Cambridge Massachusetts Building Expert Directory

A Court-Side Seat: Guam’s CERCLA Claim Allowed, a “Roundup” Verdict Upheld, and Judicial Process Privilege Lost

June 14, 2021 — Anthony B. Cavender - Gravel2Gavel
This is a brief account of some of the important environmental and administrative law cases recently decided. THE U.S. SUPREME COURT BP PLC, et al. v Mayor and City of Baltimore The issue the court confronted was a procedural matter: Can the defendant energy companies use the federal removal statutes (see 28 USC Section 1442) to remove a state law climate change lawsuit to federal court? Here, a group of energy companies were sued by the mayor and city council of Baltimore in state court, where they alleged that the defendants had concealed the adverse environmental effects of the fossil fuel products they promoted and sold in Baltimore City. Several similar lawsuits have been filed in many state courts, where typically it is alleged that the defendants can be sued on various common law theories. Rather than defend these cases in state court, the defendants have sought to remove these cases to federal court because climate change liability appears to be an issue that should be settled at the federal level. These efforts have been unsuccessful, with most federal trial and appellate courts holding that the reasons cited for removal (oftentimes the federal officer removal statute) have not been persuasive. In this case, both the Maryland federal district court and the U.S. Court of Appeals held they had no jurisdiction to authorize removal, and thus returned the case to the state court. Noting that the U.S. Court of Appeals for the Seventh Circuit ruled that a removal action could be countenanced under Section 1442, thus creating a circuit split, the Supreme Court held that a straightforward reading of the removal statute empowers the reviewing court to examine all theories for removal that a district court has rejected. Consequently, the Court remanded the case to the Fourth Circuit where it can decide, “in the first instance,” whether there actually exist grounds to remove this case to federal court. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

California Clarifies Its Inverse Condemnation Standard

December 30, 2019 — Gus Sara - The Subrogation Strategist
In City of Oroville v. Superior Court, 446 P.3d 304 (Cal. 2019), the Supreme Court of California considered whether the City of Oroville (City) was liable to a dental practice for inverse condemnation damages associated with a sewer backup. The court held that in order to establish inverse condemnation against a public entity, a property owner must show that an inherent risk in the public improvement was a substantial cause of the damage. Since the dental practice did not have a code-required backwater valve — which would have prevented or minimized this loss — the court found that the city was not liable because the sewage system was not a substantial cause of the loss. This case establishes that a claim for inverse condemnation requires a showing of a substantial causal connection between the public improvement and the property damage. It also suggests that comparative negligence can be a defense to inverse condemnation claims. In December 2009, a dental practice, WGS Dental Complex (WGS), located in the City, incurred significant water damage as a result of untreated sewage from the City’s sewer main backing up into WGS’ building. WGS submitted a claim to its insurance carrier, The Dentists Insurance Company (TDIC) and, in addition, sued the City for its uninsured losses, alleging inverse condemnation and nuisance. TDIC joined the litigation, alleging negligence, nuisance, trespass and inverse condemnation. Under California law, when a government entity fails to recognize that an action or circumstance essentially amounts to a taking for public use, a property owner can pursue an inverse condemnation action for compensation. The City filed a cross-complaint against WGS for failing to install a code-required backwater valve on their lateral sewer line, which would have prevented or minimized the backup. The City filed a motion for summary judgment, which the trial court denied. WGS then sought a judicial determination on the issue of inverse condemnation. The City presented evidence that the sewage system was designed in accordance with industry standards, and that WGS failed to comply with the City’s plumbing code by failing to install a backwater valve on its private sewer lateral. The trial court found the City liable for inverse condemnation because the blockage that caused the backup originated in the City’s sewer line. The court held that the blockage was an inherent risk of sewer operation. The Court of Appeals affirmed the decision, holding that the City would have had to prove that the WGS’s lack of a backwater valve was the sole cause of the loss in order to absolve itself of liability. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

What Happens When Dave Chappelle Buys Up Your Town

June 05, 2023 — Tyler J. Kelley - Bloomberg
America’s most reclusive comedian isn’t hard to find. Dave Chappelle hangs around downtown, buys coffee and shops like any other resident of Yellow Springs, Ohio. He smokes cigarettes and chats with passersby. He knows people, and they know him. Yellow Springs is a special place. “Growing up here, literally on any given Saturday or Sunday, in any house that you walked into, there was going to be someone who was Jewish, someone who was an atheist, someone from a different country, somebody who was a person of color,” says Carmen Brown, a Black village council member whose family has lived in the town for 150 years. “There was going to be a clown, an astrophysicist, a janitor and a doctor—all hanging out.” Chappelle is a product of this environment, this culture of “discourse without discord,” she says. Read the court decision
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Reprinted courtesy of Bloomberg

