Cambridge Massachusetts Building Expert Directory

Policyholders' Coverage Checklist in Times of Coronavirus

March 16, 2020 — Richard W. Brown & Andres Avila - Saxe Doernberger & Vita, P.C.
Every state but West Virginia have reported hundreds of Coronavirus (COVID-19) cases in the U.S. More than half are in California, Washington, New York, and Massachusetts. The unprecedented social and economic impact of the Coronavirus makes it necessary for policyholders to keep open all lines of communications with their insurance brokers, insurance carriers, financial advisors, safety & compliance experts, and insurance coverage counsel even if it is not certain whether they will need to file insurance claims. As always, the specific terms of the insurance policies and the way losses are documented and presented to insurance carriers will be pivotal in securing coverage for Coronavirus-related exposures, such as jobsite closures, stop-work orders, remote work mandated measures, business interruption, event cancelation, employees’ claims, among others. Policyholders should consider the following checklist of key insurance coverage tasks to be better positioned to face the risks posed by the Coronavirus:

Pre-Loss Risk Management: A careful review of the policyholder’s insurance program may show coverage for the Coronavirus outbreak. Now is the time to assess, with the guidance of your brokers and insurance coverage counsel, the specific coverages in place. Policyholders may want to particularly review the terms and conditions of their Property, General Liability, Pollution, Directors & Officers, Professional Liability, Fiduciary Liability, as well as Event Cancelation Insurance coverages, among others depending on their specific business trade. For instance, Policyholders would want to assess, ahead of time, whether there are bacterial/virus/communicable diseases/pandemics exclusions in their policies. It is also relevant to review, with a keen eye, the insuring agreements and pose hypotheticals to stress test them and see how far coverage would go with respect to a Coronavirus exposure;

Reprinted courtesy of Richard W. Brown, Saxe Doernberger & Vita, P.C. and Andres Avila, Saxe Doernberger & Vita, P.C. Mr. Brown may be contacted at rwb@sdvlaw.com Mr. Avila may be contacted at ara@sdvlaw.com Read the court decision
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New Addition To New Jersey Court Rules Impacts More Than Trial Practice

November 16, 2020 — Thomas Regan & Karley Kamaris - Lewis Brisbois Newsroom
On September 1, 2020, New Jersey adopted a brand-new rule of procedure, Rule 4:25-8, which properly defines motions in limine. On its face, the new rule prohibits, broadly, filing motions in limine that may have a dispositive effect on the case. Most notably, the rule expressly eliminates the ability to move, on motion in limine, to bar expert testimony in matters in which such experts are required to sustain a party’s burden of proof. This effectively makes the summary judgment phase of litigation the last chance to bar experts from a jury trial or take any other dispositive action The new rule comes at a time in which the evidentiary standard for experts is shifting in New Jersey. In October 2018, the New Jersey Supreme Court reconciled the framework for analyzing the reliability of expert testimony under N.J.R.E. 702 and 703 in In re: Accutane Litigation. Significantly, New Jersey, a traditional Frye jurisdiction, incorporated certain federal Daubert factors for expert “use by our courts” but, overall, fell short of adopting the Daubert standard as a whole. In applying the relevant Daubert factors, the trial court in Accutane held that the subject experts’ methodologies were unsound due to the failure to apply fundamentals of the scientific method of the medical-evidence hierarchy. The decision resulted in the dismissal of over 3,000 claims. Reprinted courtesy of Thomas Regan, Lewis Brisbois and Karley Kamaris, Lewis Brisbois Mr. Regan may be contacted at Thomas.Regan@lewisbrisbois.com Ms. Kamaris may be contacted at Karley.Kamaris@lewisbrisbois.com Read the court decision
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Catch 22: “If You’re Moving Dirt, You Need to Control Your Dust” (But Don’t Use Potable Water!)

February 18, 2015 — Stephen McKae – California Construction Law Blog
Returning from an Oregon vacation this past Summer along I-5, I found frequent reminders of the extraordinary drought conditions prevailing across California. A grey smoky gloom blanketed the California-Oregon border from Ashland to Weed from at least five wildfires. The prediction of rains in the north state was more curse than blessing as lightning threatened to touch off tender-dry fuel in the forests and start more fires. Farmers tilling fields produced massive dust clouds. And under the I-5 bridge along the Sacramento River arm of Lake Shasta, the lake had receded to the original streambed. On NOAA’s Palmer Drought Severity Index, nearly all of California is listed as in a condition of extreme or severe drought, and the Governor has issued a Proclamation of Continued State of Emergency requiring water conservation measures affecting all California residents. Indeed, early August news reports indicate that hopes of relief from an El Nĩno year are waning. The State Water Resources Control Board’s Emergency Regulation No. 2014 issued July 15 mandates action to reduce water use and require larger water suppliers to activate their Water Shortage Contingency Plan. The emergency regulation will remain in effect until April 25, 2015 unless extended due to ongoing drought conditions. Read the court decision
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Reprinted courtesy of Stephen McKae, Wendel Rosen Black & Dean LLP
Mr. McKae may be contacted at smckae@wendel.com

One Sector Is Building Strength Amid Slow Growth

November 18, 2019 — Michael Msika - Bloomberg
If you had to guess which stocks are posting top gains given this year’s gloomy economic outlook, you might be surprised by the answer. Construction and material shares, despite most macro indicators pointing to slowing global growth, are now leading the pack in Europe. The sector’s up 32% already this year, knocking food-and-drinks stocks off the pedestal, and there appear few signs of the rally stopping anytime soon. Read the court decision
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Reprinted courtesy of Michael Msika, Bloomberg

The Unthinkable Has Happened. How Should Contractors Respond?

