Cambridge Massachusetts Building Expert Directory

More Clear, But Not Yet Crystal: Virginia Amends its Prompt Payment Law and Legislation Banning “Pay-If-Paid Clauses in Construction Contracts Effective July 1, 2023

November 16, 2023 — Hanna Lee Blake - ConsensusDocs
The Virginia General Assembly has joined a minority of jurisdictions that ban pay-if-paid clauses in construction contracts on public and private projects. Senate Bill 550 went into effect applying to contracts executed after January 1, 2023, and most recently has been amended effective July 1, 2023. This update highlights the recent amendments to Virginia’s prohibition against pay-if-paid provisions, of which owners and contractors should be aware to ensure that their contracts comply with developing law in the Commonwealth. Recap on Senate Bill 550 On April 27, 2022, the Virginia General Assembly passed Senate Bill 550, which amended Virginia Code §§ 2.2-4354 and 11-4.6, which govern both public and private sector contracts. In short, SB 550 (as the bill is commonly known) prohibited pay-if-paid clauses, and established fixed deadlines for the payment of invoices on private projects. Previously, Virginia’s Prompt Payment Act only applied to public projects. Read the court decision
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Reprinted courtesy of Hanna Lee Blake, Watt Tieder
Ms. Blake may be contacted at hblake@watttieder.com

Repair of Fractured Girders Complete at Shuttered Salesforce Transit Center

July 22, 2019 — Nadine M. Post - Engineering News-Record
The repair of two fractured girders spanning Fremont Street and the reinforcement of twin girders spanning First Street are complete at the beleaguered Salesforce Transit Center in San Francisco. Reprinted courtesy of Nadine M. Post, Engineering News-Record Ms. Post may be contacted at postn@enr.com Read the court decision
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San Francisco Sues Over Sinking Millennium Tower

November 17, 2016 — Beverley BevenFlorez-CDJ STAFF
Dennis Herrera, San Francisco’s city attorney, filed a lawsuit against the developer of the Millennium Tower, “for failing to inform buyers that it was sinking ‘much faster than expected,’” reported the New York Times. Mission Street Development sold more than 400 units in the skyscraper. “They went ahead and sold condominiums for a handsome profit without telling the buyers about the situation,” Mr. Herrera told the New York Times. “This is every homeowner’s worst nightmare.” The spokesman for the development, P.J. Johnson, stated that “the allegations by the city attorney had ‘no merit,’ and that the “building had sunk within ‘predicted, safe ranges’ during the entire sales process,” according to the New York Times. Furthermore, Johnson asserted that the problem derived from the nearby railroad station removing water from the ground, which “had caused the building to ‘settle beyond the 12 inches it was predicted to settle.’” Read the court decision
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Courthouse Reporter Series: The Travails of Statutory Construction...Defining “Labor” under the Miller Act

August 01, 2023 — Brendan J. Witry - The Dispute Resolver
In a recent case—United States ex rel. Dickson v. Fidelity & Deposit Co. of Maryland (“Dickson”)—the U.S. Court of Appeals for the Fourth Circuit recently re-examined and defined what work qualifies as “labor” under the Miller Act. United States ex rel. Dickson v. Fidelity & Deposit Co. of Maryland, No. 21-160, 67 F.4th 182 (4th Cir. April 26, 2023) (slip op.). Unlike private projects, unpaid subcontractors cannot encumber the federal government’s property with mechanics liens. Instead, the Miller Act provides a remedy for subcontractors in the form of a payment bond on all federal public works contracts exceeding $100,000. 40 U.S.C. § 3131(b). In the Dickson case, Claimant Elliot Dickson served as a subcontractor to Forney Enterprises (“Forney”), with whom the Department of Defense (the “DOD”) contracted to renovate several staircases and the fire suppression systems at the Pentagon. Read the court decision
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Reprinted courtesy of Brendan J. Witry, Conway & Mrowiec Attorneys LLLP
Mr. Witry may be contacted at bjw@cmcontractors.com

When Construction Defects Appear, Don’t Choose Between Rebuilding and Building Your Case

