CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

20 Wilke Fleury Attorneys Featured in Sacramento Magazine 2020 Top Lawyers!

August 24, 2020 — Wilke Fleury
Congratulations to Wilke Fleury’s featured attorneys who made the Sacramento Magazine’s Top Lawyer List for 2020! Each attorney has been awarded an accolade in the following practice areas: Kathryne Baldwin – Insurance Dan Baxter – Business Litigation & Government Contracts Adriana Cervantes – Medical Malpractice Heather Claus – Health Care Aaron Claxton – Health Care Dan Egan – Bankruptcy and Creditor/Debtor Samson Elsbernd – Employment & Labor Danny Foster – Litigation Insurance David Frenznick – Construction & Construction Litigation George Guthrie – Real Estate & Construction Litigation Ron Lamb – Medical Malpractice Neal Lutterman – Medical Malpractice Steve Marmaduke – Business/Corporate & Real Estate Gene Pendergast – Estate Planning & Probate Mike Polis – Health Care Matthew Powell – Business Litigation Bianca Samuel – Employment & Labor Shannon Smith-Crowley – Legislative & Governmental Affairs Spencer Turpen – Medical Malpractice Steve Williamson – Business Litigation & Bankruptcy and Creditor/Debtor Read the court decision
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Reprinted courtesy of Wilke Fleury

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Avoiding Disaster Due to Improper Licensing

February 18, 2019 — Candace Matson - Construction & Infrastructure Law Blog
IT’S NOT ENOUGH FOR A CONTRACTOR TO BE LICENSED . . . it must be properly licensed. We are reminded of this by the recent case of JMS Air Conditioning and Appliance Service, Inc. v. Santa Monica Community College District, Bernards Bros., Inc., 30 Cal. App. 5th 945 (2018). In that case, JMS entered into an $8.2M subcontract with Bernards to install an HVAC system in a new facility being built for the District. JMS held a C-20 warm-air heating, ventilating and air-conditioning license. A year into the project, Bernards sought permission from the District to substitute another subcontractor for JMS (as required under Public Contract Code Section 4107 for listed subcontractors on public works of improvement). Among other things, Bernards contended that JMS was not properly licensed to perform that portion of the work which consisted of hydronic plumbing and hydronic boiler work. JMS countered that this work was an integral part of installing an HVAC system, and relied on Business & Profession Code Section 7059, which permits work that is “incidental and supplemental to the performance of the work for which the specialty contractor is licensed,” and a California State Licensing Board regulation which defines “incidental and supplemental” as meaning “essential to accomplish the work in which the contractor is classified.” (Cal. Code Regs., tit. 16, §831.) Read the court decision
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Reprinted courtesy of Candace Matson, Sheppard Mullin
Ms. Matson may be contacted at cmatson@sheppardmullin.com

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Colorado “property damage” caused by an “occurrence” and exclusions j(5) and j(6) “that particular part”

August 11, 2011 — CDCoverage.com

In Continental Western Ins. Co. v. Shay Construction, Inc., No. 10-cv-02126 (D. Col. July 28. 2011), general contractor Milender White subcontracted with insured Shay for framing work.   Shay in turn subcontracted some of its work to others.  When Shay?s subcontractors filed suit against Shay and Milender White seeking payment for their work, Milender White cross-claimed against Shay for breach of contract alleging that,Milender White notified Shay during construction that some of Shay?s work was defective and that when Shay repaired its defective work, it damaged work performed by others.  Shay’s CGL insurer Continental Western filed suit against Milender White and Shay seeking a judicial declaration of no coverage.  The federal district trial court granted Continental Western?s motion for summary judgment.



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Reprinted courtesy of CDCoverage.com

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Negligent Misrepresentation in Sale of Building Altered without Permits

September 30, 2011 — CDJ STAFF

The Supreme Court of New Hampshire has ruled in the case Wyle v. Lees. The Leeses owned a two-unit apartment building in North Conway, New Hampshire. They hired a contractor to add a third, larger apartment, including a two-car garage. The Leeses and their contractor submitted a building permit application. They were informed that site plan review was required. After receiving approval on the site plan, construction started. At no point did they obtain a building permit and the construction was never inspected. The Leeses subsequently added more space to the unit, reducing parking spaces below the minimum required. Again, they did not obtain a building permit.

In 2007, three years after all these changes were complete, the Leeses sold their building to Mr. Wyle. To the question “are you aware of any modifications or repairs made without the necessary permits?” they answered “no.” About six weeks after closing, Wyle “received a letter from the town code enforcement officer regarding the legality of the removal of a garage door from the new unit.” A subsequent inspection revealed “numerous building and life safety code violations.”

Mr. Wyle brought a claim against the Leeses for negligent misrepresentation. The defendants filed a motion “seeking to preclude economic loss damages.” At a two-day bench trial, Mr. Wyle won. The Leeses appealed.

