Cambridge Massachusetts Building Expert Directory

Professional Liability and Attorney-Client Privilege Bulletin: Intra-Law Firm Communications

January 07, 2015 — David W. Evans & Stephen J. Squillario – Haight Brown & Bonesteel LLP
Attorney-Client Privilege Protects Confidential Communications Between Law Firm Attorney Representing Current Client and Firm’s General Counsel Regarding Disputes with Client Who Later Files Malpractice Suit In a case of first impression in California, Edwards Wildman Palmer LLP v. Superior Court (No. B255182 - filed November 25, 2014), Division Three of the Second District Court of Appeal addressed the question of whether the attorney-client privilege applies to intrafirm communications between law firm attorneys concerning disputes with a current client, when that client later sues the firm for malpractice and seeks to compel production of such communications. The court concluded that when an attorney representing a current client seeks legal advice from the law firm’s designated in-house “general counsel” concerning disputes with the client, the attorney-client privilege applies to their confidential communications. The court held that adoption of the so-called “fiduciary” or “current client” exceptions to the attorney-client privilege is contrary to California law because California courts are precluded from creating implied exceptions to the statutorily created attorney-client privilege. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com; Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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When Construction Contracts Go Sideways in Bankruptcy

February 16, 2017 — Tracy Green - California Construction Law Blog
The contractor on a project files a bankruptcy case. How should the property owner and subcontractors proceed? When a party to a contract files bankruptcy, the other party’s actions are constrained by the bankruptcy code. Types of Bankruptcies The typical bankruptcy case involves a chapter 7 complete liquidation, chapter 13 reorganization for an individual, or a chapter 11 reorganization or liquidation. In a chapter 7 the business ceases to operate and a panel trustee is appointed immediately upon the filing of the case. The chapter 7 trustee’s duties are to liquidate assets for the benefit of creditors and to prosecute litigation that can result in assets for the creditors. In a chapter 13, the individual debtor continues to operate, and there is a trustee, but the trustee’s roll is limited to reviewing the chapter 13 plan and making sure that the plan is performed. In a chapter 11, the debtor retains control of its assets and continues to operate its business until a plan is confirmed. During the chapter 11 period before a plan is approved, the debtor will decide which contracts it wants to assume or reject, all while operating the company and preparing a plan. Read the court decision
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Reprinted courtesy of Tracy Green, Wendel Rosen Black & Dean LLP
Ms. Green may be contacted at tgreen@wendel.com

Mississippi Supreme Court Addresses Earth Movement Exclusion

December 09, 2019 — Anthony Hatzilabrou - Traub Lieberman
Recently, the Mississippi Supreme Court held that structural damages to the foundation of an insured’s home came within the earth movement exclusion in a homeowner’s policy, notwithstanding a provision in the policy which provided coverage for water damage resulting “from accidental discharge or overflow of water … from within … [p]lumbing, heating, air condition or household appliance.” In Mississippi Farm Bureau Cas. Ins. Co. v. Smith, 264 So. 3d 737 (Miss. 2019), the appellee, Smith, filed a lawsuit against her homeowner's insurance company, Mississippi Farm Bureau Casualty Insurance Company (“Farm Bureau”) for its refusal to pay for repairs to the foundation of Smith’s home. Smith alleged that the refusal to pay for repairs amounted to breach of contract and asserted claims for bad faith and tortious breach of contract. In response, Farm Bureau filed a motion for summary judgment on the basis of the policy’s earth-movement exclusion, which provided that Farm Bureau “did not insure for loss caused directly or indirectly by…Earth Movement…[which] means…[a]ny other earth movement including earth sinking, rising or shifting... caused by or resulting from human or animal forces.” Smith filed a cross-motion for partial summary judgment on the basis that the earth-movement exclusion did not preclude coverage because her insurance policy also contained a clause expressly covering water damage. Read the court decision
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Reprinted courtesy of Anthony Hatzilabrou, Traub Lieberman
Mr. Hatzilabrou may be contacted at thatzilabrou@tlsslaw.com

Attorneys Fees Under California’s Prompt Payment Statutes. Contractor’s “Win” Fails the Sniff Test