October 11, 2021 — Curtis Martin - ConsensusDocs
When construction defects occur during construction, they intensify pressure from a schedule that may already be tight. Defects must be analyzed, confirmed, removed, and replaced and this can be time consuming. Or course, a construction schedule rarely anticipates defects, demolition, and rework and the owner will still expect the project to be completed on time; however, pressing forward with immediate remediation may have unintended consequences. Before starting demolition, consider the evidentiary doctrine of spoliation. Spoilation occurs when a party destroys or unreasonably deprives another party of evidence and courts have imposed sanctions on a party that deprives an opponent of evidence. The doctrine has historically concerned documents, but its application has extended to electronic data, and courts also apply it to building conditions in construction defects cases. So, before tearing out or fixing defective work, consider the need to allow the opposing party to inspect, test and document it. Imagine this scenario. The concrete in a slab placed by your subcontractor shows low compressive strength results in the 28-day cylinder tests. Tearing out the slab and replacing it will put you at least a month behind schedule and you don’t want to waste any time before removing and replacing it. Nevertheless, while you’re rebuilding the defective slab, be mindful that you are also building a case. If you plan to recover the costs you incur because of the defective concrete from the responsible parties, you should allow the subcontractor (and possibly the concrete supplier and other implicated parties) to examine, preserve, and/or test the work in question. Failure to do so may subject you to spoliation sanctions and jeopardize your right to recover damages. Read the court decision
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Reprinted courtesy of Curtis Martin, Peckar & Abramson
Mr. Martin may be contacted at cmartin@pecklaw.com

Insurers May Not Be Required to Defend Contractors In a Florida §558 Proceeding

November 06, 2018 — Erik Simpson - Gordon & Rees Construction Law Blog
In recent holding, the Florida Supreme Court held that an insurer may not have a duty to defend a contractor in a Florida §558 proceeding. Chapter 558 of the Florida Statutes sets forth procedural requirements which must be met before a claimant may file a construction defect action. These requirements include serving a contractor, subcontractor or supplier with written notice of the claim. The contractor, in turn, must serve a written response to the notice of claim in which the contractor provides either an offer to repair the alleged construction defect at no cost to the claimant, resolution of the claim through a monetary payment, a statement disputing the claim, or a statement that any monetary payment will be determined by the recipient’s insurer. The claimant may file suit if the contractor disputes the claim and refuses to remedy the alleged defect or provide monetary compensation. Read the court decision
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Reprinted courtesy of Erik Simpson, Gordon & Rees
Mr. Simpson may be contacted at esimpson@grsm.com

Payment Bond Surety Entitled to Award of Attorneys’ Fees Although Defended by Principal

February 01, 2023 — Garret Murai - California Construction Law Blog
For contractors involved in California public works projects the scenario is not uncommon: The general contractor awarded the public works project is required to obtain a payment bond for the benefit of subcontractors and suppliers and the payment bond surety issuing the payment bond requires the general contractor to defend and indemnify the surety from and against any claims against the payment bond. In Cell-Crete Corporation v. Federal Insurance Company, 82 Cal.App.5th 1090 (2022), the 4th District Court of Appeal examined whether a payment bond surety, who prevails in a claim against the payment bond, is entitled to statutory attorneys’ fees when the party actually incurring the attorneys’ fees was the general contractor, pursuant to its defense and indemnity obligations, as opposed to the surety itself. The Cell-Crete Case General contractor Granite Construction Company was awarded a public works contract issued by the City of Thermal known as the Airport Boulevard at Grapefruit Boulevard and Union Pacific Railroad Grade Separation Project. We’ll just call it the “Project.” Subcontractor Cell-Crete Corporation entered into a subcontract with Granite for lightweight concrete and related work. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Kahana Feld Welcomes Six Attorneys to the Firm in Q4 of 2023

January 16, 2024 — Linda Carter - Kahana Feld
Kahana Feld is pleased to announce the addition of six attorneys to the team in the fourth quarter of 2023. We are excited to have each of these individuals on the team. In our Houston office, Kahana Feld welcomes Partner Donald Loving II and Attorney Elliott Wright. Mr. Loving is a member of the General Liability and Trucking & Transportation practice groups. He earned his Juris Doctor from the University of Houston and has over 30 years of litigation and trial experience, including working as staff & corporate counsel for several prominent insurance carriers including GEICO, Progressive, USAA and Travelers. Mr. Wright is a member of the Construction Defect, General Liability, and Trucking & Transportation practice groups. He earned his Juris Doctor from SMU Dedman School of Law, and has extensive litigation and insurance defense experience. Read the court decision
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Reprinted courtesy of Linda Carter, Kahana Feld
Ms. Carter may be contacted at lcarter@kahanafeld.com

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