CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Don’t Get Caught Holding the Bag: Hold the State Liable When General Contractor Fails to Pay on a Public Project.

January 31, 2018 — Sean Minahan – Construction Contract Advisor
According to a quick Google search the term “holding the bag” comes from the mid eighteenth century and means be left with the onus of what was originally another’s responsibility. Nobody wants to be left holding the bag. But that is the situation our client (subcontractor) found themselves in when upon completion of a public project the general contractor went out of business before paying the remaining amount due and owing to our client. Under Nebraska law, liens are not allowed against public projects. Instead the subcontractor is to make a claim on the payment and performance bond secured by the general contractor at the start of the project. In our case, the general contractor never secured a bond on which to make a claim; consequently, leaving our client holding the bag. Read the court decision
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Reprinted courtesy of Sean Minaham, Lamson, Dugan and Murrary, LLP
Mr. Minahan may be contacted at sminahan@ldmlaw.com

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Court Clarifies Sequence in California’s SB800

December 20, 2012 — CDJ STAFF
As California’s Right-To-Repair law, SB800, nears its ninth birthday, it has remained “largely untested in the legal system” as noted by Megan MacNee of Wood, Smith, Henning & Berman LLP on the site RealEstateRama. She writes that some homeowners have requested documents prior to filing a claim, which she describes as an attempt to “game the system,” and “analogous to requiring a party to litigation to comply with discovery before a complaint is filed.” The court determined that homeowners may not request documents from the builder until they have actually filed a claim. The court noted that SB800 lacks any clear indication that homeowners may request documents before filing a claim (and also does not indicate that a builder would have to provide documents in these circumstances). The court concluded that the section that sets up the prelitigation procedures occurs before they section on documents discovery. “Because the document request is part of the prelitigation procedure, and the prelitigation procedure does not begin until the homeowner has served notice of a claim, it follows that there can be no prelitigation obligation to produce documents under section 912, subdivision (a) unless the homeowner has commenced the prelitigation procedure by serving notice of a claim.” Read the court decision
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Reprinted courtesy of

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Traub Lieberman Partner Lisa M. Rolle Obtains Pre-Answer Motion to Dismiss in Favor of Defendant

August 16, 2021 — Lisa M. Rolle - Traub Lieberman
Traub Lieberman Partner Lisa M. Rolle obtained a motion to dismiss in favor of an international hotel chain. In the case brought before the U.S. District Court, Southern District of New York, the Plaintiff sustained a slip and fall injury in a Portuguese hotel (“Hotel”), which was allegedly caused by violations of building codes and New York and Portuguese negligence laws. The Plaintiff notes that the Hotel utilized the branding affiliated with the international hotel chain, and the named corporate entities are subsidiaries of the parent company of the international hotel chain. Further, Plaintiff alleged that the named corporate entities “owned, operated, maintained, and controlled” the Hotel where the accident occurred, as the international hotel had previously acquired the entity which owned the spa branding utilized. In moving for pre-answer dismissal, Traub Lieberman acknowledged purchase of the managing agent of the Hotel, which became a subsidiary of their operations. However, Traub Lieberman asserted that the international hotel chain had not owned, operated, maintained, or managed the Hotel. Under New York law, parent corporations cannot be held liable for the actions of their subsidiaries, except in cases that support piercing the corporate veil. Traub Lieberman argued that the motion should be granted as a parent company cannot be held liable for acts committed by its subsidiary and further claimed that the parent company has never owned or operated the Hotel. Read the court decision
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Reprinted courtesy of Lisa M. Rolle, Traub Lieberman
Ms. Rolle may be contacted at lrolle@tlsslaw.com

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New Mexico Holds One-Sided Dispute Resolution Provisions Are Unenforceable

November 05, 2024 — Bill Wilson - Construction Law Zone
Dispute resolution provisions that grant one party the unilateral right to choose either litigation or arbitration to resolve disputes are common in the construction industry. The main difference between the two forums is that courts are more likely to strictly enforce contract terms as written as well as the applicable law, while arbitrators make decisions on more equitable considerations, untethered to the contract terms and—to some degree—the law. The party with the sole discretion to select the dispute resolution procedure can select the process most beneficial to its interests based on the nature of the dispute, regardless of who brings the claims. In Atlas Electrical Construction, Inc. v. Flintco, LLC, 550 P.3d 881 (N.M. Ct. App. 2024), the Court of Appeals of New Mexico recently held that an arbitration provision in a subcontract, under which the contractor retained the exclusive right to choose whether disputes arising under the subcontract were litigated in court or arbitrated was unreasonably one-sided, substantively unconscionable, and unenforceable. The Atlas Electrical case involved two sophisticated entities with equal bargaining strength to negotiate the terms of a subcontract. The parties agreed to a subcontract provision which provided in the relevant part:

