CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Need and Prejudice: An Eleventh-Hour Trial Continuance Where A Key Witness Is Unexpectedly Unavailable

July 10, 2018 — Angela S. Haskins & Allegra Perez - Haight Brown & Bonesteel LLP
In Padda v. Superior Court (GI Excellence), No. E070522, the Court of Appeal, Fourth Appellate District, Division Two, recently held that a trial court abused its discretion in denying Defendants/Cross-Complainants’ request for a trial continuance where their key expert witness suddenly became ill twelve days before trial and before his deposition had been taken. Reprinted courtesy of Angela S. Haskins, Haight Brown & Bonesteel LLP and Allegra Perez, Haight Brown & Bonesteel LLP Ms. Haskins may be contacted at ahaskins@hbblaw.com Ms. Perez may be contacted at aperez@hbblaw.com Read the court decision
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Savannah Homeowners Win Sizable Judgment in Mold Case against HVAC Contractor

August 10, 2017 — David R. Cook Jr. - Autry, Hanrahan, Hall & Cook, LLP
Two Savannah homeowners filed a complaint against a local air conditioning contractor and its insurer, asserting claims of professional negligence and fraud. The couple alleged that in March 2009, the contractor replaced the duct system of their home’s air conditioning unit. The following June, the couple discovered mold growth on the vent covers. They hired an independent contractor who upon inspection concluded that the duct system, which contained holes, gaps, loose connections and insufficient mastic, had been defectively installed in violation of the applicable city ordinances, resulting in excessive moisture and mold contamination throughout the residence. The homeowners alleged that they grew ill with respiratory problems as a result and were subsequently forced to vacate the residence and abandon their personal belongings. Their complaint sought to recover repair costs, moving costs, expenses associated with rental property, costs of living, costs related to the replacement of personal property, medical expenses, punitive damages, attorney’s fees, and costs of litigation. Read the court decision
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Reprinted courtesy of David R. Cook, Autry, Hanrahan, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

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Contract Provisions That Help Manage Risk on Long-Term Projects

June 29, 2020 — Jason Lambert - Construction Executive
Few things can dampen the thrill and promise of a newly closed construction deal than the realization that it could quickly become a losing proposition for the contractor depending on economic and other conditions. In an era of instant information, constantly adjusting markets and political extremes, projects that start under one set of assumptions or conditions can occur or conclude under much different ones. While no one has a crystal ball, there are contractual provisions that can provide clear guidance in the face of many “what ifs” that can arise in construction. One of the chief concerns a contractor should have in a project lasting more than a few months is what impact price increases will have on the profitability of the job. On a true cost-plus project, this may be of little concern, but on any project with a limitation on costs or a guaranteed maximum price, contractors should insist on a procedure to revisit the limitation or price if certain conditions change. This can be as simple as allowing the contractor to receive an upward adjustment in the price if costs increase by more than a certain percentage. It can be as complicated as requiring multiple new bids and disclosures to the property owner, architect or project manager and allowing approval of new suppliers or subcontractors to limit cost increases to the cheapest increase. The protection—and certainty—to the contractor though, comes from having a process in the contract to address cost increases, whether it is simple or complex. Reprinted courtesy of Jason Lambert, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Lambert may be contacted at Jason.lambert@dinsmore.com

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Attempt to Overrule Trial Court's Order to Produce Underwriting Manual Fails

April 25, 2022 — Tred R. Eyerly - Insurance Law Hawaii
After being ordered by the trial court to produce its underwriting manual, the insurer's writ of certiorari to quash the order was denied by the Florida Court of Appeals. People's Trust Ins. Co. v. Foster, 2022 Fla. App. LEXIS 542 (Fla. Ct. App. Jan. 26, 2022). The insured sued after his claim for damage caused by a water pipe in his home that leaked. In discovery, the insurer refused to produce its underwriting manual. Ruling on a motion to compel, the trial court ordered that the manual be produced. The insurer appealed. On appeal, the insurer argued its underwriting manual was categorically prohibited in breach of contract cases until and unless bad faith litigation commenced. Although courts had quashed the premature discovery of insurers' business practices, claims files, underwriting files, underwriting manuals, and the like in breach of contract actions, there was no categorical legal rule prohibiting discovery of underwriting manuals in breach of contract cases, especially if they were relevant. 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

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Colorado House Bill 19-1170: Undefined Levels of Mold or Dampness Can Make a Leased Residential Premises Uninhabitable

