Cambridge Massachusetts Building Expert Directory

Attorney Writing Series on Misconceptions over Construction Defects

June 28, 2013 — CDJ STAFF
Mark Wiechnik, a litigation partner at Herrick, Feinstein LLP, has started a seven-part series in which he looks at the misconceptions homeowner board members have when they’re facing construction defect lawsuits. He opens by setting the scene of unit owners “complaining of leaks, roof problems, mold and myriad of other issues”, but conflicting views on what to do about them. In his series, he looks at some of the most common mistaken assumptions and discusses how board members should respond. Wiechnik’s first misconception examined is the claim that “we should file a homeowners warranty claim right away!” He notes that this is “rarely a good idea,” since if the building is more than two years old, the warranty will only be worthwhile if the building is near collapse. He also notes that once you file a warranty claim, “the association is precluded from ever filing a lawsuit on that issue.” Additionally, Wiechnik points out that filing a warranty claim puts everything into the hands of an arbitrator, who gets control of the whole process and whose decision is final, whether the association is happy with the results. Further, he notes, “the program favors builders and contractors over the homeowners.” In his second section, he looks at the fears that if the developer is bankrupt, there is no point is suing. Here he notes that the money for repairs does not come from the developer, but “from the developer’s and subcontractor’s insurance carriers.” Read the court decision
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Florida Duty to Defend a Chapter 558 Right to Repair Notice

July 30, 2015 — Scott Patterson – CD Coverage
In Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Co., 2015 WL 3539755 (S.D. Fla. 2015), Altman was the general contractor for a residential condominium project. The condominium association served Altman with Chapter 558 notices. A Chapter 558 notice is a statutory prerequisite to a property owner’s construction defect lawsuit and provides the contractor with an opportunity to respond and avoid litigation. Altman demanded that its CGL insurer, Crum & Forster, provide a defense to the Chapter 558 notices by hiring counsel to represent Altman’s interests. While not disputing that the claimed defects may be covered under the policy, Crum & Forster denied any duty to defend against the notices on the basis that they did not constitute a “suit.” Altman filed suit. Read the court decision
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Reprinted courtesy of Scott Patterson, CD Coverage

Drowning of Two Boys Constitutes One Occurrence

August 06, 2014 — Tred R. Eyerly – Insurance Law Hawaii
When two boys drowned at a summer camp, the issue arose as to whether there were one or two occurrences. Fellowship of Christian Athletes v. AXIS Ins. Co., 2014 U.S. App. LEXIS 13176 (8th Cir. July 11, 2014). The two boys could not swim, and their camp permission forms indicated that they were non-swimmers. One night, the Fellowship of Christian Athletes (FCA) had a pool party. After the party, the FCA staff realized the two boys were missing. They had drowned, and their bodies were found lying side-by-side at the bottom of the deep end of the pool. The death certificate for one boy listed the time of death as 10:44 p.m., while the other boy's time of death was listed as 10:42 p.m. The FCA was insured under three policies. AXIS Insurance Company insured FCA under a CGL policy with $1 million limits per occurrence and $5 million in the aggregate. The FCA also had two umbrella policies, one issued by Ironshore Speciality Insurance Company, which provided up to $10 million in coverage in excess of Axis's policy. Under the second umbrella policy, RSUI Indemnity Company covered up to $5 million in excess of the Axis and Ironshore policies. 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