In the event [contractor] and [subcontractor] cannot resolve the dispute through direct discussions or mediation … then the dispute shall, at the sole discretion of [contractor], be decided either by submission to (a) arbitration … or (b) litigation …

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Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

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Los Angeles Considering Census of Seismically Unstable Buildings

August 27, 2013 — CDJ STAFF
In 1994, after the Northridge earthquake lead to the deaths of 57 people and $2 billion in damage, the Los Angeles City Council considered making a list of buildings that were vulnerable to failure in earthquakes and mandating that they be made seismically sound. The measure did not come to pass. Tom LaBonge, a member of the council, is seeking to finally get that inventory done. According to the Los Angeles Times, thousands of buildings in Los Angeles were constructed with a ground floor level that is insufficient to support the rest of the building in the event of an earthquake. These “soft-story” buildings can be reinforced to better resist earthquakes, but first they need to be identified. Owners of apartment buildings worry about the cost of the retrofits, suggesting that if the city is going to come up with mandatory retrofits, they should also “help property owners pay for it,” as Beverly Kenworthy, the executive director of the Los Angeles division of the California Apartment Association told the Times. San Francisco recently did require retrofits, finding about 3,000 apartment buildings that were at seismic risk. Still, San Francisco doesn’t seem to have moved any faster than Los Angeles, as they were responding to the Loma Prieta earthquake of 1989, seven years before the Northridge quake. Read the court decision
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Reprinted courtesy of

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Get Construction Defects in Writing

December 11, 2013 — CDJ STAFF
Sometimes, even if a developer is willing to make a repair, sometimes the repair doesn’t get to the actual problem, according to Nicholas D. Cowie of Cowie & Mott, writing on his blog. He notes that “getting it ‘right’ the first time is important and written documentation is key.” He gives the example of “when a developer agrees to informally repair a window or roof leak, the ‘repair,’ as far as the developer is concerned, may consist merely of sending out a worker with a caulk gun to seal gaps that should have been protected with a solid flashing material during the original installation.” As a better course, he says that homeowner associations should “request a written description of the proposed repair” in order that it can be evaluated. This also allows follow-up to determine if the agreed-upon repair was done properly. And, although some homeowners associations would rather not have the original subcontractor repair their own work, here warranties often come into play. Read the court decision
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Coronavirus and Contract Obligations

March 30, 2020 — David R. Cook - AHC Construction and Procurement Blog
The Coronavirus (COVID-19) pandemic has caused a global disruption to businesses, causing many to temporarily close and lay off employees. As businesses assess the short– and long–term economic impact of COVID-19, they should also evaluate what contractual obligations and remedies are available under various agreements (e.g., leases, vendor agreements, and supply agreements). When performance may be delayed or may not occur altogether, businesses should consider their force majeure clauses, if any, and the doctrines of impossibility, impracticability, and frustration of purpose. Force Majeure Generally, unless a contract provides that performance will be suspended or relieved when certain events occur (e.g., “acts of God,” government regulation, acts of war or terror, strikes), each party is obligated to perform. However, when there is an express force majeure provision, certain events or acts may excuse non-performance or delayed performance. But depending on the jurisdiction, courts may construe force majeure provisions narrowly and excuse performance only for those events expressly listed in the clause. Nonetheless, if the force majeure provision includes pandemic, epidemic, quarantine, government act, disease, or similar terms, then the COVID-19 pandemic may excuse performance or allow delayed performance. Read the court decision
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Reprinted courtesy of David R. Cook, Autry, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

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Tropical Storms Pile Up Back-to-Back-to-Back Out West

September 17, 2014 — Brian K. Sullivan – Bloomberg
Tropical Storm Polo, the 16th storm of an unusually active eastern Pacific hurricane season, is on a path eerily like that of Odile, which blasted the Baja California peninsula earlier this week. Odile went ashore late Sept. 14 with top winds of 125 miles (201 kilometers) per hour, the strongest storm to hit the region since 1967. As its winds swept the resort city of Cabo San Lucas, it was a Category 3 storm on the five-step Saffir-Simpson scale and a major hurricane. At its peak, hours before landfall, Odile’s winds reached 135 mph, Category 4-force. Photos from Mexico’s Baja California Sur show houses destroyed, hotels piled with debris and gaping holes in the local airport. At least 30,000 tourists were stranded. Read the court decision
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Reprinted courtesy of Brian K. Sullivan, Bloomberg
Mr. Sullivan may be contacted at bsullivan10@bloomberg.net

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