April 03, 2019 — Steve Heisdorffer - Colorado Construction Litigation
One of the 407 bills the Colorado legislature is considering as of the date of this blog post is House Bill 19-1170, the Residential Tenants Health and Safety Act, which can be found at https://leg.colorado.gov/bills/hb19-1170 and clicking on the link for the recent bill text. The bill passed the House on February 26 and is in the Senate for consideration. The bill currently adds two substantive conditions to those conditions that make a residential premises uninhabitable. One is the lack of functioning appliances that conformed to applicable law when installed and that are maintained in good working order. The second is “mold that is associated with dampness, or there is any other condition causing the premises to be damp, which condition, if not remedied, would materially interfere with the health or safety of the tenant…,” referred to here as “the mold or dampness provision.” The bill also amends various procedural provisions of Colorado law to make enforcement by a tenant easier and broadens tenant remedies. The bill grants jurisdiction to county and small claims courts to grant injunctions for breach. This article focuses on the mold or dampness provision. The mold or dampness provision is vague and will likely lead to abuse. First, there is mold everywhere. While expert witnesses routinely testify about the level of exposure that is unacceptable, no generally accepted medical standards for an unacceptable level of mold exposure currently exist, and each person reacts to mold differently. There is no requirement in the bill that mold exposure exceed levels that are generally considered harmful by experts in the field, or even in excess of naturally occurring background levels. Second, some sources estimate that there are over 100,000 different species of mold. No harmful effects have been shown for many species of mold, while other species of mold are considered harmful. Read the court decision
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Reprinted courtesy of Steve Heisdorffer, Higgins, Hopkins, McLain & Roswell
Mr. Heisdorffer may be contacted at heisdorffer@hhmrlaw.com

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Illinois Court of Appeals Addresses What It Means to “Reside” in Property for Purposes of Coverage

July 16, 2023 — James M. Eastham - Traub Lieberman
In Dardar v. Farmers Auto. Ins. Ass'n, 2023 IL App ( 5th ) 220357-U, the Illinois Fifth District Court of Appeals addressed an insured’s suit against her property insurer after the carrier denied coverage for a fire loss. The property in question was inherited by the Plaintiff from her brother and was in the process of being renovated at the time of the fire loss. After the fire, the Plaintiff’s homeowners carrier denied the claim on the grounds that the Plaintiff was not occupying the property at the time of the fire and was therefore not covered under the terms of the policy. It was undisputed that the Plaintiffs never lived in or physically occupied the home. Correspondingly, the carrier denied the claim on the basis that the policy only covered the Plaintiff’s "residence premises," which was defined as: (1) the one-family dwelling where you reside; (2) the two, three, or four-family dwelling where you reside in at least one of the units; or (3) that part of any other building in which you reside. The carrier determined that the Plaintiff did not “reside” at the property and therefore were not covered under the policy terms. Read the court decision
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Reprinted courtesy of James M. Eastham, Traub Lieberman
Mr. Eastham may be contacted at jeastham@tlsslaw.com

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Construction Injuries Under the Privette Doctrine. An Electrifying, but Perhaps Not Particularly Shocking, Story . . .

January 05, 2017 — Garret Murai – California Construction Law Blog
We’ve talked about the Privette doctrine before (see here, here, and here). The Privette doctrine, named after the court case Privette v. Superior Court (1993) 5 Cal.4th 689, provides in general that project owners and contractors are not responsible for worksite injuries suffered by employees of lower-tiered contractors they have hired, the rationale being that such workers should already be covered under their employers’ workers’ compensation insurance policies. In the twenty years since Privette was decided, however, several exceptions have evolved that have narrowed the doctrine. One exception, known as the retained control exception, allows a contractor’s employees to sue the “hirer” of the contractor (that is, the higher-tiered party who “hired” the lower-tiered party whose employee is injured) when the hirer retains control over any part of the work and negligently exercises that control in a manner that affirmatively contributes to the employee’s injury. Hooker v. Department of Transportation (2002) 27 Cal.4th 198. Another exception, known as the nondelegable duty exception, permits an injured worker to recover against a hirer when the hirer has assumed a nondelegable duty, including statutory and regulatory duties, that it breaches in a manner that affirmatively contributes to the injury. Padilla v. Pomona College (2008) 166 Cal.App.4th 661. In a recently decided case, Khosh v. Staples Construction Company, Inc., Case No. B268937 (November 17, 2016), the California Court of Appeals for the Second District examined the application of the Hooker and Padilla exceptions where a general contractor was contractually responsible for overall site safety. 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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AI-Powered Construction Optioneering Today

April 08, 2024 — Aarni Heiskanen - AEC Business
In this episode of the AEC Business Podcast, Aarni Heiskanen interviews René Morkos, the founder and CEO of ALICE Technologies. They discuss construction tech, AI, and ALICE Core, the company’s latest product launch. How the Construction Technology Landscape has Changed The construction tech industry has evolved significantly since 2015, as discussed with René. In 2015, there was a lack of understanding and reluctance toward construction tech, with some investors even hesitant to invest in the sector. However, by 2017-2018, there was a noticeable shift as construction tech became a sought-after investment opportunity. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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