CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Of Pavement and Pandemic: Liability and Regulatory Hurdles for Taking It Outside

September 21, 2020 — Jeff Clare - Gravel2Gavel Construction & Real Estate Law Blog
As the COVID-19 pandemic continues to ravage the U.S. economy, restaurateurs and bar owners are feeling the brunt of business closures and adaptations necessary to combat the disease. Where cozy and intimate dining was once de rigueur for the restaurant industry, these businesses must now shift to outdoor dining with adequate space and airflow between parties. In response to these concerns, many cities across the country who once fought against the loss of any parking have turned to a post-automobile tactic: outdoor dining in thoroughfares and parking lots. While at first glance it might seem a simple enough prospect—throw some chairs and a table out front, and voilà—property owners and restaurateurs must remain cognizant of various liability and regulatory hurdles for operating outside. With Great Space Comes Great … Potential Liability. One of the largest concerns for landowners in operating in a new space for business is liability. Who is on the hook if someone gets hurt dining in an impromptu dining space in a parking lot? Prior to beginning new outdoor dining operations, landowners and restaurateurs should contact their insurance providers to ensure that the new space is included in their insurance coverage. This is a particular concern for larger commercial landowners who may have various businesses vying to use their parking lot for business. Many leases have carefully crafted clauses limiting where a business may operate and where their liability ceases. Landowners and business owners should review their leases for any such clauses and negotiate with one another to ensure that liability in these new spaces is clearly defined. Read the court decision
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Reprinted courtesy of Jeff Clare, Pillsbury
Mr. Clare may be contacted at jeff.clare@pillsburylaw.com

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Allegations of Actual Property Damage Necessary to Invoke Duty to Defend

January 17, 2013 — Tred Eyerly, Insurance Law Hawaii

The Fifth Circuit held that under Texas law, conclusory allegations of property damage in the underlying complaint did not trigger the insurer's duty to defend. PPI Tech. Serv., L.P. v. Liberty Mut. Ins. Co., 2012 U.S. App. LEXIS 24571 (5th Cir. Nov. 29, 2012).

Royal Production Company was the lessor and operator of three leases for oil exploration. Royal retained the insured, PPI, as its agent to assist in well-planning and oversee the drilling of wells on the leases.

A well was drilled on one of the three leased areas, but in resulted in a dry hole. It was later discovered that the well had been drilled on the wrong lease. Royal sued PPI for negligence, claiming that PPI caused the drilling rig to be towed to the wrong location, resulting in a dry hole and "property damage." 

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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

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Miller Act CLAIMS: Finding Protections and Preserving Your Rights

November 29, 2021 — Diana Lyn Curtis McGraw - ConsensusDocs
The Miller Act (the “Act”), which requires the prime contractor to furnish a performance bond and a payment bond to the government, protects “all persons supplying labor and materials carrying out the work provided for in the contract.”[1] Despite its broad language, courts have limited the parties who may actually assert a claim under the Act. This article introduces general background of the Act, identifies subcontractors who may qualify for protections under the Act, and suggests ways to preserve the rights as prime contractors. Brief Background of the Miller Act Under the Miller Act, there are two types of bonds the prime contractor furnishes to the government in a federal construction contract of more than $100,000[2] 1. Performance Bond A performance bond protects the United States and guarantees the completion of the project in accordance with the contract’s terms and conditions.[3] This bond must be with a surety that is satisfactory to the officer awarding the contract and in the amount the officer considers adequate for government protection.[4] If a contractor abandons a project or fails to perform, the bond itself will cover the government’s cost of substitute performance. Thus, the performance bond disincentivizes contractors from abandoning projects and provides the government with reassurance that an abandonment will not create delays or additional expenses. Read the court decision
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Reprinted courtesy of Diana Lyn Curtis McGraw, Fox Rothschild LLP
Ms. McGraw may be contacted at dmcgraw@foxrothschild.com

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Remodels Replace Construction in Redding

September 09, 2011 — CDJ STAFF

The Record Searchlight reports that while new construction is down in Redding, California, residential and commercial remodel permits are up 17 percent. By August 2010, there had been 63 housing and commercial business starts in Redding, while this year has seen only 15.

One such remodel, that of Parkview Market, will cost about $201,000. Safeway is planning on two $80,000 remodels of its grocery stores in Redding. In all, the 150 building permits for remodels are worth a total of $2.8 million.

