Cambridge Massachusetts Building Expert Directory

AB5, Dynamex, the ABC Standard, and their Effects on the Construction Industry

December 09, 2019 — Donald A. Velez - Smith Currie
Last year, we reported that the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (“Dynamex”) adopted a new, pro-employment standard (the “ABC Standard”), which presumes a worker is an employee versus an independent contractor under California wage orders and regulations. Assembly Bill 5 (“AB5”) has now been passed by the California Legislature and signed by Governor Newsom. Bill AB5 codifies the ABC Standard and brings increased costs, administrative duties, and legal risks for hiring parties on multiple fronts, including, but not limited to:

Payroll taxes;
Meals, breaks and overtime policies and enforcement and premium pay;
Benefits;
Leave and PTO policies, requirements and enforcement;
Wage order violations;
Labor Code violations and Private Attorney General Actions (“PAGA”) claims;
Unemployment insurance; and
Workers’ compensation coverage, claims, and premiums.

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Reprinted courtesy of Donald A. Velez, Smith Currie
Mr. Velez may be contacted at davelez@smithcurrie.com

A New Study: Unexpected Overtime is Predictable and Controllable

January 31, 2022 — Aarni Heiskanen - AEC Business
A new study by Dodge Construction Network and Versatile, a construction technology pioneer using artificial intelligence (AI) and the internet of things (IoT) to optimize construction processes, found that unexpected overtime is predictable and controllable through regular job site activity measurement. According to the study, overtime is predictable at an 88% confidence level, if proper measurement is utilized. Overtime is a persistent feature of construction sites, however, it is often unplanned and unpredictable. Despite the cost of overtime, its impact on skilled workers, and its implications for safety and other key factors on a project site, it is often applied to address immediate concerns rather than planned to maximize its effects. This recent study shows that in order to best understand overtime and its impact, data and measurement of jobsite activities are key. “Unique insights derived from advanced data and analytics tools will empower construction crews to build better,” said Meirav Oren, co-founder and CEO of Versatile. “Overtime can be a very effective tool on the jobsite. Through the power of data, general contractors gain the ability to minimize unnecessary overtime while maximizing its strategic benefits.” Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

Property Owners Sue San Francisco Over Sinking Sidewalks

June 20, 2022 — Beverley BevenFlorez – CDJ Staff
Residents of the Mission Bay neighborhood seek “to hold the City of San Francisco responsible for raising up the sinking sidewalks” reported KRON 4. The suit alleges that the city should shoulder the responsibility for the necessary work needed for the infrastructure. Historically, “the neighborhood around the Chase Center east of Interstate 280 was part of the bay,” according to SF Gate. Later, “the area was filled with dirt and rock and further filled with rubble after the 1906 earthquake.” In 1998, further development took place. All of the “new occupied buildings in Mission Bay, such as the UCSF campus, the Chase Center and the 6,000 residential units there, are anchored into the bedrock," but "the sidewalks, streets and parks are not, and that's a problem.” "We're not asking for a handout; we're asking for a hand. We want them to step forward and make the repairs that they can actually implement," Scott Mackey, Partner at Berding | Weil, told CBS News. "Everyone understood that it's built on fill and built in an area where there would be some settlement. But, there also is an expectation that when the city turns over the infrastructure that that homeowners and property owners have to maintain, is that it's built correctly - that they're able to maintain it. The homeowners cannot continually chase the differential movement.” Read the full story at KRON 4... Read the full story at SF Gate... Read the full story at CBS News... Read the court decision
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The Courts and Changing Views on Construction Defect Coverage