CGL Coverage for Liquidated Damages and the Contractual Liability Exclusion

October 09, 2023 — Stu Richeson - The Dispute Resolver
Liquidated delay damages are common in construction contracts and are generally imposed when a contractor fails to achieve substantial completion within the time required by the contract. While contracts like the AIA A201-2017 have provisions for extending the time to achieve substantial completion when delays are caused by circumstances beyond the contractor’s control, delays can result from factors other than improper management or planning and the like, for which the owner is not required to give the contractor additional time. Courts are split on whether there is ever coverage under a CGL policy for contractually agreed upon liquidated delay damages. Liquidated delay damages are often excluded under the contractual liability exclusion of most CGL policies. The contractual liability exclusion excludes coverage for “liability for which the Insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement.” Courts often find the contractual liability exclusion in a CGL policy precludes coverage for liquidated delay damages, because such damages are contractual in nature and are triggered by the failure to bring the contract to substantial completion by a fixed deadline, regardless of the cause of the delay. However, some courts will look to the cause of the delay and find that there is coverage under a CGL policy for liquidated delay damages that are the result of property damage caused by an accident or occurrence. In Clark Const. Grp., Inc. v. Eagle Amalgamated Serv., Inc., 01-2478-DV, 2005 WL 2092998, at *1 (W.D. Tenn. Aug. 24, 2005) a general contractor entered a contract for the renovation of the convention center in Memphis. Part of the project included the demolition of a structure attached to the convention center. The demolition work was improperly performed by a subcontractor and resulted in damage to the convention center. Read the court decision
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Reprinted courtesy of Stu Richeson, Phelps
Mr. Richeson may be contacted at stuart.richeson@phelps.com

Lawmakers Strike Deal on New $38B WRDA

January 09, 2023 — Tom Ichniowski - Engineering News-Record
Key Senate and House leaders have reached a bipartisan agreement on a new Water Resources Development Act (WRDA) that would authorize more than $37 billion in federal funds for 25 new and five modified Army Corps of Engineers flood and hurricane protection, harbor dredging and other civil works projects across the U.S. Reprinted courtesy of Tom Ichniowski, Engineering News-Record Mr. Ichniowski may be contacted at ichniowskit@enr.com Read the full story... Read the court decision
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City Drops Impact Fees to Encourage Commercial Development

November 08, 2013 — CDJ STAFF
The Orvido, Florida city council wants to encourage commercial development, and they’re willing to do it by discouraging residential development. The impact fees for commercial buildings have dropped sharply, the Orlando Sentinel notes that for a 50,000 square-foot office building, the city is reducing the impact fee from $2,890 to $1,575, a drop of $1,313, nearly half. Meanwhile, the impact fee for single-family homes has seen an increase of seven percent, going from $3,195 to $3.433. The city is clear about its reasons. “We’re very heavy on the residential side. We want to have more high-paying jobs come into the city,” said Keith Britton, a member of the council. Read the court decision
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What to Do Before OSHA Comes Knocking

December 19, 2018 — Parker Rains - Construction Executive
Every year, the U.S. Occupational Safety and Health Administration (OSHA) inspects workplaces around the country for safety and occupational hazards. In 2017 alone, OSHA conducted 32,408 inspections – more than half of which were unprogrammed inspections. There are six reasons OSHA might come knocking on the door. They are (in order of priority):

imminent danger situations;
severe injuries and illnesses;
worker complaints;
referrals;
targeted inspections; and
follow-up inspections.

Reprinted courtesy of Parker Rains, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Rains may be contacted at prains@fbbins.com

North Dakota Universities Crumble as Oil Cash Pours In

August 27, 2014 — Jennifer Oldham – Bloomberg
North Dakota is struggling to finance deteriorating public universities even as it experiences the biggest energy boom in its history, raising concern that less prosperous states will face more serious funding challenges. Students returning this week will attend classes in buildings without adequate ventilation or fire detection systems and in historic landmarks with buckling foundations. A space crunch is making it difficult for researchers to obtain grants and putting the accreditation of several programs at risk, administrators say. “It’s embarrassing,” said North Dakota state Representative Kathy Hawken, a Republican from Fargo who sits on the higher education funding and budget committees. “We have a divided legislature on higher ed: Some think we put too much money into it and some think we don’t put enough. Buildings aren’t people, so we don’t put dollars there.” Read the court decision
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Reprinted courtesy of Jennifer Oldham, Bloomberg
Ms. Oldham may be contacted at joldham1@bloomberg.net

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