The appeals court found that “the defendants negligently misrepresented that the premises were licensed for immediate occupancy and that the defendants had obtained all necessary permits,” and thus upheld the lower court’s finding of negligent misrepresentation. The appeals court also rejected the Leeses’ argument that damages must be apportioned on all parties, including “the plaintiff himself, the plaintiff’s building inspector, and the defendant’s contractor,” finding a lack of “adequate evidence.”

The Leeses further argued that they were unaware that modifications and repairs were accomplished without the required permits. The appeals court noted that “the trial court found that both the conditional approval and final approval for the site plan stated that a building permit and a certificate of occupancy were required prior to any use.” The court concluded that the Leeses “knew or should have known of the falsity of their representation.”

The appeals affirmed the findings of the trial court.

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Construction Defect Settlement in Seattle

June 28, 2013 — CDJ STAFF
The Seattle Post-Intelligencer reports that a settlement has been reached in the Mosler Lofts construction defect claim. The settlement received by the homeowners was for about $8.5 million, which will used for repairs of the construction defects and for paying their legal costs. Read the court decision
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Lessons from the Sept. 19 Mexico Earthquake

October 19, 2017 — Nadine M. Post - Engineering News-Record
On the 32nd anniversary of the magnitude-8.1 earthquake that devastated Mexico City on Sept. 19, 1985, 41 U.S. seismic experts were in a workshop near Los Angeles, polishing a new tool to identify “killer” buildings: non-ductile concrete structures that often perform poorly in quakes. Suddenly, the attendees started getting pager alerts from the U.S. Geological Survey: A magnitude-7.1 quake had struck about 120 kilometers from Mexico City. Read the court decision
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Reprinted courtesy of Nadine M. Post, ENR
Ms. Post may be contacted at postn@enr.com

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Don’t Waive Too Much In Your Mechanic’s Lien Waiver

December 22, 2019 — Christopher G. Hill - Construction Law Musings
In the past few years, the Virginia General Assembly has, with certain caveats, precluded pre-furnishing waiver of mechanic’s lien rights. While this essentially outlawed the types of mechanic’s lien waiver clauses that pervaded construction contracts in Virginia, the key to the previous sentence is “pre-furnishing.” What the General Assembly left intact were the usual waivers of mechanic’s lien rights typically required to be provided to Owners and others in the payment chain in exchange for payment. These lien waivers come in a few “flavors” from conditional to unconditional, partial to full. Their terms usually include an acknowledgement of receipt of payment (we’ll get to this later), and a statement that the one seeking payment knows of no possible claims by lower tier subcontractors and then waives all mechanic’s lien rights against the property for work performed and included in the request for payment. Often over my years as a Virginia construction attorney, I have noticed that these waivers are often signed without comment or review. They are just part of the process and more often than not are not even an issue for most projects. Of course, if they are an issue they can be a big one, and their terms can come back to bite a claimant that has not properly vetted them. The first potential issue is waiving lien rights while acknowledging receipt prior to actual receipt of the check or wire. Many of the waiver forms that are out there list a payment amount, or possibly simply state that the waiver is in exchange for some small payment, and then state “receipt of which is acknolwedged” or something similar. The issue here is that receipt may not have happened yet because these lien waivers are submitted as part of the payment package in order to get paid in the first place. In short, should you sign the waiver prior to payment, you may have acknowledged a non-event and in the event of non-payment have a written document stating that you waived your claim to a lien for that money. What a court would do with this, I am unsure, but why risk it? My advice, be sure your waiver is contingent on actual clearance of payment as well as receipt. 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

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Where Standing, Mechanic’s Liens, and Bankruptcy Collide

September 17, 2018 — Christopher G. Hill - Construction Law Musings
I have spoken often about mechanic’s liens and the implications of such liens as they relate to bankruptcy here at Construction Law Musings. A recent case out of Loudoun County, Virginia added another wrinkle to this discussion, that of standing and what happens on conveyance of the property and what interest in the property is required to allow a party to seek removal of the mechanic’s lien. In Leesburg Bldg. P’rs LLC v. Mike Berger Inc. the Loudoun County Circuit Court faced the following scenario. Leesburg Building Partners developed certain condominiums and hired Lansdowne Construction to perform the work as general contractor and paid Landsdowne in full for the work. Lansdowne hired Mike Berger, Inc. (“MBI”) to perform concrete work for the project. Landsdowne didn’t pay MBI approximately $48,000.00 and subsequently filed for bankruptcy. MBI, seeking to protect it’s interest in the money it was owed, recorded a mechanic’s lien on the property. Leesburg Building Partners filed an action to declare the lien invalid and have it removed from the property based upon its “payment defense” and the fact that it had paid Landsdowne in full. A relatively simple scenario and one that has been discussed before here at Musings. Not so fast. . . Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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