October 02, 2013 — CDJ STAFF
There have been changes recently in how courts interpret commercial general liability policies. Writing for Claims Journal, Burke Coleman, who is legal counsel and Compliance Manager for Demotech, looks at five recent cases and how they show changing views of CGL policies and construction defect claims. He notes that the Ohio Supreme Court concluded that “defective construction itself does not trigger coverage.” The court’s view in Westfield Ins. Co. v. Custom Agri Systems, Inc. was that a CGL policy does not protect contractors from every risk, but instead covers damage to other property that occur due to its work. But, conversely, the Georgia Supreme Court found that construction defect claims could be covered under a commercial general liability policy, noting that “the limits of coverage do not have to be found in the word ‘occurrence,’ inasmuch as the other words of the insuring agreement — as well as the policy exclusions — have their own roles to play in marking the limits of coverage.” This decision was reached in Taylor Morrison Services v. HDI-Gerling America. The Connecticut Supreme Court also concluded that defective construction could trigger coverage from a CGL policy, however, as Mr. Coleman notes, “only damage to non-defective property may be entitled to coverage.” He concludes that the North Dakota Supreme Court “has taken an even broader approach to the issue.” That court found that construction defects were covered “if the faulty work was unexpected and unintended.” Finally, the Supreme Court of Appeals of West Virginia held that faulty work can be property damage. He notes “the policy at issue included a ‘your work’ exclusion that excluded coverage for work performed by the insured, but subcontractors were excepted from the exclusion.” However, another clause excluded work performed on the behalf of the insured. Read the court decision
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Home Buyers will Pay More for Solar

February 05, 2015 — Beverley BevenFlorez-CDJ STAFF
The National Association of Home Builders’ (NAHB) Eye on Housing reported that a study’s results “found that homebuyers are willing to pay more for homes that have installed solar photovoltaic (PV) energy systems.” The team of researchers led by the U.S. Department of Energy’s Berkeley Laboratory “estimates a price premium of approximately $4 per watt of PV installed. For a typical PV system, the research team found that this translates into a price premium of $15,000.” Furthermore, according to the NAHB, the study “suggests that the presence of energy-efficient home features is among the most important concerns for prospective home buyers.” Read the court decision
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Select the Best Contract Model to Mitigate Risk and Achieve Energy Project Success

October 17, 2022 — Gregory S. Seador - Construction Executive
Power and energy projects are inherently complex and risky. Therefore, management and proper allocation of risk among project participants are essential to success. Careful drafting of the engineering, procurement and construction (EPC) contract is a critical first step in managing risk. The standard contract format used for power and energy construction projects is the EPC contract. In its traditional form, the EPC contract makes the EPC contractor responsible for the entire project, including engineering (design of the power plant), procurement (purchase, installation and performance of all equipment) and construction (construction of the plant). EPC contracts can, however, employ different contract models and pricing structures, each of which carries differing levels of risk for project participants. Selecting the appropriate contract model and pricing structure to meet the unique needs of the project is important. Reprinted courtesy of Gregory S. Seador, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Seader may be contacted at seador@slslaw.com

Manhattan Bargain: Condos for Less Than $3 Million

February 05, 2015 — Oshrat Carmiel and Heather Perlberg – Bloomberg
When Related Cos. began selling condominiums at one of its former rental buildings last month, 50 people showed up in the first two days for an only-in-Manhattan bargain: almost all the homes cost less than $3 million. Carnegie Park, a 1980s-era rental property, was renovated as a condo building where one-bedroom apartments with 690 square feet (64 square meters) start at $765,000. The average price for all units is about $1,300 per square foot -- roughly 30 percent less than the average for a newly built Manhattan condo sold in the fourth quarter, according to appraiser Miller Samuel Inc. Reprinted courtesy of Oshrat Carmiel, Bloomberg LLP and Heather Perlberg, Bloomberg LLP Read the court decision
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Insured Versus Insured Clause Does Not Bar Coverage

September 17, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Fifth Circuit considered whether coverage was barred under the policy's insured versus insured provision. Kinsale Ins. Co. v. Georgia-Pacific, L.L.C., 2015 U.S. App. LEXIS 12976 (5th Cir. July 27, 2015). Georgia-Pacific hired Advanced Services, Inc. for demolition work at Georgia-Pacific's idled plywood plant. A fire occurred at the plant, damaging equipment Advanced had leased from H&E Equipment for the demolition work. Several lawsuits followed. One was brought by H&E against Advanced. Advanced filed a third-party demand for indemnification against Georgia-Pacific for any damages Advanced was required to pay H&E. 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

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