Cambridge Massachusetts Building Expert Directory

Conflicting Exclusions Result in Duty to Defend

October 21, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Seventh Circuit affirmed the district court's finding that the insurer had a duty to defend in light of conflicting endorsements in the policy. Panfil v. Nautilus Ins. Co., 2015 U.S. App. LEXIS 14621 (7th Cir. Aug. 20, 2015). JRJ Ada, LLC was a contractor. JRJ's two members, Joe Panfil and Renee Michelon, had a CGL policy with Nautilus. The employee of JRJ's subcontractor, Astro Insulation, fell through a hole while performing insulation work, injuring himself. The employee sued JRJ, who sought a defense from Nautilus. Nautilus refused to defend because JRJ was not an insured under the policy. Further, Nautilus relied upon the policy's Contractor-Subcontrated Work Endorsement and Employee Exclusion to deny coverage. Panfil and Michelon sued Nautilus. Cross-motions for summary judgment were filed and the court granted plaitniffs' motion while denying Nautilus' motion. The district court first found that the policy should be reformed to inlcude JRJ as an insured. Nautilus did not appeal this determination. The court also found that Nautilus breached its duty to defend and was therefore estopped from asserting policy defenses to 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

City of Seattle Temporarily Shuts Down Public Works to Enforce Health and Safety Plans

April 13, 2020 — Masaki J. Yamada - Ahlers Cressman & Sleight Blog
The Governor’s Stay Home, Stay Safe Order mandates that essential businesses must establish and implement social distancing and sanitation measures established by OSHA and the WA State DOH:

OSHA and the OSHA Guidelines for Employers;
Washington State DOH (referring to the CDC guidance).

With construction work continuing on essential construction projects, some jurisdictions, such as the City of Seattle, are taking additional steps to enforce and oversee the establishment and implementation of updated Health and Safety plans on construction projects. The City of Seattle’s Mayor Jenny Durkan announced yesterday a two-day temporary suspension of Public Works construction beginning on Thursday, April 9th, to conduct health and safety training for workers and update protocols. The announcement may be viewed here. The City of Seattle also sent a letter in this regard and asked all contractors and owners provide project-specific responses to the Washington Building Trades COVID-19 Construction Industry Emergency Requirements. Herein are the links to the letter and attached requirements. Read the court decision
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Reprinted courtesy of Masaki J. Yamada, Ahlers Cressman & Sleight
Mr. Yamada may be contacted at masaki.yamada@acslawyers.com

NJ Transit’s Superstorm Sandy Coverage Victory Highlights Complexities of Underwriting Property Insurance Towers

February 24, 2020 — Traub Lieberman
In New Jersey Transit Corp. v. Certain Underwriters at Lloyd’s, London, 2019 WL 6109144 (N.J. App. Div. Nov. 18, 2019), New Jersey Transit (“NJT”) defeated the claim of several of its insurers that a $100 million flood sublimit applied to its Superstorm Sandy damages and recovered the full $400 million limits of its property insurance tower. The decision is a big win for the beleaguered transit agency, and for insurance professionals working with complex insurance towers, the decision highlights critical underwriting issues that can dramatically affect the amount of risk transferred by the policyholder or assumed by the insurer. In NJ Transit, NJT secured a multi-layered property insurance program providing $400 million in all-risk coverage. The first and second layers provided $50 million each, the third and fourth layers provided $175 million and $125 million, respectively, with several insurers issuing quota shares in each layer. The program contained a $100 million flood sublimit, and “flood” was defined to include a “surge” of water. The program did not contain a sublimit for damage caused by a “named windstorm,” which was defined to include “storm surge” associated with a named storm. After NJT made its Superstorm-Sandy claim, some of the third- and fourth-layer insurers advised NJT that the $100 million flood sublimit applied to bar coverage under their policies. NJT sued these excess insurers and won at the trial and appellate levels. In holding that the $100 million flood sublimit did not apply, the court applied the rule of construction that the specific definition of “named windstorm,” which included the terms “storm surge” and “wind driven water,” controlled over the policies’ more general definition of “flood.” In ascertaining the parties’ intent, the court noted that the omission of the term “storm surge” in the definition of “flood” evidenced an intention that the flood sublimit would not apply to storm surges. Based on this finding, the court rejected several arguments made by the insurers that other policy provisions evidenced the parties’ intent to apply the flood sublimit to all flood-related losses, regardless of whether the loss was caused by a storm surge. Read the court decision
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Reprinted courtesy of Traub Lieberman

Construction Legislation Likely to Take Effect July 1, 2020

April 27, 2020 — Christopher G. Hill - Construction Law Musings
Coronavirus is dominating the news and planning for the effects of COVID-19 is a big deal for construction companies in the Commonwealth. However, these issues, though immediate, are not the only ones that have popped up here at the beginning of 2020. Several bills that I have been monitoring (here and here) have recently passed both the House of Delegates and the Virginia Senate and are on their way to the Governor for signature (a signature that is most likely going to happen in each case). Among those bills that did not pass are a bill that would have eliminated right to work in Virginia and allowed so called “closed shops” as well as fair share fees legislation that would have required those that were not part of a union to pay certain portions of union expenses. 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

