed that the roof membrane system would remain "in a watertight condition for a period of 20 years . . . or Siplast will repair the Roof Membrane System at its own expense." After installation of the roof, school officials noticed water damage in the ceiling tiles throughout the school after a rain storm. Siplast attempted to repair the damage, but was unsuccessful. Siplast later informed the Archdiocese that the guarantee would not be honored regarding any permanent improvements of the roof. The Archdiocese filed suit against Siplast and the installing contractor. The cause of action against Siplast was for breach of the guarantee. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Conditional Judgment On Replacement Costs Awarded

January 07, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The appellate court determined that a conditional judgment on replacement costs was appropriate after the insurer denied coverage. Stephens & Stephens XII, LLC v. Fireman's Fund Ins. Co., 2014 Cal. App. LEXIS 1073 (Cal. Ct. App. Nov. 24, 2014). Stephens operated a large industrial warehouse. It initially purchased a commercial liability policy from Fireman's Fund when an tenant occupied the building. After the tenant left, Stephens purchased from Fireman's Fund property coverage on June 28, 2007. On July 1, Stephens discovered that burglars had caused more than $2 million in damage to the property. All conductive material was stripped from the building and taken away. There was water damage throughout the building. The estimated cost of repair exceeded $1 million. Stephens notified Fireman's Fund. The insurer paid emergency repairs, but it neither accepted nor denied coverage for the loss. Finally, five years after the incident and on the eve of trial, Fireman's Fund denied coverage. 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

The Utility of Arbitration Agreements in the Construction Industry

December 30, 2019 — Brian L. Gardner & Jason R. Finkelstein - Construction Executive
In today’s ever-evolving world of employment law, it is far from an easy task for construction industry employers to operate their business while successfully navigating all of the potential legal potholes that continue to abound and multiply seemingly with every passing day. This is particularly true in the face of the onslaught of claims lodged by current and former employees in recent years for alleged unpaid wages. While there may not be a “sure bet” way of avoiding such claims, one tool that employers should strongly consider in their arsenal are arbitration and class action waiver agreements. To that end, last year, the United States Supreme Court rendered its ground-breaking decision in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018). In Epic Systems, the Supreme Court held that arbitration agreements containing class and collective action waivers of wage and hour disputes are enforceable. At the time of the decision, a split of authority existed among courts across the country as to whether such agreements were viable. On the one hand, several courts contended that class waivers unfairly violated employees’ rights to collectively bargain under the National Labor Relations Act. On the other hand, many other courts were finding that such agreements were fully enforceable and supported by the policies promoted under the Federal Arbitration Act. The Epic Systems Court sided with this latter viewpoint, concluding that the FAA’s clear policy promoting arbitration as a dispute resolution mechanism and private parties’ rights to freely negotiate contracts outweighed any potential arguments against such agreements under the NLRA. With wage and hour lawsuits being filed against construction industry employers practically daily, the Epic Systems decision is critically important. Construction employers can now freely enter into arbitration and class waiver agreements with their laborers and thereby potentially limit the cost, expense and exposure of fighting such actions in a public forum on a collective or class-wide basis. To be clear, such agreements will not eliminate employees from bringing such wage and hour claims entirely, nor should the use of those agreements signal to employers that they need not make every good-faith effort to comply with their obligations under the Federal Labor Standards Act and/or any applicable state wage and hour laws. But the reality is that arbitration and class waiver agreements can work to avoid tens or hundreds or even thousands of employees from banding together in some of the massive wage and hour lawsuits being filed across the country. Instead, employers can require that those legal battles be conducted by a single plaintiff in a more controlled environment before an arbitrator (or panel of arbitrators). Reprinted courtesy of Brian L. Gardner & Jason R. Finkelstein, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Gardner may be contacted at bgardner@coleschotz.com Mr. Finkelstein may be contacted at jfinkelstein@coleschotz.com Read the court decision
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More Clear, But Not Yet Crystal: Virginia Amends its Prompt Payment Law and Legislation Banning “Pay-If-Paid Clauses in Construction Contracts Effective July 1, 2023

November 16, 2023 — Hanna Lee Blake - ConsensusDocs
The Virginia General Assembly has joined a minority of jurisdictions that ban pay-if-paid clauses in construction contracts on public and private projects. Senate Bill 550 went into effect applying to contracts executed after January 1, 2023, and most recently has been amended effective July 1, 2023. This update highlights the recent amendments to Virginia’s prohibition against pay-if-paid provisions, of which owners and contractors should be aware to ensure that their contracts comply with developing law in the Commonwealth. Recap on Senate Bill 550 On April 27, 2022, the Virginia General Assembly passed Senate Bill 550, which amended Virginia Code §§ 2.2-4354 and 11-4.6, which govern both public and private sector contracts. In short, SB 550 (as the bill is commonly known) prohibited pay-if-paid clauses, and established fixed deadlines for the payment of invoices on private projects. Previously, Virginia’s Prompt Payment Act only applied to public projects. Read the court decision
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Reprinted courtesy of Hanna Lee Blake, Watt Tieder
Ms. Blake may be contacted at hblake@watttieder.com

Mediation Clause Can Stay a Miller Act Claim, Just Not Forever

July 11, 2021 — Christopher G. Hill - Construction Law Musings
It seems to be Miller Act time here at Construction Law Musings, not to mention in the Federal District Courts here in Virginia. Last week I discussed what sort of work can form the basis for a Miller Act claim. This week I am discussing the effect of a mandatory mediation contract clause on the same type of claim. I have discussed both the benefits and the possible negative consequences of the inclusion of such a clause in your construction contract. The recent case out of the Norfolk, Virginia Federal District Court recently explored the related question of whether such a clause can be enforced in the context of a Miller Act claim. In United States of America, for the use of Precision Air Conditioning of Brevard Inc. v. Cincinnati Insurance Company, the Court was confronted with a possible conflict between the legal requirement that any waiver of the right to pursue a Miller Act claim must be explicitly waived in writing and the clear contractual language between the general contractor and the plaintiff stating that mediation was a condition precedent to suit. 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

Fire Fears After Grenfell Disaster Set Back Wood Building in UK

May 29, 2023 — Olivia Rudgard - Bloomberg
This article is part of the Bloomberg Green series Timber Town, which looks at the global rise of timber as a low-carbon building material. To get fire department approval for their six-story London office project made of strong engineered wood known as mass timber, Theo Michell and Richard Walker had to build a full-scale section of it in the UK, ship it to Poland and attempt to set it on fire. The mockup was set alight “with enough material that replicates the fire load that you get from furniture and carpets and desks, and all the rest of it, and you see how that structure performs,” says Michell. “It was cool,” adds Walker. “It looked amazing.” Their building, called Paradise, passed the fire test and is under construction, though not without a significant drag on their budget and time. Read the court decision
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Reprinted courtesy of Olivia Rudgard, Bloomberg

NY Is Set To Sue US EPA Over ‘Completion’ of PCB Removal

June 25, 2019 — Mary B. Powers - Engineering News-Record
New York state intends to sue the U.S. Environmental Protection Agency for issuing a certificate to General Electric Co. affirming the company completed its $1.7-billion cleanup of about 40 miles of the upper Hudson River, contaminated with PCBs from two former factories. State Attorney General Letitia James said April 11 that a December state study showed elevated PCB levels in river sediment and concentrations in fish, which were not recovering at the rate EPA anticipated. Read the court decision
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Reprinted courtesy of Mary B. Powers, ENR
ENR may be contacted at ENR.com@bnpmedia.com

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