CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

COVID-izing Your Construction Contract

December 21, 2020 — Frederick E. Hedberg - Construction Executive
The global COVID-19 pandemic has changed the world forever, disrupting many industries, as well as creating unprecedented challenges that threaten many businesses. The construction industry is no different. Projects throughout the country have been adversely affected by unplanned work stoppages, delays, disruptions to the supply chain, price escalations and other unanticipated events. It is critical that owners, developers, contractors and suppliers learn from their experiences over the past year and account for the COVID-19 pandemic when drafting and negotiating contracts for their projects. First and foremost, parties should clearly define their rights and responsibilities to properly manage risks due to COVID-19 and its impacts. COVID-19 and other key related terms should be defined, relying on the CDC and state governments for guidance, to eliminate any uncertainties. The contract should also identify executive orders, guidelines and regulations that have been issued concerning COVID-19 by states, municipalities and other authorities that have jurisdiction where the project is located. Reprinted courtesy of Frederick E. Hedberg, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Hedberg may be contacted at fhedberg@rc.com Read the court decision
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Repairs Commencing on Defect-Ridden House from Failed State Supreme Court Case

October 15, 2014 — Beverley BevenFlorez-CDJ STAFF
In the Windmill Harbour area of Hilton Head Island, South Carolina, Danielle Smith is repairing her home after “spending almost $25,000 on unsuccessful legal battles and two years to secure a loan,” according to the Beaufort Gazette. The contractor who custom built the home was unlicensed, and “[t]he synthetic stucco used to build the house was faulty, causing water damage throughout that will cost $500,000 and six months to repair.” Back in 2008, Smith’s case reached the state Supreme Court. The court ruled against her, reasoning “that the former owner, who had hired subcontractors to build the house, could not be held liable for the damage because he built it as a private home and had originally intended to never sell it.” Read the court decision
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Adjuster's Report No Substitute for Proof of Loss Under Flood Policy

July 30, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The insured's claim for flood coverage was denied when the insurer refused to accept an adjuster's report submitted without a proof of loss. Jackson v. Fid. Nat'l Ins. Co., 2015 U.S. Dist. LEXIS 66589 (E.D. La. May 21, 2015). Plaintiff's property was damaged by Hurricane Isaac. Defendant Fidelity provided flood coverage for the property through the National Flood Insurance Program (NFIP). After plaintiff submitted a flood claim, she executed a proof of loss for $53,803.02. A second proof of loss for contents was submitted in the amount of $26,556.13. Fidelity paid both these claims. Thereafter, an adjuster's estimate of plaintiff's damages, totaling $284,332.91, was submitted to Fidelity. Plaintiff did not submit a supplemental proof of loss for this claim. Fidelity refused to pay the claim and plaintiff filed suit. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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The Prompt Payment Rollercoaster

February 23, 2016 — Garret Murai – California Construction Law Blog
This past year we wrote about a case involving California’s prompt payment laws and the current state of confusion with the prompt payment statutes which are scattered throughout the state Code and which are inconsistent in the use of their terminology and, thus importantly, application. In United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., California Court of Appeals for the Second District, Case No. B258860 (December 18, 2015), the Court of Appeals for the Second District addressed whether under one of the prompt payment statutes, Civil Code section 8814, a general contractor may withhold retention without being subject to prompt payment penalties if there is a dispute of any kind between the general contractor and the subcontractor, or only when the dispute relates to the retention itself. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Bert Hummel Appointed to Chief Justice’s Commission on Professionalism

May 10, 2021 — Bert Hummel - Lewis Brisbois
Atlanta Partner Bert Hummel was recently appointed to the Chief Justice’s Commission on Professionalism (CJCP) for the 2020-2021 term. In this role, Mr. Hummel has assisted in carrying out the charge of the CJCP, namely, to enhance professionalism among Georgia’s lawyers. Mr. Hummel’s appointment follows his participation on the Grants Committee and the Professionalism Committee of the CJCP. In addition, Mr. Hummel was selected as one of seven members of CJCP’s Benham Awards Subcommittee, which recognizes Georgia attorneys who dedicate their practice or time to serving the public and profession. “I am honored to be appointed to a body that continually strives to do so much good for both the legal profession and the community at large. For the past several months, I have appreciated the work the Commission has undertaken to promote professionalism in the practice of law through educational programming while also promoting community service programs through the CJCP’s Grants Committee that I served on as well. I look forward to continuing to serve with my colleagues at the CJCP to promote our shared goals. I also relish the opportunity to serve during a time in which professionalism is of the utmost importance as we navigate through the COVID-19 pandemic made even more unique and special by the fact this is the last year Chief Justice Melton will serve as chair after announcing his retirement from the Supreme Court effective at the end of the Bar year.” Read the court decision
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Reprinted courtesy of Bert Hummel, Lewis Brisbois
Mr. Hummel may be contacted at Bert.Hummel@lewisbrisbois.com

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New Safety Standards Issued by ASSE and ANSI

March 28, 2012 — Melissa Brumback, Construction Law in North Carolina

The American National Standards Institute (ANSI) and the American Society of Safety Engineers (ASSE) have recently announced their approval of two new safety standards to enhance construction site safety.



