Cambridge Massachusetts Building Expert Directory

Strategic Communication Considerations for Contractors Regarding COVID-19

April 06, 2020 — Sarah Skidmore - Construction Executive
The COVID-19 is a worldwide wildcard. Around the globe, organizations are forced to communicate with a wide variety of audiences. Audiences range from employees to customers and vendors—and more. A pandemic of this nature is new for the modern globalized workforce. Societies realize the breadth of international influence involved in a single supply chain now more than ever before. Domestically based organizations realize their place in the larger global system—and the construction industry is a perfect example. Here are key questions for leaders to ponder. 1. Who are your audience groups? In a wildcard situation, organizations are often tasked with communicating to many different audience groups and stakeholders. So, take some time to think beyond the groups that come top-of-mind such as customers, vendors, partners and owners.

Does the organization have any community-based events on the calendar?
Does the organization have professional development sessions on the calendar?
Does the organization have planned maintenance or facilities work scheduled with third parties?
Does the organization have interns or apprenticeship programs with local colleges?

Reprinted courtesy of Sarah Skidmore, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Ms. Skidmore may be contacted at sarah@skidmore-consulting.com

Port Authority Reaches Deal on Silverstein 3 World Trade

June 26, 2014 — David M. Levitt – Bloomberg
The Port Authority of New York and New Jersey approved a financing agreement for Larry Silverstein’s 3 World Trade Center that allows him to use $159 million of insurance proceeds to expedite construction. The agreement, which alters a 2010 deal on the project, follows about a year of negotiations and provides Silverstein with far less than the $1.2 billion of loan guarantees he sought under a previous plan that had been opposed by some board members. Silverstein plans to seek private financing to complete construction on the tower, which is stalled at eight floors. The Port Authority, which owns the Trade Center site, unanimously approved the alterations to the agreement at a meeting today. The new deal meets the criteria of not creating additional debt for the agency, said Commissioner Kenneth Lipper, who led opposition to the loan guarantee, viewing it as too risky and a threat to the authority’s credit rating. Read the court decision
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Reprinted courtesy of David M. Levitt, Bloomberg
Mr. Levitt may be contacted at dlevitt@bloomberg.net

CGL Coverage Dispute Regarding the (J)(6) And (J)(7) Property Damage Exclusions

April 18, 2023 — David Adelstein - Florida Construction Legal Updates
A new insurance coverage opinion dealing with a commercial general liability’s (CGL) duty to defend involved exclusions commonly known as the (j)(6) and (j)(7) property damage exclusions (and in certain policies known as the (j)(5) and (j)(6) exclusions). These are the exclusions that apply during ongoing operations. Exclusion (l), or the “your work” exclusion, applies post-completion, i.e., it is an exclusion for “property damage” to “your work” included in the “products-completed operations hazard.” Exclusions (j)(6) and (j)(7) in the policy at-issue exclude coverage for property damage to:

(j)(6) That particular part of real property on which any insured or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; (j)(7) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Tort Claims Against an Alter Ego May Be Considered an Action “On a Contract” for the Purposes of an Attorneys’ Fees Award under California Civil Code section 1717

April 12, 2021 — Tony Carucci - Snell & Wilmer Real Estate Litigation Blog
California Civil Code section 1717 entitles the prevailing party to attorneys’ fees “[i]n any action on a contract,” where the contract provides for an award of attorneys’ fees to the prevailing party, regardless of whether the prevailing party is the party specified in the contract or not. But what about an action that alleges tort causes of action against an alter ego of a contracting party but that does not include a breach of contract claim against the alter ego? This was the question facing the California Court of Appeal in 347 Group, Inc. v. Philip Hawkins Architect, Inc. (2020) 58 Cal.App.5th 209. In that case, the plaintiff 347 Group sued and obtained a default judgment for breach of contract against defendant Philip Hawkins Architect, Inc. Id. at 211–12. 347 Group had also sued Philip Hawkins individually as well as Design-Build, Inc., the company Hawkins founded after putting Philip Hawkins Architect, Inc. into bankruptcy. Id. at 212. 347 Group originally alleged claims for breach of contract, fraudulent conveyance, and conspiracy against Hawkins and Design-Build, seeking to establish that Hawkins and Design-Build were the alter egos of the contracting party, Philip Hawkins Architect, Inc., but later dismissed the breach of contract claim. Id. Hawkins and Design-Build eventually prevailed on the tort causes of action, and moved for attorneys’ fees. Id. Read the court decision
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Reprinted courtesy of Tony Carucci, Snell & Wilmer
Mr. Carucci may be contacted at acarucci@swlaw.com