Strict Liability or Negligence? The Proper Legal Standard for Inverse Condemnation caused by Water Damage to Property

March 30, 2016 — Charles S. Krolikowski – Newmeyer & Dillion, LLP
Filing a lawsuit against a government entity can be a daunting task given the complexities of tort claims requirements and governmental immunities. A recent decision by the Court of Appeal in Pacific Shores Property Owners Association v. Department of Fish & Wildlife, Case No. C07020 (Jan. 20, 2016), provided welcome clarification as to the proper legal standard for an inverse condemnation action based upon activities of a government entity which cause water damage to private property. Read the court decision
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Reprinted courtesy of Charles S. Krolikowski, Newmeyer & Dillion, LLP
Mr. Krolikowski may be contacted at charles.krolikowski@ndlf.com

Before Collapse, Communications Failed to Save Bridge Project

December 30, 2019 — Scott Judy - Engineering News-Record
The National Transportation Safety Board’s Oct. 8 release of documents related to its FIU bridge collapse investigation raises questions but provides no definitive conclusions about why the partially built structure suddenly crashed to the ground on March 15, 2018, killing six. The last official word on the cause of the fatal collapse will have to await the agency’s final report, scheduled to be released on Oct. 22. Scott Judy, Engineering News-Record Mr. Judy may be contacted at judys@enr.com Read the full story... Read the court decision
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Reprinted courtesy of

Defend Trade Secret Act of 2016–-Federalizing Trade Secret Law

October 07, 2016 — Erin M. Stines and Reed Cahill - Ahlers & Cressman PLLC
The Defend Trade Secret Act of 2016 (DTSA) was signed into law on May 11, 2016, and became effective immediately. The DTSA allows an owner of a trade secret to sue in federal court for trade secret misappropriation. Previously, only state law governed civil misappropriation of trade secrets. While the DTSA largely mirrors the current state of the law under the Uniform Trade Secrets Act (UTSA), adopted by 48 states, including Washington,[1] there are some additions found in the new law. The DTSA imposes the same three-year statute of limitations and authorizes remedies similar to those provided under the UTSA. The DTSA also offers new forms of relief, including a provision permitting ex parte seizure orders (that is, without a hearing or response from the opposing party) to prevent further misappropriation of the trade secret. The DTSA further provides for a new definition of trade secret. The UTSA's definition of a trade secret is a “formula, pattern, compilation, program, device, method, technique, or process.” Under the DTSA, the definition of a “trade secret” is broadened to include “all forms and types of financial, business, scientific, technical, economic, or engineering information...whether tangible or intangible...” [2] Read the court decision
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Reprinted courtesy of Erin M. Stines & Reed Cahill, Ahlers & Cressman PLLC
Ms. Stines may be contacted at erin.stines@ac-lawyers.com

Sellers' Alleged Misrepresentation Does Not Amount To An Occurrence

November 30, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The insurer successfully established on summary judgment that the insureds' alleged misrepresentation in the sale of a condominium was not an occurrence. Novak v. St. Maxent-Wimberly House Condo., 2020 U.S. Dist. LEXIS 167397 (E.D. La. Sept. 14, 2020). State Farm issued the sellers a condominium unit owner's policy. The buyers sued the sellers, contending the sellers had made misrepresentations in the sale process. The sellers allegedly failed to disclose defects in the condominium before and at the time of the sale. State Farm intervened, seeking a declaration that it was not required to defend or indemnify the sellers because there was no occurrence. 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

2018 Update to EPA’s “Superfund Task Force Report”

September 04, 2018 — Anthony B. Cavender - Gravel2Gavel
The U.S. Environmental Protection Agency (EPA) recently released its Superfund Task Force Recommendations 2018 Update (the Update). The Superfund Task Force was established by former EPA Administrator Scott Pruitt to “provide recommendations on an expedited timeframe on how the agency can restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups of sites and promote the revitalization of properties across the country.” Over the years, thousands of sites have been listed on EPA’s National Priority List (NPL) of Superfund sites, but the process by which listed sites are cleaned up and finally removed from the NPL has been agonizingly slow. The process is governed by the National Contingency Plan rules. The Update states that, as of July 3, 2018, there are 1,346 sites listed on the NPL, and overall, 399 sites have been removed from the NPL. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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