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Court Voids Settlement Agreement in Construction Defect Case

September 01, 2011 — CDJ STAFF

A U.S. District Court Judge in Florida has ruled in favor of a company that sought to void a settlement agreement. The case, Water v. HDR Engineering, involved claims of construction defects at Florida’s C.W. Bill Young Regional Reservoir. The Tampa Bay Water Authority attributed these to both HDR Engineering’s design and Bernard Construction Company which had built the embankment. Bernard Construction filed a complaint against their subcontractor, McDonald.

Tampa Bay Water settled with Bernard Construction and McDonald, in an agreement that set a minimum and maximum settlement, but also would “prohibit Barnard and McDonald from presenting any evidence on several claims and positions of TBW, to require Barnard to call certain witnesses at trial, to preclude Barnard and McDonald from calling other witnesses, and to restrict the filing of trial and post-trial motions.” HDR Engineering moved to void the agreement as collusive.

The judge that the agreement¬? contained “133 paragraphs of ‘Agreed Facts’ that the parties stipulated would survive any order declaring the Settlement Agreement void or unenforceable.” He characterized these as stipulating “that Barnard neither caused nor contributed to TBW’s damages.” HDR motioned that a summary judgment be given to Barnard Engineering.

The court found that “the evidence identified by TBW is patently insufficient to survive summary judgment.” Further, TBW’s expert initially held Barnard responsible for “lenses, pockets, streaks and layers within the embankment,” but then later withdrew this assigning the responsibility to HDR. Further, the court notes that, “TBW’s arguments that lenses, pockets, streaks, and layers in the soil wedge caused or contributed to its damages and that Barnard is liable for those damages have been foreclosed by the Agreed Facts.”

As TBW failed to provide sufficient evidence to withstand summary judgment, the court granted summary judgment, mooted the claim against McDonald, and terminated the agreement between TBW and the other parties.

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Business Risk Exclusions Do Not Preclude Coverage

November 13, 2013 — Tred Eyerly — Insurance Law Hawaii
The court rejected the insurer's arguments that the business risk exclusions barred coverage for a contractor. Gen. Cas. Co. of Wisconsin v. Five Star Bldg. Corp., 2013 U.S. Dist. LEXIS 134122 (D. Mass. Sept. 19, 2013). Five Star was hired by the University of Massachusetts to upgrade the ventilation (HVAC) system on a portion of a building. The large majority of the work involved work in the interior of the building, but a small portion required installation of duct work and supports on top of the roof of the complex. Five Star also penetrated the roof at numerous locations to install supports for duct work and other rooftop structures for the ventilation system. Other subcontractors then secured supports to the concrete roof deck and installed permanent patches where Five Star had penetrated the roofing system. On same days, Five Star could not accomplish the process in a single day after penetrating the roof. It would install temporary patches until the next day. This was the only work on the roof performed by Five Star. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

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The Construction Lawyer as Counselor

June 10, 2019 — Christopher G. Hill - Construction Law Musings
It’s been a while since I discussed the role that I believe a construction lawyer should serve. Back in 2013, I discussed how those of us that practice construction law are seen as “necessary evils.” I was thinking over the weekend about certain clients and matters (as I often do, particularly in the shower) and came to the conclusion that the best role for me as a Virginia construction attorney is that of counselor and sounding board for my clients. Sure I come from a litigation background, enjoy working with other construction lawyers here in the Commonwealth, and often the first contact that I have with clients is when there is a problem, but I enjoy my practice, and I believe clients are more satisfied with their interactions with me when I try and provide a more cost effective and pragmatic solution than that which litigation or arbitration provides. The six years of solo construction practice since 2013 (yes, I’m close to the 9 year mark with my practice) has only served to cement the fact that construction professionals need and want the “counselor” portion of “attorney and counselor at law.” Working as a sort of “in house counsel” to various construction companies, as opposed to simply dealing with the litigation, allows me to better understand their businesses and assist them in avoiding problems through contract review, discussions of situations that come up short of claims, and general risk management. I also get to know these mostly small business owners on a more personal level (sometimes even resulting in a fishing trip or two). 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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Contractor to Repair Defective Stucco, Plans on Suing Subcontractor

February 21, 2013 — CDJ STAFF
The contractor for the Manatee County Judicial Center will be replacing the defective stucco on the building, but they have stated that they intend to go after the subcontractor who initially installed the defective stucco. The contractor, Balfour Beatty LLC, has said they will pay for the repairs, but Steve Holt, an executive of the firm said that “we have initiated a lawsuit against the subcontractor, who we believe was substantially or completely responsible to recover those funds.” Mr. Holt named Commercial Plastering as the subcontractor responsible. Read the court decision
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