May 11, 2020 — Bruce Orr - AEC Business
Any construction veteran expects the economy to contract and expand. However, the global pandemic presents contractors with a challenge unlike any in recent memory. How should they respond in an environment of such uncertainty? For some perspective, I chatted with Dr. John Killingsworth, a construction management professor at Colorado State University who has conducted extensive research on how contractors can weather economic downturns. BRUCE ORR: John, let’s say you’re in IT or are a c-suite executive at a contracting firm. This event has occurred. What are some of the questions you should be asking right now? JOHN KILLINGSWORTH: For starters, we have to acknowledge that the uncertainties are so tremendous that many contractors have no choice but to be reactive in the short term. They’re literally not sure whether particular job sites will be open or closed tomorrow or whether they’ll go to work next week. They’re also looking at predictions—from highly qualified statisticians, public health officials and others—that are just all over the map due to the limited nature of the data we have at hand. Read the court decision
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Reprinted courtesy of Bruce Orr, AEC Business
Mr. Orr may be contacted at bruce@pronovos.com

Home Construction Thriving in Lubbock

December 30, 2013 — CDJ STAFF
The 2013 numbers for home construction aren’t ready yet, but the January through November numbers for Lubbock, Texas show a 42% increase over the number of construction permits issued for single-family homes in the first 11 months of 2012. The number look even better compared to 2011’s totals, according to KFYO. Read the court decision
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The Need to Be Specific and Precise in Drafting Settling Agreements

December 30, 2013 — W. Berkeley Mann, Jr. — Higgins, Hopkins, McLain & Roswell, LLC
The case of Bituminous Casualty Corp. v. Hartford Casualty Insurance Corp., 2013 WL 452374 (D. Colo. February 6, 2013) is instructive as an example of both the confusion and resulting escalation of litigation that can result from a lack of clarity in settlement negotiations. This is particularly true where parties settle outside of their insurance coverage, and/or without notifying their insurer(s), which have denied coverage. The case involved coverage litigation following settlement of a multi-party construction defect case involving the Rivergate multi-family residential development in Durango, Colorado. The condominium owners association sued, among others, the developer (Rivergate Lofts Partners, hereafter “RLP”) and the general contractor (Genex Construction, LLC, hereafter “Genex”). This follow-on case involved the insurers for RLP (“Hartford”) and Genex (“Bituminous”). The coverage dispute was complicated by the Bituminous allegations that Hartford insured Genex in its alleged role as a manager for RLP, as part of Hartford’s insurance of RLP more generally. The underlying facts were that Hartford denied insurance coverage and defense to Genex/Bituminous. The underlying construction defect case went to mediation, with the COA, RLP, and Genex all in attendance with their respective insurer representatives, and coverage counsel. While the evolving facts of that mediation were later disputed as to their motives, intentions, and the contemporaneous knowledge of the parties, the facts reflected in documents were fairly clear. Read the court decision
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Reprinted courtesy of W. Berkeley Mann, Jr.
W. Berkeley Mann, Jr. can be contacted at mann@hhmrlaw.com

New York Appellate Division: Second Department Contradicts First Department, Denying Insurer's Recoupment of Defense Costs for Uncovered Claims

March 01, 2021 — Jasjeet K. Sahani - Saxe Doernberger & Vita, P.C.
New York law has historically allowed insurers to recoup defense costs paid on behalf of an insured if there is ultimately no coverage for the underlying action, provided that the insurer reserved its rights to seek reimbursement. On December 30, 2020, the New York Appellate Division, Second Department declined to follow this longstanding principle in American Western Home Insurance Co. v. Gjonaj Realty & Mgt. Co.,1 by holding that the insurer was not entitled to recoup defense costs, even where it was determined that the claim was not covered under the insurance policy. In American W. Home Ins. Co., the insureds were named as defendants in an underlying personal injury action. More than four years after the accident, and a $900,000 default judgment against the insureds, they tendered the lawsuit to their commercial general liability insurer, American Western Home Insurance Company (“American”). American denied coverage based on untimely notice, but after the default judgment was subsequently vacated, it agreed to defend the underlying action subject to a reservation of rights. The reservation of rights specifically reserved American’s right to deny coverage if the vacatur of the default judgment against the insureds was reversed. Further, American reserved its right to recover the costs of defending the underlying litigation. Read the court decision
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Reprinted courtesy of Jasjeet K. Sahani, Saxe Doernberger & Vita, P.C.
Mr. Sahani may be contacted at JSahani@sdvlaw.com

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