The two new standards, which are set to take effect during June 2012, are the ANSI/ASSE A10.1-2011 Pre-Project and Pre-Task Safety and Health Planning for Construction and Demolition Operations, and the ANSI/ASSE A10.26-2011 Emergency Procedures for Construction and Demolition Sites.



The new A10.1-2011 standard was designed to assist construction owners, contractors, and designers by ensuring that safety and health planning were standard parts of their pre-construction planning. It is also intended to help owners of construction sites to establish a process for evaluating constructor candidates with regard to their safety and health performance planning.



The A10.26 standard applies to emergency situations, including fires, collapses, and hazardous spills. The standard deals with emergency rescue, evacuation, and transportation of injured workers, and also plans for coordinating with emergency medical facilities ahead of potential disasters.



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Reprinted courtesy of Melissa Dewey Brumback of Ragsdale Liggett PLLC. Ms. Brumback can be contacted at mbrumback@rl-law.com.

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Defeating the Ten-Year Statute of Repose For Latent Construction Defects

January 28, 2015 — The Porter Law Group
It is an all-too-common scenario in California construction: Nine and a half years after completion of a major California construction project, immediately before the 10-year “statute of repose” for suing on “latent” construction defects expires, a lawsuit claiming damages for “recently discovered” latent construction defects is filed. The property owner sues the contractor for the alleged defects. The direct contractor sues all its subcontractors for indemnity and defense. The attorneys spontaneously generate. Experts proliferate. Claimed defects are extrapolated. Four or five years later, after a few dozen attorneys earn a small fortune in fees, the insurance companies make payments. Attorneys collect more fees. The owners take what remains. They repair nothing... and buy vacation homes. Perhaps a cynical view, but there are many in the construction defect world who would reach a similar conclusion. The question is: How can you defeat this seemingly inevitable chain of events? Under a case known as Brisbane Lodging L.P. v. Webcor Builders, Inc. 216 Cal.App 4th 1249 (2013) there may be hope. California Code of Civil Procedure sections 337.1 and 337.15 grant a 10-year “statute of repose” for bringing claims for “latent” construction defects. These statutes allow a lawsuit for such claimed defects to be filed in court up until ten years after the project has been completed. Latent defects are generally defined as those which are “not apparent by reasonable inspection” (CCP §337.15(b)). It is extremely common for such claims to be filed immediately before this 10-year deadline expires. When the lawsuit is brought, the cash register begins to ring. Read the court decision
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Reprinted courtesy of The Porter Law Group

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Under Privette Doctrine, A Landowner Delegates All Responsibility For Workplace Safety to its Independent Contractor, and therefore Owes No Duty to Remedy or Adopt Measures to Protect Against Known Hazards

September 29, 2021 — Krsto Mijanovic, Jeffrey C. Schmid & John M. Wilkerson - Haight Brown & Bonesteel
In Gonzalez v. Mathis (2021 WL 3671594) (“Gonzalez”), the Supreme Court of California held that a landowner generally owes no duty to an independent contractor or its workers to remedy or adopt other measures to protect them against known hazards on the premises. The Court applied the Privette doctrine which establishes a presumption that a landowner generally delegates all responsibility for workplace safety to its independent contractor. (See generally Privette v. Superior Court (1993) 5 Cal.4th 689; SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590.) As such, the independent contractor is responsible for ensuring that the work can be performed safely despite a known hazard on the worksite, even where the contractor and its workers are unable to take any reasonable safety precautions to avoid or protect themselves from the known hazard. In Gonzalez, the landowner, Mathis, had hired an independent contractor, Gonzalez, to clean a skylight on his roof. To access the skylight, Gonzalez needed to utilize a narrow path between the edge of the roof and a parapet wall. While walking along this path, Gonzalez slipped and fell to the ground, sustaining serious injuries. Gonzalez alleged this accident was caused by several dangerous conditions on the roof, including a slippery surface, a lack of tie-off points to attach a safety harness, and a lack of a guardrail. Gonzalez was aware of all of these hazards prior to the accident. Reprinted courtesy of Krsto Mijanovic, Haight Brown & Bonesteel, Jeffrey C. Schmid, Haight Brown & Bonesteel and John M. Wilkerson, Haight Brown & Bonesteel Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com Mr. Schmid may be contacted at jschmid@hbblaw.com Mr. Wilkerson may be contacted at jwilkerson@hbblaw.com Read the court decision
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