Fixing That Mistake

October 25, 2021 — Patrick Barthet - Construction Executive
Someone once said, more people could learn from their mistakes if they weren’t so busy denying that they made them in the first place. In the construction industry, mistakes are not uncommon. Addressing them, however, can be complicated. What should a contractor do when the project owner says some aspect of the project is not satisfactorily completed or isn’t performing as it should? Should the contractor wait, hoping it may get resolved without having to do anything? Or should the contractor take on the repair or replacement as soon as practically possible? Doing nothing may be easy but can expose the contractor to significant subsequent liability. Dealing with the issue, on the other hand, could result in the destruction of what might later be required evidence in any litigation which develops. Considered “spoliation,” such manipulation or elimination of evidence is a consequence to be avoided. Even though done with the best of intentions to fix a problem, the process can wind up exposing one to liability and damages. Reprinted courtesy of Patrick Barthet, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Barthet may be contacted at pbarthet@barthet.com

Make Sure to Properly Perfect and Preserve Construction Lien Rights

December 07, 2020 — David Adelstein - Florida Construction Legal Updates
If you recording a construction lien (referred to as a claim of lien) and looking to perfect your construction lien foreclosure rights, it is imperative that you work with counsel to ensure your rights are properly preserved. This is good practice! A claim of lien must be served on an owner within 15 days after recording. Florida Statute s. 713.08(4)(c) says: “The claim of lien shall be served on the owner. Failure to serve any claim of lien in the manner provided in s. 713.18 before recording or within 15 days after recording shall render the claim of lien voidable to the extent that the failure or delay is shown to have been prejudicial to any person entitled to rely on the service.” Florida Statute s. 713.18, hyperlinked for your review, includes the statutory ways to serve “notices, claims of lien, affidavits, assignments, and other instruments permitted or required under [Florida Statutes Chapter 713].” Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Insurer's In-House Counsel's Involvement in Coverage Decision Opens Door to Discovery

January 11, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The Mississippi Supreme Court held that the insurer must produce written communications from and make available for deposition the in-house counsel who orchestrated the denial of coverage. Travelers Pro. Cas. Co. of Am. v. 100 Renaissance, LLC, 2020 Miss. LEXIS 409 (Miss. Oct. 29, 2020). An unidentified driver struck a flagpole owned by the insured Renaissance, causing $2,134 in damages. Renaissance filed a claim with Travelers for uninsured-motorist coverage. The Travelers' claims handler, Charlene Duncan, determined there was no coverage because the flagpole was not a covered auto. Before corresponding with the insured, Duncan sought legal advice from Travelers' in-house counsel, Jim Harris. Renaissance sued Travelers for coverage and bad faith. Renaissance then took Duncan's deposition and asked that she explain both the denial letter and the reasons Travelers denied the claim. Duncan repeatedly said she did not know the basis of the denial and that she had consulted with Harris. 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

Pennsylvania’s Supreme Court Limits The Scope Of A Builder’s Implied Warranty Of Habitability

September 10, 2014 — Edward A. Jaeger, Jr. and William L. Doerler – White and Williams LLP
In Conway v. Cutler Group, Inc., -- A.3d --, 2014 WL 4064261 (Pa.), the Supreme Court of Pennsylvania addressed the question of whether a subsequent home buyer can recover from a home builder pursuant to the builder’s implied warranty of habitability, a warranty that protects those who purchase a newly constructed home from latent defects. Concluding that a builder’s warranty of habitability is grounded in contract, the Court held that a subsequent purchaser of a previously inhabited home cannot recover damages from a builder-vendor based on the builder-vendor’s breach of the implied warranty of habitability. The Court’s decision leaves unanswered the question of whether a purchaser who is also the first user-purchaser of a new home can pursue a breach of warranty action against a builder with whom the purchaser is not in privity of contract. In Conway, the Cutler Group, Inc. (Cutler) sold a new home to Davey and Holly Fields. The Fields subsequently sold the home to Michael and Deborah Conway. After the Conways discovered water infiltration problems in their home, they filed a one-count complaint against Cutler, alleging that Cutler breached its implied warranty of habitability. In response to the Conways’ complaint, Cutler filed preliminary objections, arguing that the warranty of habitability extends from the builder only to the first purchaser of a newly constructed home. The trial court sustained Cutler’s preliminary objections based on the lack of contractual privity between the parties and the Conways appealed the trial court’s decision. On appeal, the Superior Court reversed, stating that the implied warranty of habitability is based on public policy considerations and exists independently of any representations by the builder, and even in the absence of an express contract between the builder and the purchaser. Cutler appealed the Superior Court’s decision to the Supreme Court. To address the question of whether the implied warranty of habitability extends to a subsequent purchaser of a used residence, the Court discussed the history of the implied warranty of habitability in Pennsylvania. As stated by the Court, the Court adopted the implied warranty of habitability in the context of new home sales to reject the traditional doctrine of caveat emptor (buyer beware) because the purchaser of a new home justifiably relies on the skill of the developer. Thus, as between the builder-vendor and the buyer, the builder should bear the risk that the home he builds is habitable and functional. In adopting the doctrine, the Court noted that the doctrine is rooted in the existence of a contract – an agreement of sale – between the builder-vendor and the buyer. Reprinted courtesy of Edward A. Jaeger, Jr., White and Williams LLP and William L. Doerler, White and Williams LLP Mr. Jaeger may be contacted at jaegere@whiteandwilliams.com; Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com Read the court decision
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