October 02, 2015 — Roger Hughes – California Construction Law Blog
This past month, the California Court of Appeals for the Third District, in James L. Harris Painting & Decorating, Inc. v. West Bay Builders, Inc., Case No. C072169 (August 27, 2015), handed down a decision in a construction contract battle that has raged since 2007. And, once again, the winner is . . . in the words of Justice Andrea Lynn Hoch who authored the opinion . . . . “no prevailing party in [the] case” and hence “no prevailing party attorney’s fees [ ] awarded.” Background In Harris, subcontractor James L. Harris Painting & Decorating, Inc. (“Harris”) sued general contractor West Bay Builders, Inc. (“West Bay”) for extra work performed on a school construction project in Stockton, California. Among its claims, Harris asserted that West Bay was liable under California’s prompt payment statutes for failure to timely pay Harris. Read the court decision
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Reprinted courtesy of Roger Hughes, Wendel Rosen Black & Dean LLP
Mr. Hughes may be contacted at rhughes@wendel.com

EPA Expands Energy Star, Adds Indoor airPLUS

February 05, 2015 — Beverley BevenFlorez-CDJ STAFF
Builder Magazine reported that the EPA has added a new energy certification program, Indoor airPLUS. Builder Beazer Homes has “embraced the initiative,” according to Builder, and all of its homes in the Phoenix division is Indoor airPLUS certified. Brian Shanks, purchasing manager for Beazer, explained to builder about some of the additional requirements: “It requires some additional air-sealing techniques and other HVAC and ventilation things.” According to Builder, the indoor air quality program is designed to especially help those who suffer from respiratory issues. Read the court decision
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Build, Baby, Build. But Not Like This, Britain.

March 04, 2024 — Matthew Brooker - Bloomberg
The UK needs to do a lot more building. A lack of access to physical and digital connections is holding back the economy, the government says. Besides tackling the housing crisis, the country has to construct more roads, railways, wind farms and reservoirs to open up opportunity and drive productivity. The only problem is that Britain is notoriously inept at delivering infrastructure projects on time and within budget. The advantage of doing things badly is that at least you get to learn from your mistakes — in theory. Updates this month have offered some illuminating insights into two of the biggest civil-engineering undertakings in the country: High-Speed Rail 2, better known as HS2, and Hinkley Point C, which will be Britain’s first new nuclear power station since 1995. Here are five lessons that can be drawn from the issues encountered by two projects with a combined bill that’s likely to exceed £100 billion ($127 billion): Don't take budgets too seriously — especially at the start. Fixing an initial budget that was too low may have done much to feed later perceptions that HS2’s costs were spiraling out of control. The original estimate for the expanded train network was set too early and based on “very immature data,” Jon Thompson, appointed executive chair of High Speed 2 Ltd. in February last year, told the House of Commons transport committee. Numbers get more accurate and reliable as work progresses and the quality of information improves. What were viewed as cost blowouts partly reflected this process. The effect was unfortunate, undermining political support for HS2 and providing cover for cutbacks that have reduced the network to a single line between London and Birmingham that fails to fulfill most of its original purpose. To avoid this problem: Stick to a range rather than a single figure, and make sure people understand the uncertainties inherent in early-stage estimates. Read the court decision
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Reprinted courtesy of Matthew Brooker, Bloomberg

No Third-Quarter Gain for Construction

November 18, 2011 — CDJ STAFF

The Associated Builders and Contractors released their analysis of construction work under contract and found that there was no increase in construction backlog from the second quarter of 2011. There was still improvement, however, over 2010, as the third quarter backlog is 16.3 percent higher than that of a year ago.

The current backlog is 8.1 months, which according to Anirban Basu, the chief economist of the ABC, “is consistent with flat construction spending.” He noted that less than 8 months indicated a decline.

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Kushners Abandon Property Bid as Pressures Mount Over Conflicts

May 10, 2017 — David Kocieniewski & Caleb Melby - Bloomberg
A company owned by the family of Jared Kushner, President Donald Trump’s son-in-law, has abandoned plans to buy a sprawling industrial site in New Jersey from Honeywell International Inc., a major federal contractor, and develop it into a residential community. Kushner Cos. had been the leading bidder for the 95-acre formerly contaminated site known as Bayfront, which is co-owned by Honeywell and Jersey City, city officials said. The company had submitted plans to build as many as 8,100 housing units to be marketed to Orthodox Jewish residents of the Williamsburg section of Brooklyn who are being priced out of that neighborhood. Last fall, the Kushners bid about $150 million, tens of millions higher than competitors, according to people involved in the negotiations. Honeywell heard from others who would only make an offer once the environmental approvals for the cleaned-up site were final. So the bidding is scheduled to reopen later this year and Kushner Cos. had been expected to continue in the process, the people said. But on Tuesday, when Bloomberg News asked about Bayfront, company spokesman James Yolles said the Kushners are no longer pursuing the project. He wouldn’t elaborate or explain. Reprinted courtesy of David Kocieniewski, Bloomberg and Caleb Melby, Bloomberg Read the court decision
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