Ninth Circuit: Speculative Injuries Do Not Confer Article III Standing

February 28, 2018 — Omar Parra and Lawrence S. Zucker II – Publications & Insights
As Dwight Schrute of hit NBC show “The Office” said, “identity theft is not a joke, Jim! Millions of families suffer every year!” In response, Congress has passed a variety of legislation over the years aimed at curbing identity theft. One such piece of legislation, the Fair Credit Reporting Act (“FCRA”), as amended by corollary acts, prohibits the printing of more than the last 5 digits of the credit card number or the credit card number’s expiration date on any sales receipt. Anyone who “willfully fails to comply with [the requirements] is liable to that consumer” for statutory or actual damages, attorney’s fees and costs, and potential punitive damages. But is a statutory violation of the FCRA alone a sufficient injury to confer Article III standing? No, says the Ninth Circuit. Reprinted courtesy of Omar Parra, Haight, Brown & Bonesteel LLP and Lawrence S. Zucker II , Haight, Brown & Bonesteel LLP Mr. Parra may be contacted at oparra@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Reprinted courtesy of

Payne & Fears LLP Recognized by U.S. News & World Report and Best Lawyers in 2023 “Best Law Firms” Rankings

November 28, 2022 — Payne & Fears LLP
Payne & Fears LLP is pleased to announce that the firm has been recognized by U.S. News & World Report and Best Lawyers 2023 “Best Law Firms” list. Firms included in the 2023 edition of U.S. News – Best Lawyers “Best Law Firms” are recognized for professional excellence with consistently impressive ratings from clients and peers. This includes the top 5% of private practicing lawyers in the United States. Payne & Fears LLP has been ranked in the following practice areas:

Commercial Litigation
Employment Law – Management
Insurance Law
Labor Law – Management
Litigation – Labor & Employment
Litigation – Real Estate
Litigation – Intellectual Property

Additionally, on August 15, 2022, 11 of our attorneys were selected for inclusion in The Best Lawyers in America® 2023. Collectively bringing decades of experience and dedication to their practice, Jeffrey K. Brown, Daniel F. Fears, Daniel M. Livingston, Thomas L. Vincent, Benjamin A. Nix, James L. Payne, Scott S. Thomas, and Kelby Van Patten received this respected achievement. Additionally, Leilani E. Jones, Sarah J. Odia, and Matthew C. Lewis were included in Best Lawyers: Ones to Watch 2023. Read the court decision
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Reprinted courtesy of Payne & Fears LLP

Building Materials Price Increase Clause for Contractors and Subcontractors – Three Options

June 21, 2021 — William L. Porter - Porter Law Group
With the arrival of inflation come concerns regarding increases in the price of building materials within the construction industry. Contractors, subcontractors and others who contract to perform construction work can suffer significant losses when the prices they must pay for materials rises significantly between the time they sign the contract and actually purchase the materials. The general rule is that, unless there exists a contract clause allowing contractors or subcontractors to pass significant price increases for materials on to others, contractors and subcontractors are stuck with the price stated in the contract or subcontract. When prices rise, the contractor or subcontractor eats the difference. Rising prices can thus turn a profitable project into a catastrophic failure. How are contractors and subcontractors to protect themselves? Once a contract is executed, there is usually little that can be done to change the document to address rising prices. Effort must therefore turn to future protection. The best technique for dealing with increasing future prices for building materials is by adding a price escalation clause to contracts and subcontracts. While this will not help for past contracts or subcontracts, it can certainly offer significant protection going forward. Read the court decision
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Reprinted courtesy of William L. Porter, Porter Law Group
Mr. Porter may be contacted at bporter@porterlaw.com

Don’t Waive Your Right to Arbitrate (Unless You Want To!)

October 19, 2017 — David Adelstein - Florida Construction Legal Updates
Does your construction contract require you to arbitrate (instead of litigate) disputes arising out of the contract? If so, and you want to arbitrate, you do NOT want to do anything inconsistent or adverse with your right to arbitrate. Arbitration can be waived and you do not want arbitration to be waived if you believe this is the best forum to resolve your construction dispute. For instance, actively participating in a lawsuit through the prosecution or defense of issues in the lawsuit is certainly inconsistent with your right to arbitrate. This will result in a waiver of your right to compel arbitration. In a non-construction dispute—a dispute involving a law firm and its former partner—the law firm sued the partner. Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly D2165b (Fla. 2d DCA 2017). There was a partnership agreement that required disputes to be resolved by arbitration. The law firm sued the partner claiming he violated a previously entered employment agreement that did not require arbitration. When the partner counterclaimed, the law firm claimed that the counterclaim must be compelled to arbitration because the counterclaim arose out of the partnership agreement that required arbitration. Guess what? The trial court actually compelled the counterclaim to arbitration! Crazy! Clearly, any employment agreement and partnership agreement were intertwined such that the dispute would involve the same set of facts and any claims would have a significant relationship to the partnership agreement. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES