Cambridge Massachusetts Building Expert Directory

Some Construction Contract Basics- Necessities and Pitfalls

January 03, 2022 — Christopher G. Hill - Construction Law Musings
Recently, I’ve been on an “advising” kick here at Construction Law Musings. My last two posts have been about communication and trusting your gut when it comes to a smooth construction project. This post will be the third in the trilogy (and who knows maybe I’ll have a 4th and 5th like the Hitchhiker’s Guide to the Galaxy “trilogy”). While all construction contractors should use their communication skills and instincts to assure a smooth and hopefully profitable project, all of the gut following and great communication will not help you if your contract is not up to snuff. In the spirit of giving you a few basics things to look at, here’s my list of three basics that you need in your contract and a three things to be on the lookout for in others’ contracts. First, the good stuff that needs to be there:

Attorney Fees Clause– without it, a Virginia court (and most other courts) will not award you a judgment for any attorney fees spent to protect your rights.
Dispute Resolution– whether the specified resolution is through the litigation process, ADR or some combination, such a clause or paragraph will only help define the parameters of what happens with a claim.
Detailed scope of work– Without the proper detail in the scope of work, the parties cannot properly set expectations and know what happens when things change.

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Is a Text a Writing?

June 10, 2024 — Michael Yelle - Ahlers Cressman & Sleight PLLC
Is a text message a writing? Project communication is constantly evolving, and text messages are an increasingly common way teams share pictures, video, and provide project updates. When texting is part of the communication flow on a project, contractors and owners might text approvals for extra work, notices of changed conditions, or other information that could be a basis for a change order. In a text exchange about a compensable event, the notice, reply, and approval are all saved on the phone. But contracts often contain specific requirements for a contractor or subcontractor to request changes and authorization to proceed may be specifically required in writing. For example, the Associated General Contractors of Washington – 2018 Standard Subcontract says the “Subcontractor shall make no claims for extras unless the same shall be agreed upon in writing by Contractor prior to performance of any such extra work.” (emphasis added). The AGC subcontract doesn’t define “writing,” so the subcontractor and contractor might wonder if a text message exchange about a potentially compensable event was an “agreement in writing.” Read the court decision
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Reprinted courtesy of Michael Yelle, Ahlers Cressman & Sleight PLLC
Mr. Yelle may be contacted at michael.yelle@acslawyers.com

Applying Mighty Midgets, NY Court Awards Legal Expenses to Insureds Which Defeated Insurer’s Coverage Claims

February 10, 2020 — Anthony L. Miscioscia & Timothy A. Carroll - White and Williams LLP
Is an insured (or putative insured) entitled to recover its legal expenses if it is successful in coverage litigation? In some states, no. In many other states, yes – based on either a statute or the common law. In New York, an insured may recover such expenses if it was “cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations,” and, while forced into that posture, the insured defeats the insurer’s claim. Mighty Midgets, Inc. v. Centennial Ins. Co., 389 N.E.2d 1080, 1085 (N.Y. 1979). As a corollary to that rule, the insured is not entitled to its expenses “in an affirmative action brought by [the insured] to settle its rights. . . .” Id. at 1085. Earlier this week, the New York federal court in United Specialty Ins. Co. v. Lux Maint. & Ren. Corp., 2019 U.S. Dist. LEXIS 201805 (S.D.N.Y. Nov. 20, 2019) became the latest to apply the Mighty Midgets rule, awarding several insureds their legal expenses after defeating the insurer’s declaratory judgment action. In Lux, the CGL insurer of a façade-renovation contractor sued the contractor (its named insured) and several owners of a hospital (putative additional insureds) at which the façade-renovation work took place, claiming that the insurer did not owe a defense or indemnity to any of those companies in connection with an underlying bodily injury action brought by an employee of the contractor who was injured while performing the work. The insurer and the putative additional insureds filed cross-motions for summary judgment on the coverage issues, with the putative additional insureds also seeking to recover their legal expenses for defending against the insurer’s action. The U.S. District Court for the Southern District of New York concluded that, based on the contractor’s agreement to provide coverage for the hospital owners, and a comparison between the underlying allegations and the policy, the insurer owed the hospital owners coverage as additional insureds to the contractor’s policy; the court also concluded that the insurer owed coverage for the contractor’s contractual defense and indemnity obligations to the hospital owners. After concluding that the insurer’s claim that it did not owe coverage lacked merit, the court turned to the additional insureds’ request for their legal expenses. The court examined the “well settled” rule under New York law “that an insured cannot recover his legal expenditure in a dispute with an insurer over coverage, even if the insurer loses and is obligated to provide coverage,” but also New York’s “limited exception” to that rule, “under which an insured who is ‘cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations, and who prevails on the merits, may recover attorneys’ fees incurred in defending against the insurer’s action.’ ” Lux, 2019 U.S. Dist. LEXIS 201805, at *18 (quoting Mighty Midgets, 389 N.E.2d at 1085). Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Timothy A. Carroll, White and Williams Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Mr. Carroll may be contacted at carrollt@whiteandwilliams.com Read the court decision
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Circuit Court Lacks Appellate Jurisdiction Over Order Compelling Appraisal

August 21, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventh Circuit determined it lacked appellate jurisdiction over an order issued by the district court compelling an appraisal. Breakwater Commons Association, Inc. v. Empire Indem. Ins. Co., 2023 U.S. App. LEXIS 14459 (11th Cir. June 9, 2023). Following Hurricane Irma, Breakwater Commons Association filed a claim with Empire Indemnity Insurance Company for property damage. Empire agreed to cover some of the damage to buildings, but a dispute arose over the amount of loss. Breakwater sought to invoke the appraisal provision in the policy. Empire refused to engage in an appraisal. Breakwater sued, and filed a motion to compel appraisal and to stay the proceedings pending the completion of the appraisal process. 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

Massive Fire Destroys Building, Firefighters Rescue Construction Worker

March 26, 2014 — Beverley BevenFlorez-CDJ STAFF
A “5-alarm fire burned down a residential building under construction in the Montrose area” of Houston, Texas, reported Click 2 Houston. Almost 200 emergency personnel were on the scene. Captain Ruy Lozano told Click 2 Houston that “firefighters worked to contain the blaze, before the imminent collapse because the fire suppression systems were not yet in place for the under-construction building.” ABC News reported that fire fighters rescued Curtis Reissig, a construction worker from the fire. “It’s burning my eyes, my throat. I can’t breathe and I can’t hardly see anything,” Reissig told ABC News. “I could see a window. I went to that window. Trying to open that window in a panic. I couldn’t get the thing open. Smoke was getting heavier, just trying to get some air.” ABC News reported that Reissig jumped down from a fifth story balcony to a ledge below, where “firefighters pulled him to safety.” Read the full story at Click 2 Houston... Read the full story at ABC News... Read the court decision
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Related’s $1 Billion Los Angeles Project Opens After 15-Year Wait

August 22, 2022 — John Gittelsohn - Bloomberg
It’s taken 15 years — longer than the time to finish Manhattan’s Hudson Yards — for Related Cos. to complete the Grand LA, a $1 billion hotel, residential and retail complex designed by star architect Frank Gehry. The Los Angeles hilltop development’s 28-floor Conrad hotel opens July 6, and the first tenants move into a neighboring 45-story apartment tower on July 15. The retail section — a mall-like space between the two towers for restaurants and boutiques — debuts in 2023. Grand LA rises across Grand Avenue from Gehry’s aluminum-clad Walt Disney Concert Hall, home of the Los Angeles Philharmonic. Nearby palaces of culture include the Dorothy Chandler Pavilion, the Ahmanson Theatre, the Broad art museum, Los Angeles Museum of Contemporary Art and the Colburn School, a music and dance academy. Read the court decision
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Reprinted courtesy of John Gittelsohn, Bloomberg

Fire Tests Inspire More Robust Timber Product Standard

March 22, 2018 — Nadine M. Post– ENR
Based on recent fire test results, mass timber groups have adjusted product certification standards to require the use of cross-laminated timber with structural adhesives tested to demonstrate better fire performance. Read the court decision
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Reprinted courtesy of Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com

BWB&O is Recognized in the 2024 Edition of Best Law Firms®!

November 16, 2023 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is honored to announce the firm has been recognized for its fourth consecutive year in the 2024 edition of Best Law Firms® and is ranked by Best Lawyers® regionally in three practice areas. To read the publication, please click here. Regional Tier 1 Las Vegas: Litigation – Construction Orange County: Litigation – Construction Regional Tier 2 Orange County: Family Law Regional Tier 3 Orange County: Commercial Litigation Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

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